Gebrehiwot v State of Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0102

TADDIS GEBREHIWOT

(WHO SUES BY HIS LITIGATION GUARDIAN GEBREE MENGESHA)

Applicant

STATE OF VICTORIA

Respondent

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JUDGES:	TATE, KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2020
DATE OF JUDGMENT:	8 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 315
JUDGMENT APPEALED FROM:	[2019] VCC 1229 (Judge KL Bourke)

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TORTS ― Battery and false imprisonment ― Where applicant assaulted and handcuffed by police ― Where jury found police acted with lawful justification in effecting applicant’s arrest under s 462A of the Crimes Act 1958 ― Whether judge erred by failing to direct jury as to elements of s 462A ― Lawful justification central issue at trial ― Whether miscarriage of justice.

HUMAN RIGHTS ― Charter ― Relevance of Charter to jury deliberations ― Whether exemplary damages available to reflect breach of applicant’s Charter rights ― Obligation to interpret legislation compatibly with Charter ― Charter of Human Rights and Responsibilities ss 32, 38(1), 39.

PROCEDURE ― Cross examination ― Rule in Browne v Dunn ― Whether judge erred by directing jury that allegations of lying were not put to witness.

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APPEARANCES:

Counsel

Solicitors

For the Applicant

Mr A Clements QC with

Ms S Gold

Robinson Gill

For the Respondent

Mr J Ruskin QC with
Mr M Hooper

Russell Kennedy

TATE JA
KAYE JA
EMERTON JA:

TABLE OF CONTENTS

Introduction and summary......................................................................................

2

The incident in a public square...............................................................................

3

Proceedings in tort....................................................................................................

7

The Charter ruling.....................................................................................................

11

The trial......................................................................................................................

16

Grounds of appeal.....................................................................................................

32

The central issue of lawful justification under s 462A— Grounds 2 and 5.....

34

The meaning and scope of s 462A................................................................................

34

What direction ought to have been given on s 462A?.................................................

44

Was the Charter ruling made in error? — Ground 1............................................

50

Should counsel have alleged directly that SC Miller was lying? — Ground 3

55

Was the verdict on Question 1 unreasonable? — Ground 4..............................

57

Conclusion.................................................................................................................

58

Introduction and summary

Taddis Gebrehiwot (‘Gebrehiwot’) brought proceedings in tort in the County Court against the State of Victoria claiming damages for battery and false imprisonment following an incident with officers of Victoria Police in which he was injured. The State admitted that force was used but relied on the defence that the police officers acted with lawful justification in accordance with s 462A of the Crimes Act 1958.[1] The verdict of the jury showed it accepted that defence.
[1]Section 462A of the Crimes Act is set out at [26] below.

Gebrehiwot applies for leave to appeal against the jury verdict on the ground that the trial judge misdirected the jury in relation to the defence of lawful justification by failing to give a direction in relation to the meaning, or elements, of s 462A of the Crimes Act. He also contends that the verdict was unreasonable and that there was a misdirection by the judge that an allegation that one of the police officers was lying was not directly put to him. He further seeks leave to appeal against a ruling the judge gave that the issue of the compatibility of the police officers’ conduct with the Charter of Human Rights and Responsibilities (‘the Charter’)[2] was not to be left to the jury (‘the Charter ruling’).[3]
[2]Charter s 1(1).
[3]Gebrehiwot (who sues by his litigation guardian Tamar Hopkins) v Victoria (Ruling No 2) [2019] VCC 1229.

For the reasons below, we grant leave to appeal on grounds 1, 2 and 5 and allow the appeal.[4]
[4]In what follows, for convenience, we refer simply to ‘the appeal’ and to ‘grounds of appeal’.

In our view, the absence of a direction on what was the central issue in the trial — the issue of whether the force used by the police officers was authorised under s 462A to effect Gebrehiwot’s lawful arrest — resulted in a substantial miscarriage of justice. Section 462A is a complex section involving both subjective and objective elements and the jury was not given the assistance it needed to determine correctly whether each of the elements was made out in the circumstances of the case.

The incident in a public square

Gebrehiwot was born in 1979 in Ethiopia. Between the ages of 6 and 13, he lived in a refugee camp on the border between Ethiopia and Sudan. He lived in Khartoum in Sudan for three years and then, when he was 16 years old, came to Australia with family members. He completed some schooling in Melbourne and then worked in labouring and factory roles. He has two teenage children who live with their mother. He has been unemployed since around 2005. Gebrehiwot was diagnosed with an intellectual disability in 2012.[5]
[5]By reason of Gebrehiwot’s disability, Ms Tamar Hopkins was appointed as his litigation guardian. At the hearing of the appeal, the Court granted leave, pursuant to r 15.03(4)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules of Court’) for Ms Hopkins to withdraw and for Mr Gebree Mengesha to replace her as Gebrehiwot’s litigation guardian for this proceeding.

On 17 November 2014, Gebrehiwot went out for dinner with his stepbrother[6] and a friend of his stepbrother, at an Ethiopian restaurant in Footscray. He was at the restaurant for about 30 to 45 minutes, and he gave evidence at trial that he drank three to four beers in that time. After dinner, his stepbrother and friend left. Gebrehiwot then went to Maddern Square, a nearby public square, to catch up with other friends. Maddern Square is part of a designated area in the Footscray central business district (‘CBD’) where alcohol is not to be consumed. Gebrehiwot gave evidence that he consumed a cup of ‘wine or something’ while at Maddern Square. In cross-examination he agreed that he had previously said he drank a few beers and some wine over the course of being at the restaurant and at Maddern Square but could not remember the exact number of drinks he had consumed.
[6]In his oral evidence, Gebrehiwot variously referred to his stepbrother as his brother or his cousin. When asked to clarify, he explained that the man is his stepbrother but that to him the relationship is the same as one between brothers or cousins.

On the same day, 17 November 2014, two African men attempted an armed robbery at the Liquorland store at the corner of Albert and Paisley Streets, Footscray. Senior Constable Jonathon Miller (‘SC Miller’)[7] went to the Liquorland store to investigate and view Liquorland’s CCTV footage of the attempted armed robbery. He identified at least one of the suspects. He and Detective Senior Constable Brett Van Der Vliet (‘DSC Van Der Vliet’) patrolled the immediate vicinity but were unable to locate anyone in relation to the attempted armed robbery. They returned to Footscray police station.
[7]SC Miller was Sergeant Miller by the time of the trial.

The Footscray police station can view real-time CCTV footage of much of Footscray CBD including Maddern Square. An officer over police radio communications reported that there were a ‘few Africans’ at Maddern Square. As part of the investigation into the attempted armed robbery, SC Miller and DSC Van Der Vliet attended Maddern Square in one car, and Detective Senior Constable Brendan Devenish (‘DSC Devenish’) and Detective Senior Constable Clare Turner (‘DSC Turner’) attended in another car. They arrived at Maddern Square at around 10:30pm.

Recordings of police radio communications indicated that at least one of the suspects in the attempted armed robbery was identified as being Sudanese.[8] Gebrehiwot was already known to SC Miller and was not suspected of being involved in the attempted armed robbery.
[8]SC Miller gave evidence that he thought one of the males at Maddern Square looked like the male who had committed the attempted robbery because of his distinctive clothing. However, it was noted in the police communications that none of the men at Maddern Square matched the descriptions of the suspects.

The interaction between Gebrehiwot, his companions, and the police, was partly captured on the CCTV footage of Maddern Square. The video CCTV footage (‘the footage’) is not accompanied by audio. At the trial the jury was shown the footage several times. On the appeal, the Court was invited to view the footage. All members of the bench viewed the footage multiple times.

In summary, the footage shows that the police officers arrived at Maddern Square in two vehicles. SC Miller, DSC Van Der Vliet, DSC Devenish (collectively, ‘the police officers’) and DSC Turner alighted from their cars.[9] The police officers questioned Gebrehiwot and his companions. Seconds after SC Miller arrived at Maddern Square he pushed Gebrehiwot with an open hand (the first assault).[10] Sometime later, SC Miller took Gebrehiwot to the ground (the second assault). This manoeuvre involved SC Miller grabbing on to Gebrehiwot’s upper body and rapidly bringing his body down to the concrete ground. SC Miller described it in his notes as a ‘neck sling’.[11] While Gebrehiwot was on the ground, DSC Van Der Vliet, DSC Devenish and SC Miller held on to Gebrehiwot to restrain and handcuff him (the third assault). While these were described as ‘assaults’ the judge explained in her charge to the jury that in a civil case ‘assault’ means creating fear in another person of harmful or offensive behaviour whereas ‘battery’ refers to conduct, as here, that amounts to actual intentional contact.
[9]DSC Turner was not named as one of ‘the police members’ in the proceedings in the County Court against whom Gebrehiwot claimed damages.
[10]SC Miller admitted that in fact he pushed Gebrehiwot three times to create distance between them. See [54] below.
[11]This was later described by the judge in her charge to the jury as ‘the takedown’.

Gebrehiwot is 173 cm tall and, on 17 November 2014, weighed about 60 kg. SC Miller is 183 cm tall and weighed about 100 kg. When his body made contact with the ground, Gebrehiwot landed on his right index finger. While he was on the ground, the police officers observed that he had a small graze on his eyebrow and a bloodied finger, with his fingernail ‘ripped up’. The police officers called an ambulance.

While Gebrehiwot was handcuffed, the police officers received a query over police communication radio as to whether further police attendance was required as back up. DSC Van Der Vliet responded: ‘No that’s a negative, we’ve got heaps of units here, we’ve just got a few Africans popping their heads up occasionally’. DSC Van Der Vliet admitted having made the remark. It was relied on by Gebrehiwot’s counsel at trial as a dehumanising comment.

Gebrehiwot remained handcuffed in police custody until paramedics arrived about 30 minutes later. He was then released and transported by ambulance to hospital. The period of time from the commission of the first assault until he was released to the paramedics constituted the alleged false imprisonment.

The police officers recorded the incident in contemporaneous handwritten notes. Victoria Police members involved in any incident where force is used are required to complete a Use of Force form, which is then recorded and filed at the Use of Force Registry.[12] No Use of Force form was completed in relation to the incident involving Gebrehiwot.[13]
[12]The Use of Force Registry records the details of incidents where force is used by or against police, as well as information about pursuits.
[13]SC Miller said this was an oversight.

SC Miller sent Gebrehiwot an infringement notice dated 17 November 2014 for the offence of being drunk in a public place. Being drunk in a public place is contrary to s 13 of the Summary Offences Act 1966. In the notes section of the infringement notice, the handwritten notes recorded the following:

(M) Drunk upon police arrival, approached police numerous times, Asked to stand back. Spat @ police missing same by 30 cm. Taken to ground and arrested for Drunk. (M) sustained small cut to Eyebrow and broken F/nail. (C)34512.

The exact details of the interactions between the police officers and Gebrehiwot were contested at trial. This included whether Gebrehiwot spat at the officers or was otherwise physically or verbally aggressive, and whether Gebrehiwot was told he was being placed under arrest. Gebrehiwot, SC Miller, DSC Van Der Vliet, and DSC Devenish each gave oral evidence at trial. Their evidence is discussed below.

Gebrehiwot was diagnosed with a compound fracture of his right index finger distal phalanx, requiring internal surgical fixation and implantation of a Kirschner wire or K-wire, a stainless-steel pin used to hold bone fragments together in a corrected position. That procedure was performed as day surgery on 18 November 2014. The K-wire was removed in January 2015. Gebrehiwot’s finger subsequently developed an osteomyelitis bone infection and, as a result, required partial amputation. The amputation surgery was performed on 14 March 2015.

Gebrehiwot, with the assistance of the Flemington and Kensington Community Legal Centre, made a complaint to Victoria Police’s Professional Standards Command regarding the conduct of the police officers. The complaint was forwarded to Victoria Police and on 3 June 2015 police took a statement from Gebrehiwot in support of his complaint. SC Miller and DSC Van Der Vliet gave statements on 10 June 2015.

Proceedings in tort

Gebrehiwot commenced proceedings against the State of Victoria on 9 November 2017. He claimed common law damages for injuries suffered as a result of the tortious conduct of employees, officers or agents of Victoria Police on 17 November 2014. He alleged that at no time was he told by any member of Victoria Police that he was under arrest or why he was under arrest. He claimed that the police officers had committed three assaults that involved unreasonable, disproportionate and grossly excessive force that was not authorised by law. He also claimed that he was unlawfully arrested and falsely imprisoned from the time of the first assault until he was released into the care of paramedics. The conduct was alleged to constitute ‘police torts’ for which the State of Victoria is liable pursuant to s 74 of the Victoria Police Act 2013 (‘the VP Act’). Sections 72, 73 and 74 of the VP Act provide:

72 What is a police tort?
(1)For the purposes of this Act, a police tort is a tort committed by a police officer or protective services officer in the performance or purported performance of the officer's duties.
…

73 What is a police tort claim?
(1) For the purposes of this Act, a police tort claim is a claim for damages or other relief in respect of an alleged police tort.

(2) A police tort claim includes—
(a) an action for damages under Part III of the Wrongs Act 1958 in respect of an alleged police tort; and
(b) a counterclaim for damages or other relief in respect of an alleged police tort committed by a police officer or protective services officer that is made by a person in a legal proceeding brought by the officer against that person; and
(c) any other prescribed action, claim or proceeding in respect of an alleged police tort.

(3) To avoid doubt, subsection (2) does not limit what is a police tort claim.

74       Liability of the State for police torts
(1)       Subject to this section, the State is liable for a police tort.
(2) Subject to subsection (5), the State is not liable for a police tort if the State establishes on a police tort claim that the conduct giving rise to the police tort was serious and wilful misconduct by the police officer or protective services officer who committed the police tort.
(3) If a police officer or protective services officer commits a police tort for which the State is liable, the officer—
(a)       is not liable to any person for the police tort; and
(b) is not liable to indemnify, or to pay any contribution to, the State in respect of the liability incurred by the State.

(4) Subject to subsection (5), the State is not liable for a tort committed by a police officer or protective services officer that is not a police tort.
(5) Subsections (2) and (4) do not apply to a claim brought in reliance on Part XIII of the Wrongs Act 1958.

In the alternative, Gebrehiwot claimed that the police officers, in assaulting and falsely imprisoning him, acted incompatibly with his human rights and/or failed to give proper consideration to his human rights in contravention of s 38(1) of the Charter. This provides:

38 Conduct of public authorities
(1)Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Specifically, Gebrehiwot alleged that the police officers, being public authorities,[14] had breached his right to equality before the law; his right to freedom of movement; his right of liberty and security of person (especially his right not to be subjected to arbitrary arrest or detention; not to be deprived of liberty except on grounds and in accordance with procedures, established by law; and to be informed at the time of his arrest or detention of the reason for his arrest or detention); his right to protection from cruel, inhuman or degrading treatment or punishment; and his right, when deprived of liberty, to humane treatment and to be treated with humanity and respect for the inherent dignity of the human person.[15]
[14]Charter s 4(1)(d).
[15]These rights are identified under ss 8(3), 12, 21, 10(b) and 22(1) of the Charter, respectively.

By reason of the police officers’ tortious conduct and the breaches of the Charter, Gebrehiwot sought damages, including aggravated and exemplary damages. The latter claim was made in [12] of the Further Amended Statement of Claim (‘the FASC’):

[T]he conduct of the Defendant from the time of the first assault and ongoing is sufficiently egregious to warrant an award of exemplary damages so as to:
(a) mark the Court’s disapprobation of the conduct.
(b) act as a deterrent and a spur to the Defendant to ensure that police officers are properly trained and understand their heavy responsibilities.
(c) recognise the unlawfulness of the conduct by the police members, which was in breach of the Plaintiff's human rights under the Charter.

The claim in [12(c)] for exemplary damages based on breaches of the Charter was struck out by the judge before the trial began. Gebrehiwot also sought declarations that the actions of the police officers were unlawful pursuant to s 38(1) of the Charter. Ultimately, this declaratory relief was not pursued.

In its defence, the State of Victoria alleged that Gebrehiwot had approached SC Miller and acted abusively towards him while SC Miller was attempting to speak with other men at the scene. It also claimed that Gebrehiwot was directed by SC Miller on multiple occasions to ‘step back’ and to ‘stop being a nuisance’, had spat in the direction of SC Miller, and had continued to behave aggressively towards him. It said that SC Miller had told Gebrehiwot he was under arrest for being drunk in a public place and for that purpose took hold of him and placed him face down on the ground whereupon DSC Van Der Vliet and DSC Devenish assisted SC Miller to restrain Gebrehiwot for the purpose of him being handcuffed.

On this basis, the State denied that the arrest and detention were unlawful, or that the actions of the police officers had been excessive or unreasonable. Although not expressly mentioned in the State’s defence, s 462A of the Crimes Act permits the use of proportionate force to effect an arrest. Section 462A provides:

462A Use of force to prevent the commission of an indictable offence
A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.

On the appeal, Gebrehiwot submits that the judge failed to explain to the jury the elements, or meaning, of s 462A of the Crimes Act and that the absence of a direction on this central issue vitiates the jury’s verdict which ought to be set aside.

In its defence, the State further maintained that the arrest and detention was lawful and authorised by s 15 of the Summary Offences Act, which provides that a ‘person found drunk, or drunk and disorderly, in a public place may be arrested by … a police officer’.

The State admitted that Gebrehiwot had sustained ‘an injury to his right index finger’ and ‘a minor abrasion to his left forehead’, but it denied that the arrest had caused the infection and subsequent amputation, or any consequential psychiatric harm. It claimed that those injuries arose from Gebrehiwot’s own failures to mitigate his loss, including his delay in seeking medical attention and his failure to attend follow-up doctor appointments after the removal of the K-wire from his finger. The allegation that Gebrehiwot had failed to mitigate his loss was withdrawn during the course of the trial.

With respect to the allegations based on breaches of the Charter, the State admitted that the police officers were public authorities under the Charter and thereby bound by the obligation under s 38 to act compatibly with human rights and to give proper consideration to human rights. It also admitted that the rights relied on had been engaged in the circumstances, or potentially engaged, except for the right to equality. However, it denied any breach and denied that Gebrehiwot was entitled to any of the relief sought. In particular, it asserted that there is no basis in law for a claim for exemplary damages arising from an alleged breach of the Charter.

The Charter ruling

The judge heard argument on a number of preliminary issues before the trial began. These included an argument by the State that insofar as the claim for exemplary damages was based on the Charter it was wrong in law. There was also an issue as to the mode of trial, namely, whether the judge should hear and determine the proceeding or whether it should be left to a jury.

In respect of the Charter, the judge did not accept that the Charter could inform, or would otherwise be relevant to, the jury’s consideration of damages. She ruled that [12(c)] of the FASC be struck out.[16]
[16]Charter ruling [65].

In the Charter ruling, the judge addressed the question of what remedies could be granted for a breach of s 38(1) of the Charter by setting out s 39, which provides:

39 Legal proceedings
(1)If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—
(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and
(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

(3) A person is not entitled to be awarded any damages because of a breach of this Charter.
(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.

The judge noted that the State had submitted that while declaratory and injunctive relief can be awarded by reason of a breach of the Charter, s 39(3) makes it plain that no damages can be awarded for breach and this means that aggravated, exemplary, or punitive damages are not available for breach. Section 39(4) preserves a plaintiff’s right to seek those damages under an independent non-Charter cause of action, but a Charter breach cannot inform the amount awarded. Indeed, s 39(4) was relied upon as indicating that the Charter is to have no effect upon the right to damages at common law.

In support of its submission that the claim for exemplary damages was wrong in law, the State relied on the observations (albeit obiter) of Gummow J (with whom Hayne J agreed) in Momcilovic v The Queen:[17]

The effect of s 39(3) is that breach of the Charter does not of itself give rise to entitlement to an award of damages. But the effect of the balance of s 39 is that the complainant may seek such other remedy as the complainant may have on a ground of unlawfulness arising because of the Charter.[18]

[17](2011) 245 CLR 1; [2011] HCA 34 (‘Momcilovic’).

[18]Ibid 79 [128] (citations omitted) (Gummow J, Hayne J agreeing at 123 [280]). See also Djime v Le [2016] VSCA 202, [21] (Weinberg, Hansen and Kaye JJA).

The judge observed that Gebrehiwot was not submitting that damages were available for a breach of the Charter directly but rather that the Charter might be relevant when considering damages for a cause of action independently of the Charter, for example, the already existing claims in tort for battery and false imprisonment. The claim was that the police officers, as public authorities, had breached their obligation under s 38(1) of the Charter and that breach aggravated, and rendered egregious, their conduct so as to justify an award of exemplary damages. The claim for damages was based on the tortious conduct, independently of the Charter, but the breaches of the Charter revealed that the tortious conduct warranted condemnation by an award of exemplary damages.

The judge acknowledged that Gebrehiwot had also put his case on an alternative basis under the Charter, namely, that the obligation under s 32 of the Charter to interpret all statutory provisions, as much as possible, compatibly with human rights, consistent with their purpose, meant that the statutory power to use reasonable and proportionate force would have to be applied as informed by the human rights that were engaged in the circumstances. That is, the question was raised as to what directions would need to be given to the jury, in light of the interpretive obligation under the Charter, with respect to the statutory powers the State relied upon as relevant to the lawfulness of the police conduct.

In the Charter ruling, the judge did not refer to s 462A of the Crimes Act but observed:

It was submitted the Charter becomes involved because the lawful justification relies on the statutory power of the police to arrest the plaintiff and the statutory power to use reasonable and proportionate force to effect that arrest.
Reliance was placed on s 32(1), the interpretative provision of the Charter, so far as possible, to interpret all statutory provisions in a way that is compatible with the Charter:
(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

It was submitted that this is a mandatory interpretative obligation and it is not one the Court is entitled to set to one side as a discretionary guideline. The provision provided, in every case so far as possible, to do so consistent with the purpose of the statutory provisions, they have to be interpreted in a way that is consistent with the Charter — in this case, the statutory provisions in relation to power to arrest and use reasonable and proportionate force to effect an arrest.
… In the circumstances, the onus falls on the police members to establish there was a lawful basis for use of force and for the arrest — any statutory power of arrest and any statutory power to use force has to be interpreted in line with the Charter provisions…[19]

[19]Charter ruling [68]–[72] (citations omitted). See also [131].

The judge noted that the ‘parties agree that in the present proceeding, the plaintiff can seek declaratory relief, a matter … the trial judge, not the jury, [may grant] in relation to any alleged breach of the Charter’.[20] However, she rejected the proposition that the Charter breaches would be relevant to the jury. She said:
[20]Ibid [139].

Although it was not suggested the jury would be required to answer a question on breach of the Charter, it was submitted, as the unlawfulness for the purposes of s 38 and s 39 is the conduct of the police members in committing the intentional torts, a breach of Charter is relevant to the jury’s consideration of those issues.
These, however, are matters the jury would always have considered in terms of the intentional torts in this case, in the absence of any Charter provisions. The police members are already under an obligation not to use disproportionate force. The common law and Statute already supply unlawfulness which the jury will consider. Any conduct of the police members that may also constitute a breach of the Charter, will be a matter before the jury in any event. The Charter does not make unlawful what is already unlawful.
In those circumstances and in light of s 39 of the Charter — a provision that is ‘convoluted and extraordinarily difficult to follow’ — I do not accept that the jury can take into account any breach of the Charter when assessing damages …
Section 39 must be read as a whole, and whilst a person may seek a remedy of relief under s 39(1), s 39(3) provides a person is not entitled to be awarded any damages because of a breach of the Charter. Further, s 39(4) provides nothing in s 39 affects any right a person may have to damages apart from the operation of this section.
A plain reading of s 39(3) clearly precludes any award of damages because of the breach of the Charter.
Parliamentary intention as to the unavailability of damages for Charter breach is also clear, as set out in the Explanatory Memorandum which specifically stated the Parliament did not intend to create any right to compensation for a person who claims they have been unlawfully arrested or detained.
…
… it is somewhat of a ‘play on words’ [on behalf of counsel for Gebrehiwot] that whilst s 39(3) provides no entitlement to damages for a Charter breach, a right to damages may arise because of the application of the Charter, but not necessarily a breach of the Charter.
Given the plain meaning of s 39(3) and (4), the clear intent of Parliament and the courts’ conservative approach to the remedies available under the Charter, I do not accept the Charter is relevant in any way to the jury’s assessment of damages in this case.
In any event, the jury can take into account any conduct said to be a breach of the Charter when considering the intentional torts and what, if any, damages should be awarded in relation thereto. If they thought this was a racist motivated arrest, then that is something they could take into account, independent of the Charter.
Accordingly, paragraph 12(c) of the FASC is struck out.
Any consideration of the Charter relates to the declaratory relief sought.[21]

[21]Charter ruling [140]–[145], [148]–[152] (citations omitted).

In a later discussion with counsel for Gebrehiwot, in the context of discussing the directions to be given to the jury during the trial, the judge clarified what she had said in the Charter ruling. The following exchange occurred:

Counsel: …there’s still the question about the mechanism of the Charter breaches themselves, as in, whether the jury can take those into account when considering the unlawfulness.
Her Honour: I think I’ve ruled on that already. It mightn’t be as clear as I wanted it to be, but essentially: so, there was no issue that there was no ground relied on being a breach of the Charter, that the Charter was not relevant even in informing the jury as to damages, and then I think I went as far as to say then that it really had nothing to do with them in terms of unlawfulness because the common law and statute provided that anyway.
…

Her Honour: …[t]he Charter added nothing. You couldn’t make it twice as unlawful, it already was if there was a finding in [Gebrehiwot’s] favour about false imprisonment and battery. So, my current position is, the only relevance of the Charter is for me. The type of behaviour that could have constituted a breach of the Charter … is a matter in front of the jury which they can think about in terms of exemplary damages…

The judge’s conclusions about the irrelevance of the Charter issues to the jury’s determination is the subject of Ground 1 of the grounds of appeal.

In dealing with the mode of trial as a preliminary issue, the judge dismissed concerns expressed by Gebrehiwot about proceeding by way of jury. Given her previous finding that the Charter was only relevant to declaratory relief, and not to the assessment of damages, she saw any difficulties as unlikely. She observed that, even if problems did arise, these could easily be dealt with by appropriate directions.[22]
[22]Charter ruling [224].

The trial

The matter proceeded before a jury. The trial commenced on 9 August 2019 and the jury delivered its verdict on 19 August 2019.

In Gebrehiwot’s evidence in chief he said that when the police officers arrived in Maddern Square on 17 November 2014 they started asking general questions and asked to see identification from him and his companions. When he asked why he had to give his details the police officer said it was a ‘regular check-up’. He realised he did not have his wallet on him and tried to figure out where he might have dropped it. He tried to explain to the police officers that he did not have his identification with him and may have dropped his wallet. Upon further questioning, he gave his name and address. He thought he might have left his wallet on a nearby bench. He recalled attempting to reach for the bench, at which point an officer pushed him backwards and, in his words, ‘tackled me’ and ‘head locked me down’. He recounted hearing his right index finger ‘crack’ when he reached the ground and screaming in pain ‘my finger is broken, my finger is broken’. He said the police officers could not hear him at that time. He said that a second officer ‘put his knee on my head [and] he banged my head on the floor as well’. The police officers handcuffed him and sat him against a wall until paramedics arrived. He said he did not spit at the police officers and nor did he act physically aggressively towards them. He also denied ever being told that he was under arrest.

In cross-examination, Gebrehiwot rejected the allegation that he had been aggressive or rude towards the police officers. When it was put to him that he had previously had problems with alcohol and that he had been drinking prior to the incident, he stated that he was only tipsy, not drunk. While he agreed that he had a poor memory of the events, he insisted he had a good memory of the night and how his injury happened. He rejected the suggestion that he had approached SC Miller, but, upon being shown the footage, he agreed he had approached SC Miller first. He rejected the suggestion that SC Miller had ever told him to ‘stand back’. He rejected the allegation that he had spat at SC Miller. At first he could not remember one of his friends trying to hold him back from ‘having a go at Miller’ but he agreed that the footage of the incident showed that at one point he was being held by a friend and that he broke free and approached SC Miller again. He also agreed that the footage showed that an officer was kneeling close to him when he was on the ground but not kneeling on his head. He maintained that he was not told that if he did not stop he would be placed under arrest and he was never told he was under arrest for being drunk. He agreed that after the incident his friends walked away. He disagreed that what the footage showed was ‘completely contrary to what he said had happened’.

Gebrehiwot did not identify SC Miller as the police officer who had pushed him or tackled him to the ground, although he was aware that this is what his counsel had alleged.

Ms Vernieux, a clinical neuropsychologist, gave evidence about Gebrehiwot’s mild intellectual disability, observing that he had an IQ of 66 and that the condition was most likely congenital. Evidence was called from Gebrehiwot’s treating General Practitioner, Dr Hewa, psychiatrist Dr Paoletti and plastic surgeon Dr Nam. A report of orthopaedic surgeon Mr Kossmann was tendered without oral evidence. Also tendered was the Police Defensive Tactics Manual, which made reference to the obligations of Victoria Police under the Charter, as well as audio recordings of police radio communications and, significantly, as mentioned, the footage.

Senior counsel for the State, in her opening address to the jury, urged the jury to find that the force used by the police officers was lawful. She referred expressly to s 462A of the Crimes Act and said that ‘her Honour will explain it to you in more detail’. She read out the words of the section and gave an example to assist the jury in the context of the prevention of an indictable offence:

A police officer who uses lethal force on a person to prevent that person committing an indictable offence that involves causing really serious injury or death because the officer believes on reasonable grounds that it’s necessary to use that force for that purpose, the police officer may do so before the offence is committed.
So, what the police officer believes is reasonable to achieve the objective and it’s not to be disproportionate to achieve that objective.

She then sought to explain how s 462A would be applied in the context of the incident with Gebrehiwot in the following terms:

Prior to using force against Mr Gebrehiwot each officer must have had an honest and reasonable belief that there was a need to use force, that the force to be used was not disproportionate, and the force was necessary to prevent the offence or to effect a lawful arrest.

On the appeal, the State relies on these statements made by their senior counsel in opening in support of its submission that an adequate explanation was given to the jury of the requirements of s 462A. This is relevant to Ground 2 of the grounds of appeal.

The State tendered the statement made by Gebrehiwot to the police dated 3 June 2015 as well as the statements of SC Miller and DSC Van Der Vliet,[23] and contemporaneous notes prepared by the police officers. Reliance was placed on a range of hospital records, including reports of the medical treatment Gebrehiwot received on the night of the incident, a history of his cannabis and alcohol misuse, and information relating to subsequent injuries he sustained.
[23]See [19] above.

SC Miller gave evidence that he attended Maddern Square to identify suspects of the attempted armed robbery. He said that upon arriving, Gebrehiwot approached him and started swearing at the police officers. SC Miller said words similar to: ‘Oh, Taddis, don’t be like that.’ He said Gebrehiwot then came within one metre of him, acting aggressively. He told Gebrehiwot to ‘stand back’, and pushed him in the chest with light-to-moderate force to ‘keep … personal space’. He did not ask to see Gebrehiwot’s identification and he did not hear any other police officer ask for identification. He said that Gebrehiwot spat at him. He said to him, ‘Don’t spit’. He said that Gebrehiwot continued to be aggressive and walked up to him again and so he pushed him back a second time.

He recalled that one or two of Gebrehiwot’s friends were holding him back at one stage. He said that Gebrehiwot spat at him again. He said DSC Van Der Vliet told Gebrehiwot that if he spat again, he would be arrested for being drunk. He also said to Gebrehiwot that he would be arrested for being drunk but Gebrehiwot ignored the warning. Gebrehiwot began to walk towards him again, at which point he ‘made the decision to take him to the ground, arrest him’. He said he put his hand on the top of Gebrehiwot’s shoulder, around the neck area, and then he stepped to the side and took Gebrehiwot down to the ground ‘in a reasonably controlled manner’. Once he was on the ground, he was handcuffed. At no time did he kneel on Gebrehiwot, and he did not see any other officer kneel on him. Nor did he place Gebrehiwot in a headlock while he was on the ground, or see any other officer do so. He said that before he placed his hands on Gebrehiwot, he said ‘you’re under arrest for [being] drunk’. He said he tackled Gebrehiwot because he considered it the safest option at the time to effect the arrest rather than trying to arrest him while he was standing up, which may have escalated into a fight. He said that he considered that taking Gebrehiwot to the ground was proportionate as he assessed and rejected other options, including the use of capsicum spray, which can be unbearable. He considered using his baton but he regarded it as a bad option because it can break bones. He kept a hold of Gebrehiwot to stop him ‘from just plonking straight to the ground’.

In cross-examination, SC Miller accepted, by reference to s 462A of the Crimes Act, that he was not entitled to use disproportionate force. He agreed that he had had no difficulty before with Gebrehiwot in terms of violence or aggression although he had had dealings with him when he was drunk. He accepted there were other police present. He also accepted that Gebrehiwot was ‘a great deal smaller’ than him but said that he had previously been knocked out by someone 30 cm shorter. He accepted that Gebrehiwot was lighter than him. When asked if he had a ‘lawful basis for pushing someone just because they approach you’, he replied ‘if my safety is at risk, I do, yes’. He said he perceived Gebrehiwot to be a physical threat. He pushed him away with an open hand to remove himself from the situation. Gebrehiwot was unsteady on his feet. He pushed him again to create further distance after Gebrehiwot had moved closer to him again. SC Miller admitted he pushed Gebrehiwot for a third time ‘to create further distance … an increase in response’. After watching the footage in court, SC Miller said he believed Gebrehiwot made physical contact with him on, or after, the second push, ‘with his left hand coming up’, although he did not have a memory of it. Counsel for Gebrehiwot suggested that the allegation of physical contact was ‘just not true’. SC Miller said he had just seen it on the footage and that they should ‘maybe agree to disagree’. His assessment was that the safest and best use of force was to arrest Gebrehiwot without further incident.

He said that one of the reasons he did not just walk away was that he needed to identify the offender in respect of the attempted armed robbery. When he was asked if that was ‘just absolutely untrue’ because he would have known that the three other men with Gebrehiwot were not the Liquorland suspects he replied that although this was now confirmed, ‘at that point in time I would believe one of them was’ and he let those men walk away after the takedown ‘because [he was] dealing with that that’s arisen now’. When asked if handcuffing Gebrehiwot took precedence over investigating a serious offence he said, ‘I’m not going to throw someone to the ground and get back up and start speaking to someone else and just ignore the person I’ve just arrested’.

SC Miller said when making his assessment to effect the arrest he took into account that the concrete ground was ‘a safe place to arrest, it was a flat piece of ground’. He took into account the size difference between himself and Gebrehiwot and said this ‘was a major factor in me deciding to arrest like that, because I thought I was capable of doing it in one single motion to stop any further incident’. He agreed he had described it as a ‘neck sling’ and he said that to him neck and shoulders are the same. He admitted that he had not been trained to perform this manoeuvre. He said he considered human rights at all times.

SC Miller said he handcuffed Gebrehiwot when he was on the ground ‘because he was drunk’, and because he wanted to prevent any further escalation of the incident. He said Gebrehiwot had not been screaming in pain, and he was not initially aware that Gebrehiwot had injured his finger. He did not become aware that Gebrehiwot was injured until he was moved to the wall. He said he left Gebrehiwot’s handcuffs on for 30 minutes, despite his injury, because he had been aggressive. When it was put to him that he was ‘just making that up’, he denied it. He accepted that at no point in the cross-examination did he give as a reason for the takedown the fact that Gebrehiwot had spat at him. Counsel said, ‘And that’s because he never did, did he?’ to which he replied that he would not use spitting alone as a cause to throw a person or arrest them immediately. The following exchange then took place:

Q:And you didn’t mention the spitting, I suggest, because it wasn’t forefront in your mind when I asked you the questions?

A:       Because it wasn’t a major concern.
Q:       No, it wasn’t forefront in your mind because it did not happen?
A:       No, it definitely happened.
Q:What I suggest to you, Sergeant, that it’s something you’ve come up with after the incident, knowing that you have to justify the fact that Mr Gebrehiwot was badly injured after you unlawfully arrested him and slung him to the ground?

A: That’s an outrageous statement to make and I was spat at.

This exchange is relevant to Ground 3 of the grounds of appeal and the issue of whether it was necessary for counsel to put directly to SC Miller that he was ‘lying’.

SC Miller also rejected the proposition that he did not tell Gebrehiwot he was under arrest before slinging him to the ground.

DSC Van Der Vliet gave evidence that upon arriving at Maddern Square he began checking for open bottles of alcohol and emptied one bottle just behind one of the four males. He then heard SC Miller talking to Gebrehiwot, telling him to go home with his friends. He said Gebrehiwot appeared unsteady on his feet, was very loud and abusive towards the police officers, and appeared to be drunk. He said he heard, but did not see, Gebrehiwot spit, and he told him ‘Don’t spit towards police’. He then stood closer to SC Miller, and Gebrehiwot then spat at SC Miller a second time. He said that Gebrehiwot again approached SC Miller who grabbed Gebrehiwot by the shoulder area and said ‘right, you’re under arrest’, then it appeared that Gebrehiwot ‘had gone to make a sudden movement’ and SC Miller ‘controlled him down to the ground, and he’s been placed under arrest’.

It was put to DSC Van Der Vliet in cross-examination that this version was inconsistent with his earlier statements to the effect that Gebrehiwot had ended up on the ground after attempting to pull away from SC Miller and falling over. His evidence was that Gebrehiwot had ‘lost his footing’ and ‘fallen forward’, but SC Miller had used that motion, the ‘unplanned response by Mr Gebrehiwot’, to take him to the ground in a controlled manner — ‘so, what’s started as an uncontrolled event, and he’s moved him to the ground in that manner’. He disagreed that his version of the incident was completely inaccurate.

When asked about his use of the phrase ‘Africans popping their heads up’,[24] DSC Van Der Vliet explained that ‘African’ was merely descriptive, as the men coming into Maddern Square at that time were of African appearance. He said that the expression ‘popping their heads up’ ‘just meant that they were coming round the corner, seeing that the police were there and then they would go back out again’.
[24]See [13] above.

The third police officer, DSC Devenish, gave evidence that he attended Maddern Square to assist SC Miller and DSC Van Der Vliet check out a group of males. He recalled SC Miller walking over to the group and starting to speak to one male. He said DSC Van Der Vliet walked behind SC Miller to engage with the rest of the group of males and SC Turner assisted him. The male, to whom SC Miller was talking, appeared agitated and was speaking in an aggressive tone but DSC Devenish could not remember what was said. He said Gebrehiwot seemed drunk. Before watching the footage, DSC Devenish did not recall SC Miller pushing Gebrehiwot, but he did see SC Miller ‘[grab] hold of [Gebrehiwot’s] upper body and just put him to the ground’. SC Miller said something similar to ‘you’re under arrest’ as he grabbed hold of Gebrehiwot. DSC Devenish assisted in handcuffing Gebrehiwot. Consideration was given to removing the handcuffs before the ambulance arrived but a decision was taken against doing so because Gebrehiwot had already shown himself to be aggressive towards the police officers and removing the handcuffs would not make Gebrehiwot’s injury any better.

In cross-examination, DSC Devenish accepted that he did not record in his notes that Gebrehiwot had been physically threatening, resisting arrest, or spitting, but he denied the suggestion that none of those things happened. He said it was for SC Miller to detail the exact circumstances of the arrest in his own notes.

In the State’s closing address, senior counsel returned to s 462A, reminded the jury that s 462A ‘is about the use of proportionate force’ and said:

Each of the officers who gave evidence before you made it clear that the use of force is not to be disproportionate to the objective sought to be achieved. They each gave evidence that they believed the use of force exercised by them was necessary for the objective sought to be achieved.

Senior counsel then urged the jury not to use hindsight when judging whether the police officers had reasonable grounds for the use of force but to take into account many matters relating to the surrounding circumstances, including: the time of night; the context of the investigation into an attempted armed robbery; the presence of multiple unknown people; the continued and escalating aggressive behaviour of Gebrehiwot; and the assessment by SC Miller and DSC Van Der Vliet ‘that Mr Gebrehiwot was a threat to Miller’s safety’. On the appeal, the State also relied on those comments as contributing to the adequacy of the explanation of s 462A given to the jury in the context of Ground 2 of the grounds of appeal.

In Gebrehiwot’s closing address, his counsel said SC Miller had been ‘deliberately evasive about important matters’ and had ‘tellingly lied about some crucial matters in order to justify what he did that night’. She said the only aggressor that night was SC Miller and that his manoeuvre in taking Gebrehiwot to the ground ‘was violent and totally disproportionate, even if you accept the plaintiff was verbally abusive, even if you accept that the plaintiff spat in his direction’.

In her charge to the jury, the judge reminded the jury of the comments made by counsel for Gebrehiwot in her closing address, namely that SC Miller had ‘tellingly lied about crucial matters’. She went on to say that counsel should have directly put to SC Miller in cross-examination that he was lying:

Having put something like that to you, [counsel] should have directly put that to Sergeant Miller. She at various times has put to him that he was inventing or making things up, but she has not directly put to him that he was lying, or that there was collusion with the other police officers, or that there was a cover up. However, it is up to you entirely what you make of Sergeant Miller’s evidence.[25]

[25]Charge to the jury 827–8.

The judge reinforced this observation with an additional comment:

Whilst [counsel’s] cross-examination of the various members might have suggested that there was some collusion between them in how they recorded the events of that night at a later stage, it was not directly put to any of those members, that they had actually got together and colluded and come up with the similar version.[26]

[26]Ibid 833.

After discussions with counsel, the judge added later that the failure to put to SC Miller directly that he was lying meant that he had not had an opportunity to respond to that allegation:

I did make some comments to you about [counsel for Gebrehiwot] putting to you and not to Sergeant Miller, that he was lying or that there was some sort of collusion. Obviously, not putting that issue to him, he has not had the opportunity to respond to that. So, that is where it is at the moment, but I have been asked that you take that into account.[27]

[27]Ibid 857.

The comments extracted at [68], [69] and [70] are the subject of Ground 3 of the grounds of appeal.

The judge also noted for the jury that it was an admitted fact that SC Miller had made contact with Gebrehiwot’s body in ‘three incidents’ (referred to in the jury questions as ‘the push’,[28] ‘the taking … to the ground’ and ‘the handcuffing’), and after those incidents Gebrehiwot had remained handcuffed on the ground for 30 minutes until paramedics attended.[29] In these circumstances she decided that a lengthy direction about battery and assault was unnecessary.[30] Instead, the jury only had to be instructed in relation to whether the acts were lawfully justified.[31] This had to be proved on the balance of probabilities, which is lower than the criminal standard.[32] The jury simply had to ask whether it was ‘more probable than not’ that the police officers’ conduct was lawfully justified.[33]
[28]See [87] below.It appears as though the three pushes engaged in by SC Miller were rolled up as a single incident amounting to ‘the push’.This is apparent from the charge to the jury that, in respect of ‘the push’, Gebrehiwot had ‘repeatedly’ been making a beeline for SC Miller. See [74] below.
[29]Charge to the jury 819.
[30]Ibid 835.
[31]Ibid 836.
[32]Ibid 822.
[33]Ibid 822–3.

With respect to the issue of lawful justification, the judge said:

The issue is, was the defendant’s conduct, in Questions (1) to (3) [the push, the taking to the ground and the handcuffing, respectively], lawfully justified? ^[[34]]
In general terms, [senior counsel for the State] said to you that the plaintiff’s actions warranted the use of force. What Miller and the other officers did was not excessive at all or disproportionate to the objects to be achieved. Each had an honest and reasonable belief it was necessary to use the force they did in circumstances where the plaintiff’s conduct warranted being arrested and warranted the use of force.
The police have a proper basis to arrest the plaintiff as set out in the Crimes Act given he was drunk and in light of his aggressive and abusive behaviour.[35]

[34]The Questions for the jury are set out at [87] below.

[35]Charge to the jury 836.

The judge later returned to the issue of the need for the use of force when summarising counsels’ addresses to the jury. She began with summarising the submissions of the State in relation to the push:

So, just to go to Question (1), and these are what the barristers said specifically in relation to these points. [Senior counsel for the State] … suggested to you that the plaintiff was not caused any harm at all by the pushing, and that it was a use of proportionate force as the police are entitled to do in these circumstances.
And when looking at what Miller did in terms of the push, you look at the reasonableness of his conduct then; you don’t look at it now and look back and see what happened, whether the plaintiff was injured or how he was injured, you look at what was Miller to do at the time, and it is called in the agony of the moment what was he to do.
It was put to you by [senior counsel] that, in that agony of the moment, Sergeant Miller behaved in accordance with police protocols and acted appropriately and with lawful justification.
The lawful justification for that contact, so the pushing, was because the plaintiff was repeatedly making a beeline to Miller, he was drunk and swearing at him, Sergeant Miller needed to push the plaintiff away to keep a safe distance, as was appropriate and set out in the Defensive Tactics Manual. Miller could not just stand there with his hands up. In any event, it was a light-to-moderate push. Other options beyond pushing were disproportionate and Sergeant Miller chose not to use those in circumstances where other police there confirmed the plaintiff was aggressive and moving forward towards Miller and swearing.[36]

[36]Ibid 838–9 (emphasis added).

She then turned to a summary of Gebrehiwot’s position with respect to the push:

[Counsel] says, however, that early on it is Miller who is aggressive. He has an option to avoid force and conflict as the Defensive Tactics Manual sets out.
…
So, in general terms [counsel] says there is just no need to have pushed the plaintiff, albeit a light push, and that this was a disproportionate use of force and Miller and the other police should have just walked away.[37]

[37]Ibid 839.

The judge then summarised the submissions made by senior counsel for the State on the issue of lawful justification with respect to the takedown:

In terms of taking the plaintiff to the ground, which is Question 2, [senior counsel] said again, this was proportionate behaviour to the situation that Miller found himself in, where the plaintiff was verbally aggressive, he was drunk, and he was advancing on him; the plaintiff had ignored Miller’s directives to move back or stop; he had ignored Miller saying he would be arrested if he continued to advance; and then it was reasonable for Miller to take him to the ground when the plaintiff had failed to take heed of those warnings.
[Senior counsel] said to you that Miller’s assessment was that it was better to take the plaintiff to the ground rather than arrest him standing up because of the difficulties that police face when someone is standing up and their ability to then kick or use their hands to resist arrest.
Miller said that the plaintiff was taken by the shoulder … Obviously, it is a matter for you what you make of the — I will call it ‘the manoeuvre’ — the taking to the ground, but [senior counsel] said that you should accept it was necessary and not disproportionate in the circumstances.[38]

[38]Ibid 839–40.

Her Honour turned to the submissions made by counsel for Gebrehiwot:

[Counsel], however, says it is ridiculous to say that Miller had no other option reasonably open to him but to do a neck sling, which were his words, a move which she urged you to accept did involve the plaintiff’s neck, not just his shoulders. She said that description by Miller was an outright lie and, when looking at his behaviour in this instance, you should have consideration to his size relative to the plaintiff, who was smaller, the close proximity of other officers who were there which gave another option rather than taking the plaintiff to the ground, and the fact that they could have undertaken the arrest while the plaintiff was standing up.

Even if you accept that the plaintiff was abusive at the officers, and his behaviour was aggressive, [counsel] said the fatal flaw in the defendant’s case was [that] Miller’s manoeuvre was violent and totally disproportionate in the circumstances, taking you to the Defensive Tactics Manual …
She suggested to you that the defendant could not persuade you there were no other options that were available on the night other than the neck sling, a movement that was not part of Miller’s training, and that you should not accept this take down was performed in a controlled way with Van Der Vliet’s evidence of the takedown being different to this description.
[Counsel] also queried whether spitting ever happened and whether, in any circumstances, that could justify the actions of Miller.[39]

[39]Ibid 840–1.

The judge then addressed Question 3 relating to the handcuffing.[40] She again sought to summarise the submissions that had been made by counsel:

[Senior counsel for the State] referred you to the Manual and said to you it was up to the individual members whether to handcuff in the particular circumstances of a case. In this case, it was not disproportionate to keep the plaintiff handcuffed till the ambulance arrived because he continued to be verbally aggressive …
[Counsel for Gebrehiwot] said to you it was not reasonable in the circumstances to handcuff the plaintiff as he was not resisting and had never been resisting. He just lay on the ground, he was not resisting or aggressive at the time …[41]

[40]Ibid 841.

[41]Ibid 841–2.

Finally, the judge turned to the issue of false imprisonment. She directed the jury in these terms:

You have heard that it is admitted that the plaintiff was handcuffed for about half an hour until the paramedics came and he was released to them.
There is no requirement on the plaintiff to prove that that was deliberate, or against the plaintiff’s will, or the restraint was total — that is obvious from the case and admitted by the defendant.
So, the plaintiff having established he was imprisoned, even though he was outside with handcuffs on, he was restrained and that prevented him leaving Maddern Square, so it is then for the defendant to prove justification, that they were justified in doing what they did.[42]

[42]Ibid 842.

Her Honour explained to the jury the form of restriction that amounts to false imprisonment:

The basis upon which the law allows a civil action for false imprisonment is that, in modern society we are all entitled to freedom of movement and freedom from restraint unless there is a proper legal justification to do otherwise.
So, obviously, improper restraint or imprisonment may affect a person’s liberty, dignity or reputation. The law provides, where a person is improperly imprisoned, he is entitled to damages as compensation for the infringement upon his liberty, dignity or reputation and any mental suffering which follows.
However, in this case, the defendant claims the arrest which led to the restraint was undertaken appropriately and in accordance with the law.
… the onus rests on the defendant to prove these matters to you.
As the arrest was done without a formal warrant, and was done when the police came across the plaintiff whom they considered to be drunk, it is a condition of that arrest, for it to be lawful, that the following things occur.
As the defendant alleges, the plaintiff was arrested upon reasonable suspicion of being drunk in a public place. The defendant is obliged, having informed the plaintiff as to the true grounds upon which he is being arrested and is not entitled to keep the reasons for the arrest to themselves or give a false reason.
If the plaintiff was not properly informed as to the reason of his arrest, but is nevertheless seized, then the defendant is liable for false imprisonment. The requirement to be informed as to the crime which is alleged was committed does not exist if the circumstances are such that a person would ordinarily know the reason for which he is being arrested or detained. …
You have heard about the physical injury in this case … If you find the imprisonment was without lawful justification, an effect upon the plaintiff’s reputation is sufficient, and you are entitled to take into account the disgrace or humiliation of that event, particularly if observed by other people.
Just finishing off false imprisonment, [senior counsel for the State] said there is a lawful basis for the arrest and imprisonment. The arrest is lawful for the plaintiff being drunk in a public place under s 13 of the Summary Offences Act. The police have done what they are required to in the circumstances by warning the plaintiff prior to being arrested that he would be and, immediately before being arrested, that he was told he was under arrest.
[Senior counsel for the State] said that Miller had an honest and reasonable belief for arresting the plaintiff for being drunk …
Further, multiple times the plaintiff had been directed to back off, told he would be arrested, spat not once but twice, and whilst being verbally abusive, Miller in the circumstances effected an arrest and had a lawful basis to arrest the plaintiff.
In the circumstances, [counsel for Gebrehiwot] said to you, it was unbelievable that Miller told the plaintiff he was under arrest before taking him to the ground and that you should not accept that there had been an arrest in accordance with law, what the police are required to do.
If the police were so concerned about the plaintiff’s aggressive behaviour, [counsel] asked you, why would they release him as soon as the ambulance got there and why was the plaintiff not subsequently charged with resisting arrest and only given an infringement notice for being drunk? Again, the answer to Question 4 is yes or no.[43]

[43]Ibid 842–5 (emphasis added).

In the charge the judge did not give a direction to the jury about s 462A of the Crimes Act, with respect to its meaning, scope, or application in the circumstances. There is no mention of s 462A.

In the absence of the jury, the judge discussed with counsel whether any further directions were required. The judge agreed to give a further direction to the effect that it had not been put to SC Miller that he had lied and therefore SC Miller had not been given an opportunity to respond. During the discussion senior counsel for the State queried whether her Honour intended to give a direction about s 462A. The following exchange ensued:

Senior counsel: Your Honour has indicated you’re about to move on to damages. Is your Honour actually going to direct the jury as to what the law is about not using disproportionate force, or what not disproportionate force is? Because it’s been put by — in terms of, we said it was — I told them it was in my opening, s 462A of the Crimes Act, and then we’ve addressed them in relation to that and we proceeded on that basis.
[Counsel for Gebrehiwot] has put in, and your Honour’s referred to it in your Honour’s charge, about that there are other options. But, of course, the test is not whether someone else might not have done something differently, it’s just whether or not …

Her Honour:             Yeah. That’s what I said, what he thought was appropriate in the circumstances.
Senior counsel:         Yes.
Her Honour:          That’s what I’ve already said.
Senior counsel:         Has your Honour said that?
Her Honour:          Yeah, I have.
Senior counsel:          Then that’s all right.
Her Honour:          Okay.

The judge did not direct the jury that, in determining the claim based on the circumstances in which SC Miller took Gebrehiwot to the ground (Question 2), it needed to determine, amongst other things, whether SC Miller had done what he thought was appropriate in the circumstances. Her Honour’s discussion of what was appropriate in the circumstances was confined to the context of Question 1, the push, in respect of which the State’s position was summarised as being that SC Miller had acted ‘appropriately and with lawful justification’.[44] The word ‘appropriate’ is not the language employed in s 462A and it was used by the judge in addition to the expression ‘lawful justification’ rather than as an explanation of that expression. The judge used the word ‘appropriate’ again in the context of her discussion of Question 4, the claim of false imprisonment, but there it was used in the context of the arrest have being undertaken ‘appropriately’.[45]
[44]See [74] above.
[45]See [80] above.

On the resumption of the charge, the judge gave the directions she had agreed to deliver.[46]
[46]For the additional direction with respect to the allegation of lying see [70] above.

However, she did not go on to give a direction that the justification of the use of force depended upon the jury being satisfied as to the component elements of s 462A being satisfied. In particular, she did not describe or define those elements, relevantly, that the officer must have the requisite belief, that it must be based on reasonable grounds, and that it must be not disproportionate to the objective.

Ground 2 of the grounds of appeal is directed to the lack of a direction on s 462A.

The questions that were left to the jury, and its verdicts, were as follows:

1.Was the push of [Gebrehiwot] by Miller without lawful justification – No.
2.Was the taking of [Gebrehiwot] to the ground by Miller without lawful justification – No.
3.Was the restraint in handcuffing of [Gebrehiwot] by members of Victoria Police without lawful justification – No.
4.Was the arrest and imprisonment of [Gebrehiwot] until he was released from custody without lawful justification – No.

Question 5 was:

5.In what sum do you assess compensatory damages, including pain and suffering and aggravated damages?

It was only necessary for the jury to answer Question 5 if it had answered ‘yes’ to any one of Questions (1) to (4). As the jury had answered ‘no’ to each of Questions (1) to (4), it did not answer Question 5.

Consequent on these verdicts, on 21 August 2019, the judge made the following orders:

1.Judgment is entered for the defendant in accordance with the jury verdict;
2.The plaintiff is to pay the defendant’s costs on a standard basis to be taxed in default of agreement;
3.The proceedings be otherwise dismissed.

Gebrehiwot did not persist with his claim for a declaration that the police officers had breached their obligations under the Charter on the basis that as the jury had found against him, he would not contend that the judge should make any inconsistent declarations.

Grounds of appeal

Gebrehiwot relies on the following grounds of appeal:

1.The trial judge fell into error by ruling that the jury, when considering whether the conduct of the three police officers who the applicant alleged assaulted him and falsely imprisoned him was unlawful, could not take into account whether the acts and or decisions of those police officers were unlawful pursuant to s 38 of the Charter.
2.The trial judge misdirected, or failed to adequately direct, the jury in relation to the respondent’s defence of lawful justification, including by giving no direction in relation to the meaning of s 462A of the Crimes Act or the application of that provision in the circumstances of the case.
3.The trial judge wrongly and unfairly directed the jury that lead counsel for the applicant should have put to Senior Constable Miller directly that he was lying and that he had not had the opportunity to respond to the allegation that he was lying.
4.There was no evidence to support the jury verdict of ‘no’ to Question 1, or alternatively the evidence preponderated so heavily against the jury verdict of ‘no’ to Question 1 that the verdict of ‘no’ to Question 1 was unreasonable and should be set aside.
5.The evidence preponderated so heavily against the jury verdict of ‘no’ to Question 2 that the verdict of ‘no’ to Question 2 was unreasonable and should be set aside.

Grounds 2 and 5 are inter-related. While Ground 5 as formulated asserts that the verdict of ‘no’ to Question 2 was ‘unreasonable’, in the course of the hearing of the appeal, Ground 5 was clarified as a complaint about the consequence of the failure of the judge to give a direction to the jury on s 462A. In substance it was contended that the absence of a direction on s 462A was material in that it is not possible for this Court to conclude that if the jury had been directed in accordance with the law, it would necessarily have returned the same verdict on Question 2. Accordingly, we will address Grounds 2 and 5 together before turning to the Charter issues in Ground 1. We will then address Ground 3 to the effect that the judge wrongly directed the jury that counsel ought to have put to SC Miller directly that he was lying, before turning to Ground 4.

The central issue of lawful justification under s 462A — Grounds 2 and 5

Based on its verdict, it is clear that the jury accepted that the police had an appropriate basis upon which to arrest Gebrehiwot; that is, it accepted the evidence given by SC Miller, DSC Van Der Vliet and DSC Devenish as to the circumstances that preceded Gebrehiwot’s arrest. However, the critical issue in the trial was whether the degree of force used by the police — and, in particular, that used by SC Miller — was justified under s 462A of the Crimes Act; that is, whether SC Miller had a belief based on reasonable grounds that the degree of force he used was necessary in the circumstances to effect the arrest of Gebrehiwot for being drunk in a public place and, furthermore, whether the force used was not excessive or disproportionate to that objective. That issue was of particular importance in relation to the second battery comprising the taking of Gebrehiwot to the ground that was the subject of Question 2.

The meaning and scope of s 462A

Section 462A was inserted into the Crimes Act in 1981 by s 7(b) of the Crimes (Classification of Offences) Act 1981.[47] Its language reflects the test at common law. This is apparent from the decision of the Full Court in R v Turner (‘Turner’)[48] in its consideration of the old version of s 459 of the Crimes Act. Section 459 relevantly provided: ‘Any person may without warrant apprehend any person who is found committing any offence against [s 19 or s 136] of this Act or who is found committing any indictable offence in the night; and may forthwith take him or deliver him to a member of the police force’. Turner gave evidence that there had been a number of thefts from his car parked outside his home. On the night of the alleged offence he armed himself with a .22 loaded pistol and kept watch on his car. He heard a noise and saw an arm inserted through the flap on the driving side of his car. He called out: ‘What are you doing there?’ The man ran. Turner shouted: ‘Stop or I’ll shoot’. There was no response and he fired a shot intended to frighten the man. The shot fatally wounded the thief. Turner was acquitted of murder but was convicted of manslaughter.
[47]Section 462A was introduced to expand the defence of lawful justification of the use of force beyond particular offenders and specific offences. In his Second Reading Speech, the Attorney-General explained that s 462A was introduced because ‘the common law allows reasonable force to be used to prevent the commission of some, but not all, indictable offences and to arrest some, but not all, offenders; so what is proposed is wider than the common law. I believe the extension is justified.’: Victoria, Parliamentary Debates, Legislative Council, 28 October 1980, 1652 (Haddon Storey, Attorney-General). Only one change to the provision was discussed in Parliament with the effect that the original wording was amended to allow for reasonable force to be used in arrests of any offence, not just indictable offences: Victoria, Parliamentary Debates, Legislative Council, 19 March 1981, 6270 (Haddon Storey, Attorney-General).
[48][1962] VR 30 (O’Bryan, Dean and Hudson JJ).

On the application for leave to appeal against conviction, the question arose whether s 459 authorised the use of force and, if so, to what extent. The trial judge directed the jury that as a matter of law Turner had no justification for using a lethal weapon even by way of threat to effect the arrest of the deceased. The Full Court of the Supreme Court held that the direction to the jury was wrong. The Court held that it was open to the jury to hold that in the particular circumstances Turner ‘was justified in firing towards (not at) the person whom he was trying to arrest’.[49] It granted Turner leave to appeal against his conviction, allowed the appeal, quashed the conviction, and ordered that he be discharged.
[49]Ibid 39.

The Full Court based its conclusion on s 459.[50] It rejected the submission of the Solicitor-General that s 459 did not authorise the use of any force to effect an arrest or to apprehend an offender and was confined to circumstances where the arrested person submits and goes peaceably. It preferred to adopt an interpretation of the words of s 459 that was faithful to ‘the meaning which we think … they would naturally bear’.[51] In doing so, the Full Court made reference to the common law principle that justified the use of force if there was a reasonable belief that the extent of the force used was necessary to effect the purpose and the force used was not disproportionate to that purpose. In rejecting the submission that s 459 did not authorise the use of any force, it said:

This would be a very weak and in most cases ineffective power to bestow. The words ‘apprehend’ and ‘take him’ and ‘deliver him’ all, in our opinion, connote the right to use force if necessary to effectuate the power conferred.
If the section connotes the right to use force, the force which the section connotes is, in our opinion, such force as is reasonably necessary to apprehend and to take and deliver him as provided by the section. This is not only a reasonable interpretation of the section, but it is analogous to the powers of arrest for felony at common law. When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was would not consider to be disproportionate to the evil to be prevented (ie the commission of the felony or the escape of the felon). See R v McKay.[52]

[50] Section 459 was included in the original version of the Crimes Act. It formed one of seven provisions under div 30, each of which conferred a unique power to arrest persons for certain specified offences: see ss 457–463. These provisions were collectively repealed by the Crimes (Power of Arrest) Act 1972 s 2. In their place, two new consolidated arrest powers were created under ss 458(1) and 459 (both of which remain in force). Section 458(1) encompasses (and expands) the power previously conferred by s 459 by permitting ‘any person’ to apprehend and take before a justice another person who they ‘find committing any offence’, whether an indictable or summary offence.

[51]Turner [1962] VR 30, 39.

[52]Turner [1962] VR 30, 36 (emphasis added) (citation omitted). The Full Court preferred to base its decision on s 459 and not on the common law because success on the basis of the common law defence could only have led to a retrial as the jury had not been asked to consider whether Turner held the relevant belief or, if he had, whether it was based on reasonable grounds: at 35.

Applying the requirement will inevitably involve some consideration of whether the same outcome could have been achieved with less coercion.[84] This will involve a consideration of the range of alternatives considered by the person who used the force. However, it may also involve other options that were not considered but that were objectively reasonably available in the circumstances.

What direction ought to have been given on s 462A?

[84]PJB v Melbourne Health (2011) 39 VR 373, 452 [352]–[353] (Bell J); [2011] VSC 327.

In the circumstances of the trial, in order properly to instruct the jury on this aspect of the case, it was necessary for the judge to explain the subjective and objective requirements of s 462A and the respects in which they differ, as described above. It was also necessary for her Honour to apply those requirements to the circumstances of the case. The judge ought to have explained to the jury that for the State successfully to rely on s 462A in respect of the takedown it had to establish to the jury’s satisfaction that SC Miller entertained a subjective belief, at the time he used the ‘neck sling’, that the degree of force he used was necessary to effect Gebrehiwot’s arrest and that his belief was based upon reasonable grounds, in that the circumstances, as perceived by him, were sufficient to induce that belief in a reasonable person.

Furthermore, it was necessary for the judge to explain to the jury that it had to assesses, as an additional requirement, whether the degree of force used was, objectively, not disproportionate to the outcome to be achieved, namely the arrest. The jury had to ask itself the core question: would a reasonable person have considered that there were other alternatives available involving the use of less force that would still have achieved the arrest? If the answer was ‘yes’, and there was no proper explanation as to why a less coercive alternative was not taken, then the takedown was disproportionate to the outcome to be achieved.

In short, it was incumbent on the judge to explain that SC Miller was only permitted to use such force as: (1) he believed (2) on reasonable grounds (3) to be necessary to effect the arrest of Gebrehiwot and (4) which was not disproportionate to that objective. In considering the defence based on s 462A, the jury was required to consider and give weight to each of those four component parts of the statutory requirement. The first element focused on SC Miller’s subjective belief; the second required SC Miller to have had reasonable grounds for that belief; the third required the content of the belief to be that the force used was ‘necessary’ to effect Gebrehiwot’s lawful arrest; and the fourth element focused on the issue of whether the force used was out of proportion to the objective. The jury required some instruction on each of those four component parts of the statutory requirement. Such an instruction would, of course, involve the judge explaining to the jury that it must not use the wisdom of hindsight, that they must take into account the exigencies of the moment confronting SC Miller and the dynamic nature of the circumstances which were evolving at the time.

The jury received no such instruction in this case. In particular, the absence of a direction to the jury on the meaning, scope, and application of s 462A meant that the jury was not required to and did not confront the core question. The judge’s summary of the competing arguments presented by the parties, as set out above, did not contain such an instruction. Rather, that part of the judge’s charge was directed to identifying for the jury how each party put its case. In any event, the judge’s summary of counsel’s arguments, on that aspect of the case, did not contain a reference to the discrete aspects of the composite prescription taken as a whole. Nor did the summary contain a reference to the special feature required to justify the use of handcuffs.[85]
[85]See [111] above. This is relevant to the jury’s verdict on Question 3.

The absence of a direction by the judge on the central issue in the trial was not remedied by the submissions made by counsel for the State on the elements of s 462A. Despite the submissions of the State on the appeal, it is not for counsel for a defendant to give the jury instructions. It is fundamental in a jury trial that it is the judge who has the role of directing the jury in relation to the law which it must apply in reaching its verdict. As the judge instructed the jury at the commencement of her charge — and as juries are always instructed — her Honour was the judge of the law in the case, and the jury were the judges of the facts. It was the duty of the judge to instruct the jury as to the component elements of the causes of action that were the basis of Gebrehiwot’s claim. As described above, in the context of the trial, the key issue for the jury was whether SC Miller had reasonable grounds for his belief that the force he used was necessary to effect the arrest and whether the force used by the police was not disproportionate in all the circumstances. Accordingly, it was necessary for the judge to give the jury appropriate directions concerning the content of the requirements of s 462A of the Crimes Act, which she did not do.

It is significant that counsel for Gebrehiwot, at trial, did not raise any exception to the judge’s charge in this respect. This is regrettable. Indeed, when senior counsel for the State raised the matter with the judge,[86] that was the occasion on which counsel for Gebrehiwot might have been expected to seek an appropriate direction from the judge as to the effect of s 462A. It might be inferred that at that point, counsel refrained from making that exception for tactical forensic reasons. Nevertheless, in light of the centrality of s 462A and, in particular, the issue relating to the proportionality of the force used by SC Miller in effecting the arrest, we do not consider that the failure of counsel for Gebrehiwot to have taken such exception to be fatal to the success of Ground 2. The critical issue is whether the failure of the judge to give the jury any appropriate direction on s 462A caused a substantial wrong or miscarriage of justice.[87] The answer to that issue depends on an analysis of the strength of Gebrehiwot’s case at trial, considered in the light of the onus that fell on SC Miller to justify the force he used.
[86]See [82] above.
[87]Rules of Court r 64.37(2)(a).

It is apparent that the evidence of the police officers about the circumstances in which SC Miller brought Gebrehiwot to the ground was not entirely consistent. Neither SC Miller nor DSC Devenish gave evidence that the takedown was a reaction to a sudden movement by Gebrehiwot but DSC Van Der Vliet did.[88] Indeed, the evidence of DSC Van Der Vliet was itself internally inconsistent and contradictory.[89]
[88]See [60] above.
[89]See [61] above.

Nevertheless, giving full weight to that evidence, there is real cause to be surprised that the jury’s verdict was ‘no’ in relation to Question 2 (Was the taking of Gebrehiwot to the ground without lawful justification?). There was a strong basis for an affirmative answer to Question 2. Factors in support of an affirmative answer include:

· Gebrehiwot was intoxicated and unsteady on his feet.[90]
[90]See [60] above.

· SC Miller had to hold Gebrehiwot up to stop him ‘from just plonking straight to the ground’.[91]
[91]See [53] above.

· There was a very significant difference in both height and weight between Gebrehiwot and SC Miller. SC Miller is 10 cm taller than Gebrehiwot (Gebrehiwot is 173 cm tall compared to SC Miller who is 183 cm tall). On 17 November 2014, SC Miller weighed about 40 kgs more than Gebrehiwot (SC Miller weighing about 100 kg compared to Gebrehiwot who weighed about 60 kg).[92]
[92]See [12] above.

· SC Miller had had contact with Gebrehiwot before (and called him ‘Taddis’),[93] including when Gebrehiwot had been drunk, but had no prior trouble with him being violent or aggressive.[94]
[93]See [52] above.
[94] See [54] above.

· SC Miller had the assistance of at least two fellow police officers by his side.[95]
[95]See [54] above.

· Before SC Miller approached Gebrehiwot and threw him to the ground, Gebrehiwot had not touched SC Miller.[96]
[96]See [52] above.

· SC Miller did not allege that he considered Gebrehiwot a threat because he had spat at him;[97] the highest at which the ‘threat’ posed by Gebrehiwot could be put is that he was verbally abusive and walking towards (but not up to) SC Miller.[98]
[97]See [57] above.
[98]See [52] and [60] above.

· The manner in which SC Miller took Gebrehiwot to the ground was troubling — in a rapid manoeuvre he put his arm around Gebrehiwot’s neck or shoulder and slung him to the ground.[99]

· The surface of the ground was concrete.[100]

· SC Miller had not been trained to carry out the manoeuvre he used.[101]

[99]See [53] and [56] above.

[100]See [56] above.

[101]See [56] above.

A viewing of the footage raises some concern. Giving full weight to the exigencies of the moment, and the spontaneous and dynamic nature of the incident, nevertheless the manner in which SC Miller brought Gebrehiwot to the ground was very much open to question. While it may be difficult to conclude that the verdict of the jury on Question 2 was not open to it on the evidence, or was unreasonable or unjust, nevertheless, in our view, it cannot be concluded that the absence of a proper direction on s 462A was immaterial. Had the jury been properly instructed and invited to apply the subjective and objective elements of the statutory requirement under s 462A, the jury would have had substantial cause to reflect on whether SC Miller had reasonable grounds for his belief and whether the takedown was not disproportionate to the objective of effecting the arrest.

In the absence of a proper direction, the jury was left to undertake an uninformed and impressionistic assessment of whether the force used by SC Miller in the takedown was justified. While SC Miller gave evidence on the range of alternatives to the takedown that he considered, including arresting Gebrehiwot standing up, that evidence was not dealt with by the judge under the guiding principles informing s 462A and the jury was not instructed to assess that evidence within a principled framework. In our view, it is not possible for this Court to conclude that the jury, so directed in accordance with the law, would necessarily have reached the same verdict on Question 2. The failure of the judge to give an appropriate direction on s 462A has thus resulted in a substantial wrong or miscarriage of justice.

It follows that the jury verdict on Question 2 should be set aside and the matter remitted to the County Court for a retrial.

Moreover, the absence of a direction on s 462A infected the answers on all four questions before the jury. The question of lawful justification was the central issue raised by each of Questions 1 to 4. Given the need for a retrial, and given that the circumstances comprised a single and somewhat brief incident, it will be necessary for the retrial to start afresh with respect to the claims made in respect of each of the alleged torts. It would be wholly artificial to confine a retrial to the takedown alone, unconnected to the overall circumstances of the case.

Grounds 2 and 5 of the grounds of appeal should be upheld.

Was the Charter ruling made in error? — Ground 1

Ground 1 is expressed in terms of an error that the judge wrongly ruled that the jury could not take into account whether the acts or decisions of the police officers were unlawful pursuant to s 38 of the Charter. As explained above,[102] in [12(c)] of the FASC, Gebrehiwot relied on s 38 as a foundation for his claim for exemplary damages.
[102]See [23] above.

On the appeal, Gebrehiwot submits that s 39 only precludes a claim for damages based solely on the Charter but permits a breach of the Charter to be taken into account in a claim for damages against a public authority where the actions of the public authority are unlawful for reasons not based upon the Charter. The State submits that the clear words of s 39(3) and s 39(4)[103] make it plain that the Charter is irrelevant to a jury’s assessment of damages based on the torts of battery and false imprisonment.
[103]See [33] above.

The judge was correct to conclude that a breach of s 38 could not found a claim for damages. Unlike human rights instruments in other jurisdictions, which confer an entitlement to plenary forms of relief for breach,[104] or expressly acknowledge that damages may be awarded,[105] the prohibition on damages in the Charter is unequivocal. Damages, as traditionally understood, include compensatory as well as aggravated and exemplary or punitive damages. These are all categories of common law damages and it would be contrary to the plain language of the prohibition in s 39(3) to read it as permitting an award of damages in any of those categories.
[104]See, eg, Human Rights Act 1998 (UK) s 8(1) (the ‘HRA’).
[105]HRA s 8(2).

Nor does the Charter confer an entitlement to statutory monetary compensation, again as some human rights instruments do.[106] In our view, s 39(3) of the Charter makes it plain that there is no entitlement to an award of damages that arises by reason of a breach of the Charter. It follows that a breach of the Charter cannot be relied upon as a means of recovering damages either in respect of that breach or as a means of expanding the damages that might be awarded in respect of an independent cause of action in tort;[107] such an expansion would ultimately derive from the Charter breach and this is prohibited. The judge was correct in respect of this conclusion.
[106]See, eg, Human Rights Act 2004 (ACT) s 18(7) (in respect of unlawful arrest or detention).
[107]In the United Kingdom damages are available for a breach of human rights, but they are a remedy of last resort and not essential to the primary function of remedies under human rights instruments, namely, bringing infringing conduct to an end, ensuring future compliance with human rights standards or norms, and vindicating rights: see HRA, s 8(3); D v Commissioner of Police of the Metropolis [2019] AC 196, 221 [64]; [2018] UKSC 11 (Lord Kerr JSC, Baroness Hale PSC agreeing, and Lord Neuberger agreeing at 230 [100]). A somewhat similar approach is also reflected in New Zealand although damages are not a remedy of last resort: Taunoa v A-G (NZ) [2008] 1 NZLR 429, 523–4 [258]–[259] (Blanchard J); [2007] NZSC 70. Awards of damages made by the courts in the United Kingdom have been modest and they do not reflect awards in tort: R (Greenfield) v Secretary, Home Department [2005] UKHL 14, [19] (Lord Bingham). See also Fose v Minister of Safety and Security (1997) 3 SA 786; [1997] ZACC 6 (South African Constitutional Court). Where damages are available, they are a public law remedy and an award is discretionary: Taunoa v A-G (NZ) [2008] 1 NZLR 429; [2007] NZSC 70. The High Court in Lewis v Australian Capital Territory [2020] HCA 26 (‘Lewis’) has recently rejected the proposition that there is a new and separate head of non-compensatory common law damages, namely, ‘vindicatory damages’, that is, substantial damages simply to vindicate a right in the event of infringement (without the need to establish loss, where the rules of causation, remoteness of damage, and mitigation of loss would not apply, and where quantum would be at large). This was so, in particular, because other forms of existing relief, including declarations, can have a vindicatory purpose and effect: Lewis [2020] HCA 26, [104]–[121] (Gordon J, Gageler J agreeing at [22]), [153]–[159] (Edelman J, Kiefel CJ and Keane J agreeing at [2]).

However, Gebrehiwot also advanced an alternative submission relying on the Charter, namely, that any direction the judge gave to the jury about the meaning and application of s 462A in the circumstances had to be informed by an interpretation that was compatible with the human rights that were engaged.[108] The judge’s failure to give a direction on s 462A, as described above in the consideration of Grounds 2 and 5, also meant that she did not consider and apply the interpretive obligation under the Charter in construing s 462A.
[108]See [37]–[38] and [22] above.

As this Court emphasised in R v DA (‘DA’),[109] where there is a constructional choice, the interpretive obligation under the Charter requires that the construction be adopted that renders the statutory provision compatible with human rights, providing this is consistent with the purpose of the provision. This Court said:

Where more than one interpretation of a provision is available on a plain reading of the statute, then that which is compatible with rights protected under the Charter is to be preferred.[110]

[109][2016] VSCA 325.

[110]Ibid 443 [44] (Ashley, Redlich and McLeish JJA).

DA concerned the construction of s 49(1) of the Major Crime (Investigative Powers) Act 2004 that relevantly provided for a person to be guilty of contempt of the Chief Examiner if, without reasonable excuse, there was a failure to answer any question relevant to the subject-matter of the examination. The Court held that the proper construction of s 49(1) was that the examinee has the evidentiary burden of adducing or identifying evidence of a reasonable excuse with the onus then falling on the prosecution to prove beyond reasonable doubt that the matter relied upon did not constitute a reasonable excuse. Reading s 49(1) in this way was compatible with the right to be presumed innocent because an evidentiary burden (by contrast with the persuasive burden) does not limit that right.

DA was relied upon by this Court in Nguyen v Director of Public Prosecutions (‘Nguyen’),[111] in the context of interpreting s 40W(1) of the Confiscation Act 1997. Section 40W(1) confers a power on the court to make any orders it considers just.[112] The Court adopted a broad interpretation partly on the basis that this ‘better accommodates’ the right under the Charter to a fair hearing:

An interpretation of s 40W that extends to the making of an order setting aside a restraining order made ex parte ensures that s 40W is compatible with the relevant right engaged by the section, namely, the right to a fair hearing under s 24(1) of the Charter, which relevantly reads:
[A] party to a civil proceeding has the right to have the … proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

A right to a fair hearing quintessentially requires that both parties be heard. [This] interpretation … manifestly ‘better accommodates’ the right to a fair hearing than an interpretation that impliedly excludes the court’s power to entertain an application for a discharge of an ex parte order. This construction affords a meaning that respects the right to a fair hearing and is consistent with a plain reading of s 40W and reflective of common law principles of construction. It is an interpretation that does not strain the language used but, rather, as countenanced by this Court in Treasurer (Vic) v Tabcorp Holdings Ltd, is in accordance with the ordinary meaning of the words that Parliament has chosen.[113]

[111](2019) 59 VR 27; [2019] VSCA 20.

[112]Section 40W(1) provides: ‘The court may make any orders in relation to the property to which the unexplained wealth restraining order relates as it considers just’.

[113]Nguyen (2019) 59 VR 27, 63 [104]–[105] (Tate JA, Maxwell P agreeing at 30 [1], Niall JA agreeing at 74 [151]); [2019] VSCA 20 (footnotes omitted). See also Momcilovic (2011) 245 CLR 1; [2011] HCA 34; Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25.

The ‘better accommodates’ test endorsed by this Court in Nguyen is derived from the High Court’s decision in Hogan v Hinch.[114]The broadcaster, Derryn Hinch, was charged with contravening suppression orders protecting the identity of certain sex offenders on Extended Supervision Orders because he published the names of the offenders on his website and in comments he made at a public rally. A central issue was finding a human rights-compatible interpretation of the word ‘contravention’ given the right to freedom of expression under the Charter[115] which is subject to lawful restrictions ‘reasonably necessary’ to respect the rights and reputations of other persons, including offenders.[116] The High Court concluded that the phrase ‘publish or cause to be published … in contravention of an order’ should be construed as containing a knowledge element; that is, as requiring knowledge of the order in contravention of which the publication is made. Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said:

To the contrary of the informant’s submission, the phrase in s 42(3) ‘publish or cause to be published … in contravention of an order’ indicates a requirement of knowledge of that order in contravention of which the publication is made. ‘Contravention’ is used in the sense of disputation or denial rather than mere failure to comply with an unknown requirement. Such a construction of s 42(3) also better accommodates the provision in s 15(3) of the [Charter] respecting reasonably necessary restrictions upon the right to freedom of expression.[117]

[114](2011) 243 CLR 506; [2011] HCA 4.

[115]Charter s 15(2).

[116]Ibid s 15(3).

[117]Hogan v Hinch (2011) 243 CLR 506, 550–1 [78]; [2011] HCA 4 (emphasis added).

As discussed above,[118] the test under s 462A, as applied to the circumstances, would have required the jury to consider, as the fourth component of the direction, whether the force used by SC Miller in the takedown was not disproportionate to the objective he sought to achieve, namely, the arrest of Gebrehiwot for being drunk in a public place. This would have involved some consideration of whether there were less coercive alternatives to the takedown available in the circumstances.
[118]See [119] above.

It was conceded by the State that, for example, Gebrehiwot’s ‘dignity’ right was engaged, or potentially engaged, by the actions of SC Miller in placing the plaintiff under arrest. The dignity right is the right when deprived of liberty, to humane treatment and to be treated with humanity and respect for the inherent dignity of the human person.[119] A human-rights compatible interpretation of ‘not disproportionate’ in s 462A would place some emphasis on the question of whether SC Miller had reasonably available to him an alternative option to the takedown that would have better preserved Gebrehiwot’s dignity right. Such an interpretation ‘better accommodates’ the dignity right than an interpretation that takes no account of the human rights of a person subject to arrest; it discharges the obligation under s 32 of the Charter to adopt a human rights compatible interpretation of all statutory provisions. In answering the question of whether the takedown was not disproportionate, all of the factors identified in [124] above would remain relevant but added to them would be a consideration of whether any of the alternative options that were available would have interfered less with Gebrehiwot’s dignity right yet in the circumstances still enabled the arrest to be effected.
[119]Charter s 22(1). For a discussion of the dignity right more generally, see Castles v Secretary, Department of Justice (2010) 28 VR 141; [2010] VSC 310 (Emerton J).

There was evidence given by SC Miller as to the range of alternatives that were available to the takedown.[120] Had the judge given a direction on s 462A she could have naturally extended her direction to invite the jury to assess whether any of those options, or other options that were reasonably available in the circumstances, could have resulted in Gebrehiwot’s arrest while still protecting his dignity right.
[120]See [53] above.

We consider that the judge was incorrect to hold that s 32 of the Charter was irrelevant to the jury’s deliberations. In our view, s 32 was relevant to the jury’s deliberations on liability because it may have affected its consideration of whether s 462A applied in the circumstances. However, there is no ground of appeal that identifies an error by the judge in the application of s 32 of the Charter and the determination of an interpretation of s 462A that is human rights-compatible must wait for another day.

With respect to Ground 1 and the alleged error by the judge in holding that a breach of s 38 of the Charter was, in the circumstances, irrelevant to the jury’s deliberations, we reject it. We do so on the basis that the judge was correct to conclude that a breach of s 38 of the Charter could not be used as a basis on which to ground an entitlement to damages, including exemplary damages, or to expand an independently existing damages claim.

Should counsel have alleged directly that SC Miller was lying? — Ground 3

On the appeal, Gebrehiwot submits that the judge misdirected the jury in instructing it that his counsel ought to have put directly to SC Miller that he was ‘lying’.[121] He submits this unfairly undermined his attack on the credibility of SC Miller. He further submits that there is a significant risk that the misdirection influenced the outcome of the trial because it may have made the jury reluctant to reject parts of SC Miller’s evidence on the basis that it had not been put to him expressly that he was lying. Given that on numerous times counsel had put to SC Miller that what he was saying was ‘not true’,[122] ‘absolutely untrue’[123] and that the allegation of spitting was ‘something you’ve come up with after the incident’,[124] Gebrehiwot submits that it was reasonable and appropriate for the submission to be made to the jury that SC Miller had ‘lied’.
[121]See [68]–[70] above.
[122]See [54] above.
[123]See [55] above.
[124]See [57] above.

In response, the State emphasises that in the impugned passages in the charge the judge reminded the jury that Gebrehiwot’s counsel had put to SC Miller that he was inventing or making things up and concluded her principal remarks by saying: ‘However, it is up to you entirely what you make of Sergeant Miller’s evidence’.[125] It submits that what the judge said did not amount to a direction to the jury but was rather a comment. There was nothing unfair or wrong about it and nor could it be said that Gebrehiwot had discharged the burden of establishing that this caused a substantial wrong or miscarriage of justice.
[125]See [68] above.

In our view, the judge was not correct to conclude that counsel for Gebrehiwot had failed to comply with the rule in Browne v Dunn.[126] Although counsel did not, in precise terms, put to SC Miller in cross-examination that he was lying, the content of the cross-examination made it abundantly clear to the witness that his evidence was being challenged as not being credible in a number of respects.[127]
[126](1893) 6 R 67.
[127]Cf Thomas v Van Den Yssel (1976) 14 SASR 205, 207 (Bray CJ); [1976] 14 SASR 205.

It is a moot point whether the impugned passages in the judge’s charge were directions of law or comments. At the commencement of her charge, the judge stated to the jury that she would be identifying specifically when she was giving to the jury a comment as distinct from the direction of law. In either event, the direction or comment given by the judge to the jury was incorrect. However, we do not consider that it occasioned any miscarriage of justice. It would have been clear to the jury that counsel for Gebrehiwot had adequately challenged SC Miller’s credit. The impugned passages in the charge were brief, and the ‘sting’ contained in them was rather minor.

We reject Ground 3.

Was the verdict on Question 1 unreasonable? — Ground 4

Ground 4 asserts that there was no evidence to support the verdict that the push occurred with lawful justification, or the verdict was unreasonable because the evidence preponderated so heavily against it. Gebrehiwot submits that the defence of lawful justification under s 462A could have no application in the circumstances because the force used has to have as its purpose, relevantly, the effecting or assisting of a lawful arrest of a person committing or suspected of committing any offence. He claims that there was no such evidence as on SC Miller’s own evidence the first push occurred seconds after Gebrehiwot came near him and was done to create a safe distance between them.[128] SC Miller said that the push occurred before he decided to arrest Gebrehiwot.[129]
[128]See [11] and [54] above.
[129]See [53] and [54] above.

In response, the State submits that no objection was taken at trial to the closing address which identified what SC Miller described as the ‘threat’ that Gebrehiwot posed as the justification for pushing him as a proportionate response to the threat.[130] Gebrehiwot did not seek a directed verdict on Question 1 at trial on the basis that there was no evidence that could support a ‘no’ verdict. Rather, the issue at trial was whether the force used could be justified as not disproportionate.
[130]See [54] and [66] above.

In our view, the State is correct to submit that there was no issue at trial that the push was unconnected to the arrest and, for that reason, s 462A could not apply. It is true that s 462A invites a comparison between the force used and the objective to be achieved and that here the State relied only on the second limb of s 462A,[131] namely, the objective of effecting or assisting in effecting a lawful arrest. However, had Gebrehiwot submitted at trial that there was no evidence linking the push to the arrest, the State may have argued that, with respect to the push, SC Miller was seeking to prevent an assault upon him in the due execution of his duty and thereby preventing the commission of an indictable offence under s 31(1)(b)(i) of the Crimes Act. In our view, there was some evidence that SC Miller perceived Gebrehiwot’s behaviour to be threatening, and potentially to be escalating in its aggression, and this would have supported s 462A as a potential defence.
[131]As explained by Kyrou J in Slaveski [2010] VSC 441, [121]; [2010] VSC 441. See [107] above.

In the circumstances, we reject Ground 4. However, given the conclusions on Grounds 1 and 5, as mentioned above,[132] the retrial should extend to the question of whether the push was lawfully justified in addition to the other questions.
[132]See [128] above.

Conclusion

The issue of the lawful justification of the conduct of SC Miller and the other police officers, in respect of the degree of force that was applied to Gebrehiwot in the course of the incident, was very much dependent on the reasonableness of SC Miller’s belief and the issue of whether the force used was not disproportionate to the objective of effecting Gebrehiwot’s arrest. In light of the conclusions expressed above, the jury’s verdicts on each of the questions asked should be set aside, and the matter remitted to the County Court for a retrial. We consider that a fresh approach to the proceeding would be useful in the circumstances and, for that purpose, the matter ought be remitted to a different judge.

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*Introduction and summary*......................................................................................	2
*The incident in a public square*...............................................................................	3
*Proceedings in tort*....................................................................................................	7
*The Charter ruling*.....................................................................................................	11
*The trial*......................................................................................................................	16
*Grounds of appeal*.....................................................................................................	32
*The central issue of lawful justification under s 462A— Grounds 2 and 5*.....	34
The meaning and scope of s 462A................................................................................	34
What direction ought to have been given on s 462A?.................................................	44
*Was the Charter ruling made in error? — Ground 1*............................................	50
*Should counsel have alleged directly that SC Miller was lying? — Ground 3*	55
*Was the verdict on Question 1 unreasonable? — Ground 4*..............................	57
*Conclusion*.................................................................................................................	58

[2020] VSCA 315

8 December 2020