Gibb-Smith v State of New South Wales

[2018] NSWDC 204

District Court

New South Wales

Medium Neutral Citation:	Gibb-Smith v State of New South Wales [2018] NSWDC 204
Hearing dates:	4 – 7, 10 April 2017
Date of orders:	03 August 2018
Decision date:	03 August 2018
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	(1) I give verdict and judgment for the plaintiff against the defendant for $124,159.  (2) Subject to any application made to me at the time of the delivery of these reasons, I order the defendant to pay the plaintiff’s costs.
Catchwords:	TORTS – POLICE TORTS CLAIMS – Assault and battery, false imprisonment, malicious prosecution – Compensatory and Exemplary damages – Arrest for breach of the peace – What constitutes breach of the peace
Legislation Cited:	Children (Community Service Orders) Act 1987 Children (Criminal Proceedings) Act 1987 Civil Liability Act 2002 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crown Proceedings Act 1988 Law Enforcement (Powers and Responsibilities) Act 2002 Law Reform (Vicarious Liability) Act 1983 Legal Profession Act 2004 Legal Profession Uniform Law Application Act 2014 Summary Offences Act 1988 Young Offenders Act 1997
Cases Cited:	A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 Amanda’s On The Edge Pty Ltd v Dries [2011] NSWCA 358 Battiato v Lagana [1992] 2 Qd R 234 Briginshaw v Briginshaw (1938) 60 CLR 336 Cameron v James [1945] VLR 113 Clavel v Savage [2013] NSWSC 775 Commonwealth of Australia v McLean (unreported, NSWCA, 31 December 1996) DPP v AM [2006] NSWSC 348; 161 A Crim R 219 DPP v CAD & Ors [2003] NSWSC 196 DPP v Carr [2002] NSWSC 194; 127 A Crim R 151 DPP (NSW) v Mathews-Hunter [2014] NSWSC 843 Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311 Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25 Johnson v Phillips [1975] 3 All ER 682 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kuru v State of NSW [2008] HCA 26 Lamb v Cotogno (1987) 164 CLR 1 Manly Council v Byrnes [2004] NSWCA 123 New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 Percy v DPP [1995] 3 All ER 124 Poidevin v Semaan [2013] NSWCA 334; (2013) 85 NSWLR 758 R v Howell [1982] QB 416; [1981] 3 All ER 383 R v Sanbach, ex parte Williams [1935] 2 KB 192 Rook v NSW (No 3) [2015] NSWDC 154; (2015) 21 DCLR (NSW) 204 State of NSW v Abed [2014] NSWCA 419; (2014) 246 A Crim R 549 State of NSW v Kuru [2007] NSWCA 141; (2007) Aust Torts Reports 91-893 State of NSW v Landini [2010] NSWCA 157 State of NSW v Tyszyk [2008] NSWCA 107 State of NSW v Zreika [2012] NSWCA 37 Zaravinos v State of New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58; (2004) 151 A Crim R 24
Texts Cited:	Bullen & Leake & Jacob’s, Precedents of Pleadings, 18th edition, Vol 1 Sappideen, Carolyn & Prue Vines, Fleming’s Law of Torts, 10th edition
Category:	Principal judgment
Parties:	Riley Gibb-Smith (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Mr A Canceri (Plaintiff) Ms B Nolan (Defendant)   Solicitors: Rebecca Dunlop Solicitor (Plaintiff) Henry Davis York (Defendant)
File Number(s):	2016/40136
Publication restriction:	Nil

Judgment

Curia advisari vult

1. The plaintiff brings an action for damages for the torts of

1. assault and battery,

2. false imprisonment, and

3. malicious prosecution

alleged to have been committed by members of NSW Police on the evening of Wednesday 14 April 2014 and in the early hours of Thursday 15 April 2014 at Glenbrook and at the Springwood Police Station and in between those two places. The statement of claim nominates as individual tortfeasors Constable Russell Budin, Constable Franjo Maracic and Constable Christopher Doyle. Each of those gentlemen has since been promoted to Senior Constable, but I shall refer to members (and a former member) of the NSW Police by the rank that each held at the relevant time. These police officers are deemed to be persons in the service of the Crown pursuant to the Law Reform (Vicarious Liability) Act 1983, s6. Pursuant to s8 of the same Act, the Crown is vicariously liable for the acts or omissions of these police officers in the service of the Crown. Pursuant to the Crown Proceedings Act 1988 s5, the plaintiff brings these proceedings against the defendant.

2. Assault and battery are separate torts: see Bullen & Leake & Jacob’s, Precedents of Pleadings, 18th edition, Vol 1, 6-01 at p76. They often are conjoined, as battery is often preceded by assault, but battery can occur without an assault, for example, where a person is struck from behind by an assailant of whose presence he is unaware. The statement of claim does not differentiate between the two torts and pleads “assault and battery” as if it were the one tort.

3. It is alleged that the plaintiff sustained some physical injuries, in particular, a chipped front tooth which required dental treatment and capping. However, the plaintiff makes no claim for personal injury damages, merely “general damages” (T1.24). There could be one or two reasons for the plaintiff’s so limiting his claim:

1. Civil Liability Act 2002 (‘CLA’) s21 provides that in an action for the award of personal injury damages where the act or omission which caused the injury was negligence, a court cannot award exemplary or punitive damages, or aggravated compensatory damages; and

2. where the amount of personal injury damages does not exceed $100,000, the Legal Profession Act 2004 s338 fixes the maximum costs recoverable from the unsuccessful party. The same provisions can now be found in Legal Profession Uniform Law Application Act 2014 section 61 and Schedule 1.

The plaintiff’s background

4. The plaintiff was born in August 1996. At the time of the events now in question he was 17 years and 8 months old. During the hearing he was 20 years old but he has since reached 21 years. He is a single man with no dependants. Between 2008 and 2010 he attended Blaxland High School. In 2011 he went to Canada and studied at Forest Heights Community College in Nova Scotia. He returned to Australia in 2013. He then enrolled in a course which was the equivalent of the HSC at the Blue Mountains TAFE College at Wentworth Falls. He was studying this course at the time of the relevant events. He was living with this aunt and grandmother at Faulconbridge. When giving evidence he described his grandmother as being ‘91’ which means that at the relevant time she was about 88 years old. This is relevant to an event at Springwood Police Station.

5. The plaintiff was, and is, an avid skateboarder. After completing his studies he found work in skateboard retail, including managerial work in an online business. His interest in skateboarding is also relevant to the events currently in question.

6. The plaintiff thought that in April 2014 he was 5’6” tall and weighed 52 kgs. He was then slightly built. He described himself as “petite”, albeit that grammatically “petit” was appropriate. A photograph of the plaintiff taken that night is numbered 4 in exhibit E, the four photographs probably taken at Springwood Police Station. The plaintiff then looked younger than his chronological age. I shall discuss this matter later when it is raised during the course of the events in question.

7. In January 2014, the plaintiff was riding his skateboard in George Street, near Central Station “weaving in between groups of people”. He was told by a police officer to “get off your skateboard”. The plaintiff admitted that he may have said to that officer, “You’re fucking joking”. He was asked by an officer to provide his details. He thought he did say to an officer, “This is fucking ridiculous”. The plaintiff admitted waving his arms around and accusing the police of being heavy handed. All of this arose in cross-examination, designed to elicit from the plaintiff his use of offensive language, at least in his dealing with police officers. However, for learned counsel for the defendant to have such information available to her, the plaintiff must have provided to the police officer(s), in January 2014, his details given that this incident could be recorded in the computerised operational policing system (COPS) as a matter “for intelligence”. It is important to note that, when asked by an officer to provide his details, the plaintiff did so.

8. This case does involve the use of language which I shall describe, using the terminology of the Summary Offences Act 1988 section 4A(1), as “offensive language”. Terminology used during the hearing included “bad language”, “foul language”, “swearing”, “obscenities”, “profanities”, “the vernacular” and “vulgar language”.

The plaintiff attends a party

9. On 16 April 2014 a party was held to celebrate the 18th birthday of Zach Stewart. The party was held at 4 Lucasville Road, Glenbrook. In his evidence in chief, the plaintiff misidentified the street but it is common ground that that was the venue of the party. On that day the plaintiff had attended TAFE and then went home for afternoon tea. He then “relaxed and hung out with grandma”. About 9pm he left home and went to Faulconbridge Railway Station where he caught a train to Blaxland. He thought that trip took him “roughly 15 minutes”. He then skateboarded to the party. That part of his journey took him “roughly half an hour”. Those times indicate a “rough” arrival time of 9.45pm. At T10.42 the plaintiff said he arrived about “9.30 or so, 9.40”. The plaintiff went into the backyard of the house and “socialised with some friends” whom he had not seen for a while. These were old school friends whom he had not seen since he had left Blaxland. The plaintiff said that in the time he was at 4 Lucasville Road, he consumed “about a beer and a half”. No evidence was adduced as to the size (long necks, cans, 330ml bottles, stubbies, throw-downs, schooners or middies) or strength (full, medium or light) of these drinks. Whether the plaintiff was intoxicated and, if so, the extent of intoxication, are matters in issue.

A noise complaint

10. At 9.19pm the police received a complaint about what was happening at 4 Lucasville Road. Exhibit 5 provides this record of the complaint:

“Informant states there is a loud party occurring at the address. Informant can hear smashing glass and a lot of yelling and believes party may be getting out of control. Party has been in progress for about 3 hours.”

Police Radio (VKG) broadcast this complaint at 21.19.50 (exhibit 5) or 21.20.42 (exhibit 11). I shall hereafter use the 24 hour system when recording times. Exhibit 5 are official police records (CAD). Exhibit 11 is a transcript of VKG broadcast (Channel J) made by a solicitor acting for the defendant. Where there is an inconsistency I shall use exhibit 11 which is easier to follow.

11. The Blue Mountains LAC extended, at this time, I believe, from Glenbrook to Mt Victoria. The major police stations in the LAC were Katoomba and Springwood. On the evening now in question, Springwood Police Station was staffed thus:

Shift Supervisor:	Leading Senior Constable Stephen John Adams
Station Officer:	Constable Kristin McGilchrist
Car Crew:	Constable Easaw Mammen (driver)
Constable Simone Fulton (observer)

LSC Adams, as shift supervisor, would have been an Acting Sergeant and is often referred to both orally and in writing as “Sergeant”. LSC Adams had a vehicle BL 14 (“Blue Mountains 14”). The car crew were in vehicle BL 16 (“Blue Mountains 16”).

12. At 21.21.04, BL 16 were informed of this job and acknowledged that assignment. VKG then broadcast the incident to “all resources”. That was acknowledged by NWM 246 (vide infra). At 21.28.01, BL 16 arrived at 4 Lucasville Road. At 21.32.33 LSC Adams spoke to VKG:

“Yes, radio, I’ve just had a phone call from BL 16. I think they’re off at Lucasville… Apparently they’ve got an out of control party down there, radio. I think the Highway Patrol’s heading down there so if you can just let him know they shouldn’t be too long. I’m stuck here at the Station. I can’t go anywhere.”

“Highway Patrol” is a reference to NWM 246 (“North West Metro 246”), a Highway Patrol car manned by SC Bulpett and Constable Pavy. VKG then asked NWM 246 for its estimated time of arrival. The reply was this:

“… we’re just leaving Springwood Station. Can you find out if they want us to expedite or do you want us to make our way down. If not probably about 10 minutes.”

The police have a code for speeds at which vehicles are to travel. Officially there are only two levels:

Code Blue:    normal road speed;

Code Red:   with lights flashing and sirens sounding.

Unofficially, there is also a “code purple”, a “bit of both blue and red” which indicates to proceed without stopping or diverting (T218). VKG enquired of BL 16 what speed NWM 246 should use and advised “blue” which was then broadcast to NWM 246.

13. At 21.39.12 Cons Fulton of BL 16 advised VKG “We’re all good here. Just talking to the home owner.” Cons Fulton’s statement (ex 9) contains this:

“Cons Mammen and I were approached by a young male who introduced himself as the host of the party. Cons Mammen and I had a conversation with the male in regards to underage drinking and closing the party down.”

The statement might telescope two events as the party was not closed down then. NWM 246 arrived at 4 Lucasville Road at 21.55.41. Apparently BL 16 was parked in Lucasville Road and NWM 246 parked behind it. Cons Fulton’s statement then says this:

“I got out of BL 16 and approached SC Bulpett and Cons Pavy and I had a short conversation with them… I observed a number of people coming and going from the address and it appeared that a large number of partygoers were heavily intoxicated. I heard SC Bulpett have a conversation with the same young male that identified himself as the host of the party. I heard SC Bulpett tell him to shut the party down.”

Const Fulton advised VKG of that decision at 21.59.15. Accordingly, it can be seen that although BL 16 arrived at 4 Lucasville Road at 9.28 pm, the decision to close the party down was not made until a half hour later, just before 10.00pm. It also follows that Cons Fulton and Cons Mammen were probably “out the front” of the party for about half an hour before SC Bulpett directed that the party be closed down.

14. At 22.00.01 LSC Adams in BL 14 advised VKG that he had completed his job at the Police Station and was going to 4 Lucasville Road. He arrived there at 22.12.46 and, as senior officer, took charge of this police task. In the meantime, NWM 246 advised VKG at 22.00.24 that:

“”It’s not quietening down at all, so we’re going to try and get everybody out.”

At 22.03.47 Cons Fulton asked VKG if LSC Adams “could come a bit quicker… We’ve just got a lot of drunken, argumentative people that are refusing to leave.” This prompted LSC Adams to go to “code purple”. At 22.07.12 NWM 246 advised VKG that:

“Radio, everyone’s leaving the property now. I don’t think we’re going to have any issues. It’s just trying to explain to drunken people what they’ve got to do. But everything’s fine.”

At 22.11.32 NWM 246 advised VKG:

“We’ve cleared this house pretty much of everybody. The only issue that we’re gonna have: most of them are heading towards the park at the end of Lucasville Road and once they get there we’ve got no control over what they’re gonna do.”

VKG then said:

“”That’s the tennis park and that where the Glenbrook cinema and everything like that is?”

To that NWM 246 replied:

“”Yeah that’s correct. We’ve got probably 40 odd people walking down that way.”

VKG then broadcast to those concerned at 22.11.57 that those leaving the party were heading to Glenbrook Park.

How many people left the party?

15. There are various estimates of how many people attended the party and/or left it. The most contemporary estimate is that provided by NWM 246 (either SC Bulpett or Cons Pavy) of “40 odd”. Cons Mammen, in his statement of 5 July 2014 (ex 10), said:

“I noticed there were 40-50 intoxicated persons between the ages of 16-19 in the residence.”

A little later at [5] Cons Mammen said:

“5. When the party was shut down a large amount of persons between 16-19 years of age with the majority of these persons being under the age of 18 started walking towards the direction of Glenbrook Park. Most of these youths were intoxicated. Glenbrook Park consists of swings, public toilets, BBQs and tourist information facilities. This area is known for underage drinking and anti social behaviour.”

The host of the party, Mr Stewart, whose birthday it was, was assessed by Cons Mammen to be “heavily intoxicated”. However, it appears to me to be unlikely that he would leave his own residence when the police shut the party down. He is likely to have remained “at home” with, perhaps, a small number of close relatives or friends. I can accept that not all of those who attended the party left for Glenbrook Park when the party was ended.

16. The plaintiff said that there were “50 to 60 people at the party” (T10.44). Various estimates were given by Cons Doyle (for whose role vide infra). In his notebook, written up on 17 April 2014 and signed at 2.30 am, he recorded “a large group of 36-40 people” in Glenbrook Park when he and his offsiders arrived there at 22.16.21 (exhibit 5). Cons Doyle also prepared “Facts Sheets” for the prosecution of two other young men who attended the party, Mr Zachary Baldock and Mr Kane Pembroke. Each of those Facts Sheets was prepared on 21 April 2014. Each refers to a “group of about 40 plus teenagers, ranging between 15 and 19 years of age.” In his statement made on 26 May 2015 he said:

“On arrival, I saw approximately 50-60 children and young persons aged between 13-18 years of age congregated in the Glenbrook Park.”

One ought note the hyperbole: on each recitation, the number increases and, when age is introduced, each time the age range decreases.

17. LSC Adams said, “there would have been between 60 to 80, easy” (T96.32) but, for reasons I shall later give, his evidence is unreliable, the subject of reconstruction. He made no relevant contemporaneous or near contemporaneous record. I am unable to accept his assessment. It smacks of hyperbole. There are no estimates provided by others closely involved in the relevant events, Cons Fulton, Cons Budin and Cons Maracic. The tendency to hyperbole was continued by learned Counsel for the defendant who said in her written submissions (MFI 15) [7d]:

“Due to the large number of people, said variously, by attending police officers to be 50 – 100 in number…”

The appropriate finding is, in my view, that about 50 people attended the party and that about 40 people subsequently made their way into Glenbrook Park.

The plaintiff leaves the party

18. At [9] above, I recited the plaintiff’s evidence as to when he arrived at the party. Significantly, in my view, he did not give evidence of seeing a police vehicle (BL 16) out the front of 4 Lucasville Road. I infer, therefore, that the plaintiff reached the party before BL 16 first turned up at 9.28pm. He would have been at the party for at least half an hour prior to the police’s first attempt to shut the party down at, or very shortly before, 10.00pm. That is consistent with the plaintiff’s evidence. When asked how long he had been at the party before the police arrived he said, “around, I think, 40 minutes. It wasn’t long” (T12.02). In cross-examination he said, “Around 40 minutes, 20, 40 minutes. I can’t really remember” (T40.25). The plaintiff was not told directly by the police to leave. According to his evidence there was a consensus amongst the partygoers that it was time to leave as “the police had come” (T12.06). He walked from the backyard, around the side of the house, to its front where he saw “many” police officers. He was in company with his friend Kane Pembroke, his girlfriend Alexis (Lexie) Baldock and her brother, Zachary Baldock. At some stage arrangements were made for Kane Pembroke’s sister to drive to Glenbrook to pick up this group of four. Kane Pembroke lived at Warrimoo and Zachary Baldock lived at Blaxland. The Blue Mountains villages west of Glenbrook are, as one travels west, Blaxland, Warrimoo, Valley Heights, Springwood and Faulconbridge. There was no challenge to the existence of this arrangement.

18. Cons Fulton, after stating that she heard SC Bulpett tell Mr Stewart to shut the party down, went on to say in her statement:

“6. Amongst the group of intoxicated people I observed a male holding a skateboard with another male. I would describe this male as Caucasian, rosy complexion, about 160-170cm tall, medium build, about 16 – 18 years of age, has short sandy blonde hair, about 70 – 80kg, wearing a grey hoodie jumper, black jeans, black shoes, smelt strongly of intoxicating liquor, had slurred speech and glazed eyes. The male was belligerent and argumentative as he didn’t listen to anything that was being said by any police officers. I heard him swear profanities and ignore police directions.

7. I would describe the other male with the skateboard as Caucasian, rosy complexion, about 160 – 170cm tall, about 16 – 18 years of age, has long brown wavy shoulder length hair, no facial hair, slim build, about 65 – 75kg, wearing a black t-shirt, black jacket, grey pants and socks, smelt strongly of intoxicating liquor and was carrying a skateboard with an octopus painted on it. The male was belligerent and argumentative as he didn’t listen to anything that was being said by any police officers. I heard him swear profanities and ignore police directions.”

She then stated the directions that were given to her and Cons Mammen by LSC Adams about patrolling the area after the closing down of the party and her movement from that time on. The descriptions I have quoted were descriptions of two people she observed out the front of 4 Lucasville Road. There is no doubt in my mind that the young man described in [6] of her statement is Zachary Baldock and the young man with the skateboard described in [7] of her statement is the plaintiff. She saw these two later, after their arrest as they were conveyed by BL 16 to Springwood Police Station, and she also saw them at the Station. Her notebook entry (part of ex 9) appears to have been made at the Station. However, that is not inconsistent with Cons Fulton’s having encountered both the plaintiff and Mr Baldock earlier, shortly after 10pm at the front of 4 Lucasville Road. It was never suggested to Cons Fulton by learned Counsel for the plaintiff that she did not see the plaintiff shortly after 10pm at 4 Lucasville Road. Cons Fulton appeared to me to have a good recollection of this event (in particular, about what happened to the plaintiff’s skateboard) and I have no reason whatever to doubt her evidence. Accordingly, I accept that shortly after 10pm on 16 August 2014 the plaintiff was behaving as Cons Fulton said in [7] of her statement.

20. The plaintiff said that, after leaving the party, he “started walking and ambling through the park … to take a short cut.” He then marked on exhibit B (an aerial photograph, enhanced by Google) the route his group took. Making allowance for his misplacing the venue of the party, the route taken was from the western end of Lucasville Road, diagonally across the park to its southern boundary near the T intersection of Park St and Euroka Rd, then along the northern side of Park St which they crossed east of the intersection of Park St and Ross St, then headed a short distance west along the southern side of Park St, till they arrived outside the “Bakehouse on Park”, which is one shop east of the south eastern corner of the intersection of Park and Ross Streets. That corner is occupied by “Con’s Continental Delicatessen”. In front of the Bakehouse is a bus stop and, at the back of the bus stop, below the plate glass window of the Bakehouse, is a bench seat of the type commonly found as street furniture near bus stops. The plaintiff’s group “sat down and waited to get picked up” (T15.06).

Further police activity

21. LSC Adams gave this evidence:

“Q. Can you describe what was happening at the party or at the location when you arrived?

A. I seen a large number of young persons. Now, when I say "young", 21 and below probably, in my eyes, leaving the party, all relatively intoxicated.

Q. When you say someone is intoxicated, what are the various indicia of intoxication in your assessment?

A. Well, they're obviously - they're louder. They're - most of them were jovial. You can just tell their - their experience of drinking perhaps probably wouldn't have been as good as someone a bit older, but they all seemed to be sort of coming - moving out - they did - they obeyed the direction of leaving the premises. They were moving away from the premises to the park, the majority. That's - and because you know, staggering up the street and wandering on the roads is a common - it's something common that they generally do. They don't stay on the footpaths. They wander on the road or they'll sort of wander and meander in the front - people's front yards and urinate and all sorts of things. So, it was my responsibility to try and keep it under control as much as I could with the car crews that we had.

Q. How did you approach the task of keeping it under control?

A. I just told Blue Mountain 16, Mammen and Fulton, to do a general patrol, "high visibility", we call it, and I would do the same.

Q. So, a high visibility general patrol, what did that involve in the circumstances?

A. That just - close proximity to the group of young persons let's them know that there's a police presence and we were trying to funnel them down to the railway station, Glenbrook Railway Station and up - sort of up near the service station area where it's really well lit.”

Two other police units had offered assistance to the Blue Mountains police. One unit was PTC 10 (“Public Transport Command 10”), an unmarked police vehicle, containing, in order of seniority,

Cons Christopher Doyle

Cons Russell Budin

Cons Franjo Maracic

Each of these officers was in plain clothes. They were attached to Parramatta PTC TAG North West. PTC 10 responded to a VKG broadcast at 22.06.35. At 22.12.29 VKG directed PTC 10 to make its way to Glenbrook Park. They arrived “on scene” at 22.16.04.

22. The other unit was Dog 68. This was SC Benjamin Cook together with “Gordon”, a 42kg, black German Shepherd dog. SC Cook offered to assist at 22.05.22. LSC Adams asked at 22.06.04 if he could come quickly and SC Cook then went to “code purple”. Like PTC 10, Dog 68 was directed to go to Glenbrook Park at 22.12.09. At the request of LSC Adams, VKG directed Dog 68 to go to the cinema area of Glenbrook Park “and get your little partner out and go for a walk”. Dog 68 arrived at Ross St at 22.17.33. Much evidence was given about the activities of BL 14, BL 16, PTC 10 and Dog 68 in Glenbrook Park. This was to effect the plan given in evidence by LSC Adams which I have just quoted. The plaintiff gave this evidence:

“Q. Did anything happen whilst you were in the park?

A. Yeah, we were kind of told to move along, you know, go home kind of thing. Just the general people in the park.

Q. Were you spoken to specifically?

A. Say directly, no.

Q. Who was doing the speaking?

A. Uniformed officers.”

In cross-examination, the plaintiff said that he saw a policeman in uniform with a dog “across the road” from the Bakehouse (T43.46).

23. At 22.24.35 LSC Adams called VKG:

“BL 14. I’m with a dog handler [Dog 68] and … PTC 10. Most of the crowd has moved over towards the shops. You might get some cars to drive there just to stop any mal-damage [malicious damage]. We’re just wandering through the park at the moment with the dog.”

VKG then directed BL 16 to go to the Springwood shopping area and “just patrol the shops to stop any mal-damage”.

24. At 22.36.05 LSC Adams asked VKG to direct a car to Ross St. Seconds later VKG directed BL 16 and NWM 246 to Ross St. A simplified geographical excursus may assist. Glenbrook Park can be described as a rectangular area, bordered on the north side by the Great Western Highway, on the east side by Green St (although the most southern section of the street is identified in exhibit B as part of Park St), on the south side by Park St and on the west side by Ross St. Ross St commences at the Great Western Highway and runs south. After crossing Park St it continues on to Burfitt Parade, which runs parallel to the railway and where Glenbrook Railway Station is to be found. Exhibit B and my street directory indicate that the shopping area of Glenbrook is between Park St and Burfitt Parade, mainly along Ross St, south of Park St. The Glenbrook Cinema is in the north-west corner of the Park and, beneath that, in the south-west corner of the Park, are three tennis courts and an adjoining pavilion. LSC Adams identified a community centre as being opposite the Bakehouse, in the Park, and that may be the structure identified as “30” in both exhibit B and exhibit 7. The Park also contains on its north side a Visitors Information Centre to which motorists may gain access from a lay-by (Hamment Place) off the Highway.

The plaintiff’s version of his arrest

25. The plaintiff, Kane Pembroke, Alexis Baldock and Zachary Baldock were waiting out the front of the Bakehouse for Kane’s sister to arrive. Kane, Alexis and Zack were sitting on the bench seat. The plaintiff was standing on the left side of those sitting on the bench, close to the delicatessen. He was leaning against the plate glass window of the Bakehouse. He was holding his skateboard on his left-hand side. Nearby at this time were Declan Renshaw, Morgan Vanderant and Dylan Watson. The plaintiff was in conversation with those gentlemen.

26. The plaintiff was only at the bus stop for less than 10 minutes when he was approached by “three big men”. It is now common ground that these were the three constables from PTC 10. They were wearing “normal clothes”. One of them approached Zachary Baldock “and grabbed his bottle of alcohol and started pouring it into the gutter”. This was Cons Doyle. The bottle was Johnny Walker Black Label whisky. From exhibit 15 (papers relating to the prosecution of Kane Pembroke), Mr Pembroke was the first to be seen drinking from this bottle. He then passed it on. When the bottle was in the hands of Mr Baldock, Cons Doyle seized it and proceeded to pour the whisky into the gutter – exhibit 14. In these exhibits, Cons Doyle said that Mr Baldock yelled, “Fuck you, I’m 18.” Mr Baldock was in fact 18 years old.

27. None of the lawyers involved in these proceedings appears to have observed that Mr Pembroke’s date of birth was 16 April 1996 and, accordingly, that 16 April 2014 was his eighteenth birthday. That might explain his possession of a bottle of premium whisky (a birthday gift or a purchase made to celebrate his coming of age) and why he might (if he did) vehemently protest to police that he was in fact now 18 years old.

28. After attesting to the pouring out of the whisky, the plaintiff’s evidence continued:

“And I then said, “Hey, what are you doing? You’re not allowed to do that.” And then one of the guys approached me and kind of grabbed me …”

There is no dispute that this “guy” was Cons Budin. The plaintiff then said:

“He grabbed me by the scruff of my shirt, the front of it [and] swung me around.”

Attempts were made to describe this garment. From exhibit E it appears to be a black, Polo sweater (or imitation thereof). He then went on to say:

“Q. You were swung around. Did you still have a hold of your skateboard?

A. Yeah.

Q. What happened next?

A. My legs got taken out from beneath me and I fell to the ground pretty heavily.

Q. When you say your legs were taken out from beneath you, do you know how that was done or not?

A. I think it's a kick or a leg sweep.

Q. Was that by the person that was holding you?

A. Yes.

Q. And I take you ended up on the footpath, where you were standing initially?

A. Yes.

Q. How did you come to rest on the footpath?

A. Is this the initial fall, or is this once I'm on the ground?

Q. Well, the initial fall, when your legs were swept from underneath you.

A. I fell to my right side.

Q. And which way was your head facing?

A. To the left.

Q. Was it close to the bakehouse, on park?

A. No, it was closer to the gutter.

Q. And what happened next?

A. I was on my stomach and I was completely relaxed. I put my hands behind my head …”

29. The plaintiff then drew a sketch showing his position on the footpath outside the Bakehouse. It shows the plaintiff’s feet as being close to the bench and his head as being close to the gutter. His evidence continued:

“Q. You told his Honour that you fell onto your right hand side. What happened next?

A. I ended up on my stomach at that point, put my hands behind my head, like in the movies, and was completely relaxed because--

Q. Were you told to put your hands behind your head?

A. Yeah.

…

Q. But you remember putting your hands behind your head.

A. I did.

Q. What happened after that?

A. As I said, they were there kind of ready to be - whatever needed to happen then. He grabbed them and manipulated them aggressively, and like was twisting them and then I turned my head to the right and saw my friend get pushed against the window, and then the officer then grabbed my head by the hair and picked it up and smashed it back into the concrete.

Q. Did that cause you any pain or discomfort?

A. Yeah. It chipped my tooth, and that's when I said to him, you know, "What have you just done? You've chipped my tooth."

Q. Well, what did you say to that person?

A. I said something to the effect of, "What have you just done? You've just chipped my tooth, you effing idiot."

Q. And how did you become aware of the fact that your tooth was chipped?

A. I felt it and it was in my mouth.

Q. You could feel the chipped portion in your mouth.

A. Was on my tongue.

Q. Did it remain in your mouth?

A. It did.

Q. What happened--

HIS HONOUR

Q. Which tooth was it?

A. This one.

Q. Your--

A. At the front.

Q. One of your two front teeth.

A. Front left.

Q. Front left tooth. Right.

A. Little bit of the right as well.

CANCERI

Q. So you were giving evidence that your hands were I think manipulated.

A. Yeah.

Q. And were handcuffs applied?

A. Yes, once - after the--

Q. And were they applied with your hands behind your back?

A. Yes.

Q. Were you still on the ground when that happened?

A. Yes.

Q. And what happened next?

A. I got picked up and pushed against the side of the paddy wagon and then pushed into the back - my friend's back.

Q. How did you feel at that point in time emotionally?

A. Humiliated, embarrassed, scared.”

The last mentioned friend was Mr Baldock. The “paddy wagon” was BL 16. The officer who pushed the plaintiff into BL 16 was Cons Budin (T25.02).

30. In cross-examination, the plaintiff denied that he knew that the “three big men” were police officers: T43.04 to T43.18, T48.50 to T49.13 and then this evidence was given:

“Q. Did you see the police with their police badges and a torch shining over the top?

A. No.

Q. But is it possible that they were there with police badges and a torch?

A. Well, I saw them and I didn't see anything identifying them as police.

Q. They came up to you though, didn't they, and they said "Guys, we're the police"?

A. No.”

31. The plaintiff also denied “screaming profanities at the police officers” (T44.03). When asked whether his friends were screaming things such as “pig” and “cunt” at the police the plaintiff said “my friends don’t talk like that”. The cross-examination then turned to the issue of the plaintiff’s use of offensive language, including the matter I discussed at [7] above. Eventually this evidence was given:

“Q. So you are prepared to use the word "fuck" or "fucking" in conversations, correct?

A. When I was younger, yes.

Q. Well when you were 17, shall we put it that way? All right. So is it possible, therefore, that you may have used the word "fuck" or "fucking" when dealing with the police in April 2014 at Glenbrook?

A. Yes, your Honour. I

Q. Thank you.

A. swore once I had been - my tooth was chipped, that's when I swore.”

Learned counsel for the defendant returned to the issue of offensive language (referring to the plaintiff’s use of Facebook) at T60.15 to T60.21 and then from T65.48 to T75.35. Suffice it to say that I accept that the plaintiff does, from time to time, use offensive language (but so does the vast majority of the Australian population after puberty) and that he, at times, might use such language offensively. Even “four letter words” are these days used merely for emphasis (as intensifiers), as substitutes for forgotten words, or purely out of acquired habit, and even for comic effect, and sometimes even affectionately. Most Australians would find it difficult to say truthfully that they had never used offensive language.

32. Nevertheless, the plaintiff denied using certain words in his confrontation with Cons Budin:

“Q. When these police came over to you, there were a number of profanities being used by people in your vicinity such as "Pig cunts", do you remember hearing that?

A. No.

Q. Do you remember hearing lots of use of the word "Fuck" and it's various derivations?

A. No.

Q. And one of the people who was swearing in amongst this group was you, wasn't t?

A. No.”

33. The plaintiff went on to deny a large number of things that were said by Cons Budin:

“Q. And then a gentlemen who you've described as having piercing blue eyes, Constable Budin, came up to you and identified himself. He said "Guys, my name is Constable Budin", do you remember that?

A. No.

Q. He said "I'm from Parramatta Police Transport Command", do you remember him saying that?

A. No.

Q. And he said "These other guys are cops as well", do you remember him saying that?

A. No.

Q. And then he said "Now, you need to move on and leave this area", do you remember him saying that?

A. No.

Q. "You've been drinking", do you remember him saying that?

A. No.

Q. "Most of you guys are underage", do you remember him saying that?

A. No.

Q. And then he said "The worst thing is, the majority of you guys are intoxicated", do you remember him saying that?

A. No.

Q. "And from what I've just heard, I feel that other people around you are going to fear for their safety", do you remember him saying that?

A. No.

Q. "And for these reasons, I'm going to give you all a direction to move along". Do you remember him saying that?

A. No.

Q. "And further to that, I want to let you know that if you don't move on, you're going to be committing further offences", do you remember him saying that?

A. No.

Q. "And you could be arrested", do you remember him saying that?

A. No.

Q. And then he said "C'mon guys, don't wreck your night, just leave", do you remember he said that?

A. No.

Q. And then you sat there and you said to him "We can sit here, cunt, we're 18, fuck off". Do you remember saying that?

A. No, I was 17.

Q. Do you remember saying that?

A. No.

Q. Then, Constable Budin walked over to you and said "My name is Constable Budin". Do you remember he said that to you?

A. No.

Q. He said "I am from the Police Transport Command", do you remember he said that to you?

A. No.

Q. "You're under arrest for offensive language and for failing to comply with a move on direction, get up". Do you remember he said that?

A. No.

Q. You did stand up then, didn't you?

A. No.

Q. And you had your skateboard with you in your hand.

A. I did.

Q. And Constable Budin then took you by your right elbow, didn't he?

A. I can't remember.

Q. And you had your skateboard in your left hand.

A. Yes.

Q. And you then thrusted your skateboard towards Constable Budin, didn't you?

A. No.

Q. And then after that, Constable Budin let go of your elbow, didn't he?

A. No.

Q. And he took a hold of the skateboard.

A. No.

Q. And he tried to stop himself from being hit by the skateboard that you thrusted into his face, do you remember that?

A. No.

HIS HONOUR: To his face, are you saying?

NOLAN: I'm sorry, into his upper chest area.

Q. Do you remember that?

A. No.

Q. And then, you started yelling at him "Fuck you, fuck you". Do you remember that?

A. No.

Q. And then, Constable Budin tried to take the skateboard away from you and he said "Drop the board or you're going to hit the ground", do you remember that?

A. No.

Q. And you refused to drop your skateboard and you were still struggling with the police officer, weren't you?

A. No.

Q. And then what he did was he grabbed you by the arm and swung you around, didn't he?

A. No.

Q. He grabbed you by the scruff of your shirt, you told his Honour. Is that right?

A. Yes.

Q. And swung you around?

A. Yes.

Q. And then, he performed what you've described as a leg sweep.

A. Yes.

Q. Yes, so he's swept your leg out from underneath you and he was holding you at the time, wasn't he?

A. I can't remember.

Q. And you and he both fell to the ground.

A. Yes.

Q. And your head landed in his bicep as you both fell to the ground, didn't it?

A. No.

Q. And then, you were screaming and yelling and kicking, weren't you?

A. No.

Q. And he rolled you over onto your stomach, didn’t' he?

A. Yes.

Q. And he said "Stop resisting", didn't he?

A. Yes.

Q. And he said "Give me your arms and stop tensing up", he said that?

A. Yes.

Q. And you refused to do that, you were thrashing you body around from side to side and you were kicking out with your legs, weren't you?

A. No.

Q. And then another police officer came in and assisted to keep you still, didn't he?

A. I can't remember.

Q. And then, you were handcuffed to the rear of your body, weren't you?

A. I was handcuffed.

Q. You were handcuffed to the rear of your body, weren't you?

HIS HONOUR

Q. When your hands were cuffed, they were behind your back?

A. Yes, your Honour.

NOLAN

Q. And then you were taken to your feet, weren't you?

A. Yeah.

Q. And you were searched.

A. I can't remember.

Q. And then, Constable Budin, the man with the piercing blue eyes, said to you "You're under arrest for assault police", do you remember he said that?

A. No.

Q. And then he said "And resisting arrest".

A. No.

Q. "And failing to comply with a move on direction".

A. No.

Q. "And using offensive language".

A. No.

Q. And he said "More importantly, you don't have to do anything or say anything for anything you say or do, I'm going to make a record of it". Do you remember he said that?

A. Yeah.

Q. And then he said "That can be used in evidence against you, do you understand that?"

A. Yes.

Q. And then you said to him "But I didn't even hit you", remember you said that?

A. No.

Q. And then he repeated to you "Do you understand that?". Sorry, do you agree with me? Do you agree with me that Constable Budin repeated to you "Do you understand that?".

A. No.

Q. And then, you said to Constable Budin "But you fucking hit me, cunt". You said that, didn't you?

A. No.

Q. And then, Constable Budin said to you "So, you understand the caution and the fact that you're under arrest". Do you remember he said that?

A. No.

Q. And then, you said to him "You hit me, cunt, I'm going to sue you".

A. No.

Q. And then, the police officer said "Mate, I'm not going to argue with you anymore, maybe you should think about it before you drink and carry on like an idiot", do you remember he said that to you?

A. Yes.

Q. And you said "I'm not even drunk".

A. Yes.

Q. Then, the police officer, Constable Budin, and another police officer who was dark complexion, do you remember him?

A. Yes.

Q. They both tried to put you in the caged vehicle, didn't they? The police caged vehicle.

A. They put me into the back.

Q. Well, you resisted getting into the vehicle, didn't you?

A. No.

Q. You put your feet up against the vehicle.

A. No.

Q. To stop you getting in.

A. No.

Q. You didn't?

A. No.

Q. So you just got into the vehicle of your own volition, is that right?

A. I was pushed into the van.”

Cons Budin’s version of his arrest of the plaintiff

34. Cons Budin’s version of his arrest of the plaintiff is contained in his statement of 20 April 2014 (exhibit 18). He made no contemporary, handwritten notes. His record of events was a COPS entry he commenced at 12.21 am on 17 April 2014 at Springwood Police Station. In essence, that COPS entry became the Facts Sheet for the prosecution of the plaintiff in the Children’s Court (exhibit 3). In essence, Cons Budin’s evidence in chief on that issue was a commentary on his statement. Cons Budin said he was alerted to the plaintiff and his group of friends at the bench in front of the Bakehouse by hearing voices of people yelling. He had a distinct recollection of the plaintiff’s saying, “We can sit here, cunt, we’re 18, fuck off”. Of course, if the plaintiff said that, not only might it be described as offensive, but also a lie, in so far as the plaintiff was maintaining that he was 18 years old. At the end of his being cross-examined, I asked Cons Budin some questions:

“HIS HONOUR: Now, I have some questions I want to ask the witness.

Q. Now, I'm going to show you a photograph that's numbered four in exhibit E, senior constable. Now, you can assume that that's a photograph taken of the plaintiff when he was in the police station at Springwood after being arrested, all right?

A. Yes.

Q. He looks very young, doesn't he?

A. He does.

Q. He looks to me like he's 12 or 13.

A. Yes, your Honour.

Q. Did you form the view that he was a youngster - under age?

A. Once back at the station.

Q. What about when you first saw him at Glenbrook out the front of the bakery?

A. I suspected, but not 100%.

Q. When he said to you words to the effect of, "He was entitled to be there because he was 18," did you believe him?

A. No.”

Put shortly, Cons Budin did not believe that the plaintiff was 18 years old on 16 April 2014, and, had he done so, I could not find that any such belief was reasonable.

35. It must be noted that Cons Budin did not attribute any particular offensive language to the plaintiff prior to his saying “We can sit here, cunt, we’re 18, fuck off”. He gave evidence of offensive language coming from the group of people at the front of the Bakehouse, but the only words he could attribute to the plaintiff, prior to the arrest, are the ones I have just quoted. Furthermore, it should be noted that, in reality, no time was allowed to the plaintiff to move on prior to Cons Budin’s arresting him. Accordingly to the Constable, the plaintiff was sitting, not standing. If he were sitting, he was not given an opportunity to stand up. Cons Budin’s reaction to the plaintiff’s statement was immediate.

36. Cons Budin was then asked what was going through his mind immediately after the plaintiff said the words attributed to him and the Constable decided to arrest the plaintiff:

“… So basically I just wanted to get him out of the immediate area, reduce any further offences occurring.

Q. Why did you want to get him out of the immediate area?

A. Just so no one else got hyped up as well, reduce further incidents happening.

Q. Why did you hold a concern that other people would get hyped up and there would be other incidents occurring?

A. Due to the fact there were a number of people drinking. Normally you arrest one person, other people get involved.

Q. Why did you choose to arrest Mr Gibb Smith if there were a number of other people there?

A. Because he was the one who was continuing the offences.

Q. What offences are you referring to?

A. Offensive language, failing to move on direction.

Q. And why did you take the decision to arrest him as opposed to some other police discretion you had at your disposal?

A. Well, at that time that was all my options. He was still committing further offences.

Q. Pardon me? I’m sorry. At that time - and I missed what you said?

A. He was still committing further offences.

Q. Yes, so what other options did you understand you had available to you at that time?

A. None.”

37. Cons Budin then went on to admit that prior to arresting the plaintiff he made no enquiry of him as to his identity. This was confirmed early in cross-examination at T296.27. The Constable said that he was not in a position to issue a Court Attendance Notice (“CAN”) to the plaintiff as the plaintiff was “intoxicated” and “[i]t would not have stopped the offence”. The Constable was then asked what led him to the view that the plaintiff was “intoxicated”. He gave this evidence:

“Q. Did you observe any things about his demeanour personally that suggested to you that he was intoxicated?

A. Just angry.

Q. Well, I can be angry but I don’t have to have a drink to be angry. What about his anger made you believe that he was intoxicated?

A. Just for no reason. I was just - straightaway aggressive.

Q. Did you smell intoxicating liquor on him?

A. Not at that stage.”

The Constable then said that he could not issue a CAN to persons who are intoxicated. When asked why, he said: “It’s legislation, I think, something we’ve always been taught.” I have not been directed by learned Counsel for the defendant to any legislation or Commissioner’s Instruction, or the like, which supports Cons Budin’s contention. I shall address the question of the plaintiff’s intoxication and Cons Budin’s knowledge of it later.

38. Cons Budin’s evidence in chief then turned to the issue of the plaintiff’s skateboard and how the plaintiff “used” it. I have quoted what the plaintiff said about that in cross-examination at [33] above. Cons Budin said that he attempted to remove the skateboard from the plaintiff by grabbing “the front kick underneath the track”. He meant by those words “the metal bit that goes under the wheels of the skateboard”. Nevertheless, the skateboard was still “coming towards” him and he thought “it was going to hit [him] in the face”. After telling the plaintiff to drop the skateboard or else he would be taken to the ground, the Constable said he spun the plaintiff around. He then said:

“Q. How did you spin him around? Can you identify that?

A. I just leaned forward and took hold of his shoulder, I believe, and pulled him back around this way.

Q. So how was he facing - in the same direction to you or another direction?

A. When I pulled him around he had his back to my chest.

HIS HONOUR

Q. Well, you’re indicating you’re pulling with your left hand and pushing with your right to turn him around.

A. I believe so, yes.

Q. See, I have to say these things because the transcript will get read sometimes in the Court of Appeal and they won’t know what you demonstrated because they don’t see you. So what you demonstrated was pulling with your left hand and pushing with your right?

A. Yes, your Honour.

Q. To turn the fellow around.

A. That’s correct.

NOLAN

Q. And then at this point the young person’s legs were swept from under him. Now, what do you mean by that?

A. So basically using my left foot I took my - kicked his legs out.

Q. Which leg - one leg, two legs?

A. I think I went for one but I think I may have got both. I can’t remember.

Q. So Mr Gibb Smith was facing in the same direction as you. How were you holding him at this stage?

A. I would’ve had probably one - right arm over his shoulder.

Q. So the right arm over his?

A. Over his shoulder.

Q. His right shoulder.

A. Down towards his chest.

Q. His right shoulder.

A. Yep.

Q. And hand on his what?

A. Chest.

Q. Left breast?

A. Yeah, probably underneath the shoulder or armpit.

Q. Under left arm?

A. Yep.

Q. And where would your other hand have been, do you think?

A. Most likely would’ve been locked onto here, onto my wrist.

HIS HONOUR

Q. So you’re sort of putting him into a bear hug?

A. More or less but over the shoulder and under the shoulder.

NOLAN

Q. And then you kicked with which leg, do you remember?

A. I believe it would’ve been my left leg.

Q. Why your left leg?

A. Because my right is the dominant side. I just keep that on the ground.

Q. So you hold yourself stable with your dominant leg and you kick out with your other leg. So you think you got both legs. Is that right?

A. I must of, yes.

Q. Why do you say you must have?

A. Because he lost complete balance and I went down with him.

Q. And then what happened?

A. We both fell on the ground, his head was on my arm - bicep.

Q. Which bicep? You've just indicated

A. My right.

Q. Your right bicep.”

I have quoted this in extenso as, if the question arise, it is relevant to the quantum of damage. The Constable then said that he rolled the plaintiff onto his stomach and attempted to handcuff him. The Constable said, “I would have knelt next to him as I pulled his right arm up first and then his left arm.” This was made difficult by the plaintiff’s “tensing up”. In [12] of his statement Cons Budin said:

“The Young Person thrashed his body from side to side and was kicking out. At this point Constable Franjo Maracic assisted me and held the Young Person’s legs still. The Young Person was handcuffed to the rear.”

Cons Budin was asked whether he said anything else to the plaintiff that was not recorded in his statement and he said:

“I would have said – I think I said, ‘Stop resisting and give me your arm. Stop tensing up your arm. Give me up your – give me your arm, stop tensing up.”

This langauge, and other language used by Cons Budin which I quoted in this paragraph, raise the issue of possible reconstruction by the Constable of what actually occurred.

39. A little later Cons Budin expanded on the role of Cons Maracic in the arrest of the plaintiff:

“Q. Then you've received some assistance from - then - Constable Maracic. How did he come in to assist you?

A. He jumped in and went legs - he held the legs. Put pressure on them, held the legs down. Takes a body resistance and you can handcuff.

Q. Pardon - sorry, you're speaking too fast.

A. Sorry.

Q. Someone's recording this to create a transcript so just slow it down. Would you say that again, please?

A. So basically, when you put pressure on the legs just around the top of the calves, it enables his hips to stop lifting up and you can get a stable platform to handcuff.

Q. How else did he assist you?

A. He may have held an arm when I went to put the cuffs on - he may not have, I can't remember.”

40. After the plaintiff had been handcuffed, Cons Budin assisted him to his feet and frisk-searched him. The Constable was unable to remember whether anyone helped him to get the plaintiff to his feet but he “imagined” someone would have. In his statement, the Constable recorded this conversation with the plaintiff:

Budin: “Listen mate, you’re under arrest for assault Police, resisting arrest, failing to comply with a move on direction and using offensive language, more importantly you don’t have to say or do anything if you don’t want to but anything you say or do I will make a record of, this can be used in evidence, do you understand that?”

Plaintiff: “But I didn’t even hit you”

Budin: “Do you understand that?”

Plaintiff: “But you fucking hit me cunt.”

Budin: “So you understand the caution and the fact that you’re under arrest.”

Plaintiff: “You hit me cunt. I am going to sue you.”

Budin: “Mate I am not going to argue with you anymore, maybe you should think before you drink and carry on like an idiot.”

Plaintiff: “I am not even drunk.”

Despite using direct speech in his statement, the Constable said in oral evidence, when asked whether those were “exact words”, they were words “to the effect”, as far as his first remark was concerned but he was “pretty sure” that the remainder of the conversation was “exact”. When asked why he was sure, he said:

“Cause I remember him saying “you fucking hit me cunt” – I remember that. I remember him saying, “But I didn’t even hit you and you hit me, cunt. I’ll sue.” I remember those words.”

41. Paragraph 14 of Cons Budin’s statement is this:

“I placed the Young Person in the rear of a Police caged vehicle it was a four wheel drive, as closed the internal cage door the Young Person said I am going to fucking sue you. I told the Young Person not to say anything further. Whilst placing the Young Person in the rear of the vehicle was made aware the Young Person smelt heavily of alcohol, his eyes were red and blood shot. I formed the opinion that the Young Person was affected by alcohol he was of a well affected state. The Young Person did not appear to have any injuries from the arrest.”

In oral evidence, Cons Budin said:

“Q. Can you describe for his Honour how you placed the young person in the rear of the caged vehicle?

A. It would have been - I had him by - he would have been facing me and I would have pushed him in backwards. 'Cause it was the Pajero, so it's got a back step and it's got a cage inside the back. I would have waited 'till he got one leg up, he would have put his weight on me, I would have pushed him in backwards so his back end land on the seat.

Q. Why did you place him in the vehicle that way?

A. 'Cause I've never done - I have standard procedure of putting them in that way. That way if they're gunna kick out, they hit your legs not your face and chest.

Q. It's a standard police procedure, is it?

A. It's something I've always done. I'm assuming it's standard.”

No evidence was given by Cons Budin that the plaintiff resisted being put into the police vehicle, that the plaintiff put his feet up against the vehicle to stop his being placed in it, matters which were put to the plaintiff in cross-examination, but denied by the plaintiff.

Cons Doyle’s evidence concerning the plaintiff’s arrest

42. Cons Doyle’s statement (exhibit 13) contains this matter:

“8. About 10:30pm myself, Constable BUDIN and Constable MARACIC walked over to where the dog handler and the Supervisor were standing. They were standing opposite the bakery ‘Bake House on Park’ which is situated on the corner of Park and Ross Streets, Glenbrook.

9. I could see a number of 8-10 young people sitting on the bench outside the bakery. I could hear member of the group yell the words and “Pig cunt”, “Fucking dog” and the word “Fuck”. Additionally I saw an open bottle of ‘Johnny Walker’ whiskey being passed amongst the group.

10. Constable BUDIN, MARACIC and I approached the group. Constable BUDIN had a conversation with the group. I showed the group my NSW Police badge and Warrant card to the group and said “I am Constable DOYLE from the Police Transport Command. How old are you?” Only one member of the group replied and said “15”. Whilst I was standing near the group Zachary BALDOCK drank form [sic] the bottle of spirit. I immediately removed the bottle from his hand and began to tip it in the gutter.

11. It was at this point Kane Pembroke became verbally aggressive towards me and said “You can’t fucking do that. I’m 18”. I formed the opinion that PEMBROKE was intoxicated as he stumbled when he spoke and additionally spittle was ejected from his mouth as he spoke, appeared to be sweaty and to have blood shot eyes. Additionally I could smell liquor on his breath as he yelled at me.

12. Following this I hear Constable BUDIN say word to the effect of “Ok, you’re under arrest.” This was shortly followed by the “Put the skate board down.” I turned and looked towards Constable BUDIN to see a male who I now know as Riley GIBB-SMITH swing a skate board at Constable BUDIN’s head. I saw Constable BUDIN take GIBB-SMITH to the ground.

13. Following this he was placed into the rear of the caged vehicle. Constable BUDIN, MARACIC and I attended Springwood Police Station where I continued my duties.”

In his note book (part of exhibit 13) Cons Budin recorded that: “The male [the plaintiff] attempted to swing his skateboard at Cons Budin [who] took the male to the ground.” There is no mention of the skateboard being swung at Cons Budin’s head. In oral evidence he did not recall the skateboard being swung at Cons Budin’s head or, indeed, whether it was swung at his chest or abdomen. He did not see the plaintiff fall to the ground, he merely saw the plaintiff on the ground. He was unable to recall any interaction with the plaintiff at all at the Police Station (T206.36).

Cons Maracic’s evidence concerning the plaintiff’s arrest

43. Cons Maracic’s statement (exhibit 17) contains this matter:

“6. About 10:30 pm I observed a group of youths sitting on a bench out the front of a shop on the corner of Parkes and Ross, Street. Information received stated that these youths were underage and drinking alcohol. Constable DOYLE, Constable BUDIN, a police dog, his handler who was in full police uniform and the local supervisor approached the youths.

7. I removed my police identification and said “Guys, it’s the police”. Constable DOYLE and Constable BUDIN spoke with the youths in relation to their behaviour. A number of the youths began swearing at us and calling us ‘pig cunts’ and the word ‘fuck’. One of the males involved was the young person who I now know to be Riley GIBB-SMITH. He was not happy and continuously kept on raising his voice and ignoring Constable BUDIN’s directions.

8. Constable BUDIN then had a conversation with the group of youths. I heard Constable BUDIN say words to the effect of ‘My name is Constable BUDIN from Parramatta Police Transport Command you need to leave the area”. The young person replied to Constable BUDIN and said “We can sit here cunt we’re 18 fuck off”.

9. Constable BUDIN then approached the young person and said words to the effect of “My name is Constable BUDIN, from the Parramatta Police Transport Command; you’re under arrest for offensive language”. I saw the young person stand up, he was at the time holding a skateboard. Constable BUDIN took hold of the young person by his right elbow. The young person then raised the skateboard and swung the skateboard towards Constable BUDIN. The skateboard connected with the Constable’s upper chest.

10. Constable BUDIN then conducted a leg sweep on the young person which resulted in both Constable BUDIN and the young person to fall on the ground. I then moved in and assisted Constable BUDIN. The young person continued yelling and kicking out at me and Constable BUDIN. I then said “stop resisting”. Constable BUDIN handcuffed … the young person. I then heard Constable BUDIN say words to the effect of “You’re under arrest for assault police, resisting arrest, you do not have to say or do anything if you don’t want to, anything you say or do I will record. This recording can be used in court”.

11. The young person was conveyed to Springwood police and entered into custody as per the requirements.”

In par 6, “his handler who was in full police uniform” is a reference to SC Cook, who was not in full police uniform, but “in blue marked overalls with ‘POLICE’ written on the back and the front and patches on the … shoulders” (T226.11). In the same paragraph the reference to the local supervisor is a reference to LSC Adams. The reference in par 7 to removing police identification is in fact a reference to showing or displaying police identification. At T235 the Constable gave this evidence in cross-examination:

“Q. Do you remember why it is that you walked across the road?

A. Yes, because there was a group of the youths sitting on the bench. We were also alerted to these youths by black - Blue Mountains 14.

Q. Your concern was to prevent under age drinking, correct?

A. That's correct, and just to disperse the crowd.

Q. Were you in plainclothes?

A. Yes, we were.

Q. As you approached, did you show your identification?

A. Yes, we did.

Q. How did you do that?

A. I removed it from my wallet, it was a, like, a wallet, sort of type flip, one side it has a warrant card and the other side it has a police badge on a light blue backing.”

44. Of particular importance to the defence case is that Cons Maracic corroborated Cons Budin’s assertion that the plaintiff said, “We can sit here cunt, we’re 18, fuck off.” Cons Maracic had given evidence in the Children’s Court on 10 October 2014 in the prosecution of the plaintiff. He agreed that in those proceedings he had given this evidence:

“Q. I suggest to you that independently, you don’t have a specific recollection of what the young person Riley said as opposed to someone else in the group.

A. Yep.

Q. You’d agree with me?

A. Yes.

…

Q. I suggest to you that the words you’ve attributed to the young person, “We can sit here cunt; we’re 18, fuck off”, I suggest to you that … if it was said, [it] was said by someone else in the group.

A. Could have been.

…

Q. When you say you started to remember the incident, I take it that prior to reading the statement, you had no recollection of the young person saying that?

A. Correct.

Q. I think an answer you gave earlier but tell me if I’m wrong, is that as you sit here today and independently think about your own memories, you can’t recall who said what?

A. That’s correct.

Q. That I’m not misleading you, before you read Constable Budin’s statement, you had no recollection of the young person saying it, and today you have no recollection of the young person saying it?

A. Yes.

Q. Again, I suggest to you that the reason that you said it in evidence, and put it in your statement, is because you read it in Constable Budin’s statement, and that’s why you’ve said it today.

A. That’s correct.

HIS HONOUR

Q. Just because it was in Constable Budin’s statement, you put it in your statement?

A. I said words to the effect of.

Q. Whether you said words to the effect of or not, just because you saw that sentence in Constable Budin’s statement, or a sentence that has been attributed to have been said by the young person, are you saying that just because it was there in his statement, you included it in your statement?

A. Yes.”

Eventually, Cons Maracic after being cross-examined about that told me this:

“Q. Now, the questions that are being read to you, and you've looked at, that are recorded as having been given in the Children's Court, strongly indicate that that statement, "We can sit here, cunt, we're 18, fuck off" was recorded by Constable Budin in his statement and you refreshed your memory from his statement, and based on that, you gave that evidence but you had no independent recollection of it. Is that a fair summary of what you told the Children's Court magistrate?

A. That's correct.”

The relevant part of Cons Maracic’s notebook is part of exhibit 17. He was cross-examined about its contents. On this issue, he gave this evidence at T242:

“Q. … the only words that you attribute in your notebook to Mr Gibb-Smith are, “Fuck off, dogs” and the use of the word “cunts”, is that right?

A. Yes, yes.”

Put shortly, Cons Maracic provides no independent corroboration of the words attributed to the plaintiff by Cons Budin. He made no contemporaneous note of it, and only recorded it in his statement of 28 May 2014 after “refreshing his memory” from Cons Budin’s statement of 26 May 2014 and he had no independent recollection of it when giving evidence in the Children’s Court on 10 October 2014. This recollection could not plausibly improve between that time and giving evidence before me on 6 April 2017.

45. In his notebook, Cons Maracic recorded that the plaintiff “picked up his skateboard and raised it and swung the skateboard towards Cons Budin striking him in the upper body/chest area.” In the Children’s Court, Cons Maracic said on this topic:

“A. … I saw the young person; he was holding the skateboard in the left hand. He swung it towards Constable Budin and it kind [of] connected with Constable Budin’s upper chest.

Q. [He] swung it towards his chest.

A. Yes. It did connect but how much force he used, I don’t think it was a lot, but it did connect.”

Cons Maracic told me that that was his recollection at that time and was still his recollection when giving evidence. The problem for the defence case is that neither Cons Doyle or, in particular Cons Budin, said that the skateboard actually struck any part of Cons Budin’s body. In fact, Cons Budin’s statement, exhibit 18 at [11] says that Cons Budin took hold of the skateboard to prevent his being struck by it.

46. Cons Maracic stoutly maintained in cross-examination that each of Cons Doyle, Cons Budin and he announced their office, producing identification, prior to the arrest of the plaintiff.

47. Cons Maracic’s recollection of his assisting Cons Budin in his arrest of the plaintiff is not consistent with the evidence of Cons Budin (see [38] above):

“Q. Do you remember if Mr Gibb-Smith was handcuffed?

A. Yes, he was.

Q. Were you involved in that process?

A. I restrained him until he was handcuffed.

Q. Do you agree that--

HIS HONOUR

Q. How did you restrain him? Did you sit on his legs or hold his legs down or hold his arms?

A. No, hold his arms, your Honour, or arm.

Q. Which arm?

A. The right.

Q. You indicated your right.

A. That's correct, your Honour.

Q. So, you held his right arm?

A. That's correct.

Q. As far as you can recollect did Budin get hold of the left arm, did he?

A. That's correct.

Q. The cuffs belonged to Budin, did they?

A. That's correct, your Honour.

Q. He applied them, what, to the left first and then the right or--

A. I can't remember.

CANCERI

Q. I suggest to you that Mr Gibb-Smith was not offering any resistance to you and Constable Budin. Do you agree or disagree?

A. Disagree.”

The evidence of LSC Adams concerning the plaintiff’s arrest

48. LSC Adams was attested as a probationary constable of police in May 1987. He performed general duties at St Marys, Penrith, Mt Druitt and Pennant Hills. He was then attached to the Rescue and Bomb Squad until 2009 when he joined the Blue Mountains LAC. Whilst serving in the Blue Mountains LAC he was still on call for the Rescue and Bomb Squad. He went on sick report on 28 May 2014 (six weeks after the events of 16 and 17 April 2014) with lower back and hip injuries and did not return to duties prior to being medically discharged from the NSW Police on 9 March 2017. At the time of giving evidence he had retired to a rural area of Victoria. These matters are relevant to his evidence for a number of reasons:

1. he did not make any statement relevant to the current proceedings; he made no statement for use in the Children’s Court in the prosecution of the plaintiff nor, as far as I am aware, for the prosecution of either Zachary Baldock or Kane Pembroke in the Local Court; he was called without having made any statement for these proceedings;

2. over a period of 27 years he would have been involved in probably thousands of matters, involving many, many people;

3. like many people who do the same job regularly, he would have his normal routines and procedures, which might often inform his recollection of events;

4. he provided me with no particular reason for recollecting the events of 16 and 17 April 2014, in so far as individuals were concerned;

5. the only contemporaneous records available to him were the Custody Management Records; and

6. between 28 May 2014 and 9 March 2017 (three weeks before giving evidence), he would have been preoccupied with his own health concerns and questions relating to his medical discharge, which many members of the Police Force find burdensome.

49. Mr Adams presented as an impressive witness and his evidence appeared to be quite plausible. Indeed, learned Counsel for the defendant urged me to accept his evidence. In her revised written submissions, MFI 15, she said:

“5. Leading Senior Constable Adams’ recollection of the Incident is such as one would expect of a senior police officer who was supervising at the time of the Incident, and was also the custody manager for the Plaintiff and his friend, Zachary Baldock. As the Senior Constable went on sick leave shortly after the Incident, this would also contribute to explaining why his recollection is so clear; it has not been affected by the melee of various subsequent taskings as a police officer. His evidence was given in a fair-minded manner.”

Unfortunately, I have come to a different view. To accept that the evidence of Mr Adams was accurate and reliable would require me to reject evidence given not only by the plaintiff but also by Cons Budin, Cons Doyle, Cons Maracic, Cons Fulton and, probably, SC Cook.

50. The plaintiff’s case is that he was standing with his back to the window of the Bakehouse, when he was approached from his right hand side by the three PTC Constables walking along the footpath on the southern side of Park Street, heading west. The evidence of the three constables is that they approached the plaintiff and his friends by crossing Park St from the park to the Bakehouse. The thrust of their evidence is that they were with LSC Adams and SC Cook in the park and that they were followed to the Bakehouse by the senior officers. SC Cook gave this evidence:

“Q. What do you remember?

A. My memory of walking through the park towards the shops and just keeping an eye out on some other police and just other groups of people walking around just to make sure that there was no offences being committed and that the police were all right and protected.

Q. Do you remember if you went to the shops or not?

A. I think from my memory I made it to the roadway of the shops but I don’t really recall specifically about going and walking up and down the shops. I can't remember.

HIS HONOUR

Q. May I take it from what you've said previously that you were following other groups of police when you're in the park, that your role, job, is to back up other police?

A. That's correct. My main role would be police protection.

Q. So that you'd only have - your job would be there to unleash the dog if for example there started to be a brawl and the police were coming second in the brawl?

A. Correct.

Q. So, your primary role is in reserve?

A. We're as support for police.

Q. In battle terms, you were the "backup regiment"?

A. Correct.

NOLAN: Your Honour would get on splendidly with my father.

Q. So, you recall coming to the roadway. Do you have any recollection thereafter of what happened?

A. Not a very good memory of anything other than standing around and maintaining police protection.

Q. Can I ask you just to have a look at one entry, please, page 4 of the CAD? At 22:39:12, read that entry. Does that refresh your memory in any way?

HIS HONOUR: Sorry, 22?

NOLAN: 39.12.

Q. It's Blue Mountains 14, it's the supervisor. Does that refresh your memory?

A. Yeah, I remember - I remember there was some type of incident but I wasn't involved in it. I was - it was, again, police protection. My main concern was just to make sure that no one would come in onto the police. But, again, it's very faded, my memory of it. I do remember - after reading, I do remember that there was something that happened but my objective was to make sure that the police were fine, that the other crowd of people didn't come up to them.”

A little later, SC Cook said this:

“A. In general, if the police are in a fight, or jobs like this, they normally deal with the offender and our job then becomes to make sure that no one comes up from behind the police or - so, we're generally looking out away from what's going on because we're making sure no one sneaks up.

Q. Anyway, your recollection, if you just go to the map again might be the easiest, if you can see there the shops in question, one that's marked with a big red dot, "Bakehouse on Park" you see that?

A. I do.

Q. Now, you see it's facing onto Park Street and your recollection is you stayed in the park which is on the other side of the street?

A. I wasn't fully in the park. By that stage I'd moved on to Park Street.

Q. Yes, onto the street itself.

A. From my memory.”

51. The evidence of Mr Adams is that things happened quite differently. The relevant evidence is this:

“A. ... So part of the crowd had sort of come down towards where I was standing which was opposite - in Ross Street - in the park. I moved back to the shops on the other side of the road opposite the park which was--

EXHIBIT B AND EXHIBIT 7 SHOWN TO WITNESS

Q. So exhibit 7 is a plain map and exhibit B is a map which has some markings on it. I’ll ask you whichever one is better for you to identify. So did you walk all through the park when you were giving move on directions or were they taking a particular route?

A. They were taking a particular route so on this exhibit B if you leave the Glenbrook Park and you head west on Park Street and then you turn left into Ross Street. That takes you down towards the railway station so they were following that route, a lot of the group, and also across the park directly in front you’ve got Glenbrook Rotary Markets. There’s a Shell Service Station which is not quite - it’s on the corner there of Ross and the Great Western Highway.

Q. The little petrol icon?

A. Yeah, so they were filtering up towards that as well.

Q. So then you’ve got to a juncture in your evidence where the three police transport officers, they’ve moved through the park and they were in Ross Street, whereabouts in Ross Street were they? Can you identify it with any specificity?

A. Look, they - they’d gone into the park. I’d moved back across the road to the Bakehouse on the Park. That’s the bakery.

Q. Yes, and what did you observe when you reached the Bakehouse on the Park?

A. There were the two - sorry, three transit officers come back over towards me or they - they might have stood on the - near the roadway there.”

He then gave evidence about the police dog and its role and continued:

“Q. You’ve come to the Bakehouse on the Park, and I’ve asked you what did you observe there and you’ve said that the police transport command were there also, can you just pick up from that point and tell his Honour what happened.

A. Yes, so they moved to where I was so part of the crowd was sort of sifting coming across. We wanted to keep them away from that group - the shopping centre there on Park Street, big plate glass windows, small narrow corridor footpath area. There’s a bakery, obviously there’s a bakery, the food shop. There’s a salon. So they’ve got big plate glass windows. My experience in the past is they get rowdy, get pushed and shoved, someone gets hurt perhaps pushing in a plate glass window, property gets damaged, so we try and follow them - try and keep them away from that. PTC come across to me.

Q. When you try and keep them away from that what do you specifically do?

A. I stood as a barrier in front of the Bakehouse. It’s got the biggest plate glass window and it’s on the corner.

Q. And when you got to the Bakehouse what did you observe? Were there any people there?

A. There were - they were sort of - there was a group of people who stopped and questioned our authority to move them on. That group would’ve been around about four or five persons. Now, that would’ve been on the corner of Ross Street and Park Street.

Q. And do you remember the words that these people used?

A. “You can’t tell us what to do.” There was some offensive language coming from that group. Now, they hadn’t quite got to Ross Street at that stage so they were probably opposite me at the Bakehouse on the Park there. So they hadn’t got to Ross Street and it may have been only 20 metres or so before they got to Ross Street and would’ve turned left but they questioned, “You can’t tell us what to do. You’ve got no authority to tell us what to do.” They were - some of them were carrying alcohol, I remember that - and then there was sort of two or three out of that five come across to where I was standing which was now on the footpath at the Bakehouse along with the PTC officers and again questioned our authority and we can’t do this, we can’t move them on.

Now, that’s an alcohol-free zone all through there, okay, all that area is alcohol free. I remember saying to the group, "Tip your alcohol out," I remember saying that, that they were carrying bottles, to "tip it out", there were too many people to pull aside and issue infringement notices to, there was just too many, and that can cause more of an altercation with other crowds, so while - we were trying to do this.

Q. Why do you say that giving out infringement notices causes an altercation?

A. Because we - because we don't want to upset, you know, the remaining 40 or 50 there, we were still outnumbered, you know, probably about four to one at that stage, five to one. So just by getting them to tip it out, move on, go home, you've had a good night, just trying to keep things at low key, just to keep them moving and get them down to the station, and then the idea was just to monitor the station.

Q. You're aware that these proceedings concern an incident which occurred at the Bakehouse.

A. Yes.

Q. Do you have any personal recollection, or did you see what went on?

A. I remember there were - there were three people, out of the five, there were three that actually came across and stood with us, there may - three. Again, they challenged - one was on a skateboard, one had - was carrying

Q. The one that was on the skateboard, did you have an encounter with him later on in the evening at the police station, did he come into your custody?

A. Yeah, he was in my custody, yes, later on, he was arrested.

“48 Definition of “intoxication”

A reference in this Part to a person being intoxicated is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken).”

I accept that the plaintiff was under the influence of alcohol at the time Cons Budin purported to arrest him and for some time thereafter. Was he intoxicated to the extent that his capacity to exercise reasonable care and skill were impaired? One must ask: reasonable care and skill for what? Fortunately, this question has been addressed by the Court of Appeal in Amanda’s On The Edge Pty Ltd v Dries [2011] NSWCA 358. The plaintiff in that case had attended a wedding reception of the defendant’s restaurant in the Hunter Valley. By 12.30 am only about six or eight persons remained in the area of the marquee erected on the lawn of the restaurant to accommodate the reception. Those included the plaintiff and his partner, the bride and groom, and two other guests. At [5] Allsop P (with whom Beazley and Giles JJA agreed) recited these facts:

“At the end of the evening, Mr Dries and his partner Ms Amy Tunbridge had headed off from the marquee in a northerly direction, that would have taken them across the lawn in front of the restaurant to where their car was parked, to the north of the restaurant. While they were walking in that direction, they were called by friends who were standing approximately at the lamp post at the top of the driveway to the south of the restaurant building, at about the point where the road heads west. Mr Dries and Ms Tunbridge apparently turned and retraced their steps in a southerly direction, to a point roughly adjacent to the southern part of the restaurant building. At this point, hearing the voices of those at the top of the drive, Mr Dries proceeded to the right (to the west) in that general direction. This took him into a garden bed which he crossed and through some shrubs and bushes. On the other side of the bushes, some feet further, was the concrete wall and a drop from where he fell some six feet.”

The plaintiff conceded that he had drunk five to six beers and one to two bourbons and cokes during six and a half hours. He was holding an unopened stubby of beer at the time he fell from the top of the wall. The defence pleaded under s 50 was unsuccessful. At [36] the President said:

“The requirement of s 50(1) was not established. The "extent" of the intoxication relevant for such a finding will depend on the circumstances and the subject or subjects in respect of which the reasonable care and skill may be impaired. Operating machinery, driving a car or flying a plane may be tasks where very little alcohol would be required for the person's capacity to exercise skill and care to be impaired (adequately satisfied by six beers and two bourbons). Here, the care and skill was walking over open ground to get to a destination. There was no reason for him, in the dark, to suspect such a danger as befell him.”

118. In the present case, the plaintiff was sitting and a little later standing at a bus stop awaiting the arrival of a motor vehicle driven by Kane Pembroke’s sister who was to drive him home. Even moderately intoxicated, he could sit, stand leaning against a wall, walk a few paces to the kerb, enter a motor car, sit and be driven home. The argument can be raised that the plaintiff’s intoxication gave him the “Dutch courage” to speak to Cons Budin in the way he did this evening which led to the Constable’s reaction: intoxication, disinhibition, poor judgment. Unfortunately, however, there are some sections of our community which have an animus against authority figures, in particular, the police. Some young people fall into such categories, viewing the police as “wowsers” or “party-poopers”, although their terminology might be otherwise. As far as this plaintiff is concerned, one must have regard to how he addressed the police in January 2014, as discussed at [7] above. There was no suggestion that the plaintiff was inebriated at that time. In my view, the requirements of s 50(1) have not been established. Furthermore, if it were, it does not justify Cons Budin’s overreaction to the plaintiff’s use of offensive language, his immediate decision to arrest a person he believed to be underage. At that time, Cons Budin had not formed the view that the plaintiff was intoxicated, so the events would have occurred even if the plaintiff had not been intoxicated. In other words, section 50(2) was engaged, as was subsection (3). In any event, contributory negligence is not a defence to an intentional tort.

Damages

(a) Assault and Battery

119. The plaintiff claims:

compensatory damages:         $50,000

aggravated compensatory damages:   part of $20,000 (which sum is claimed for these torts and false imprisonment)

exemplary damages:   part of $25,000 (which sum is claimed for these torts and false imprisonment)

See Plaintiff’s Schedule of Damages, part of MFI 13.

120. These torts are actionable per se, without proof of actual damage, “it is the ‘mere trespass’ which is the harm”: Battiato v Lagana [1992] 2 Qd R 234. The plaintiff is able to recover damages for insult, indignity, disgrace or humiliation if the torts were committed in circumstances that were humiliating or insulting. Compensatory damages are also available for the injured feelings of the plaintiff. In the Schedule of Damages, I am referred to the particulars of loss and damage regarding these torts as pleaded in par 17 of the Statement of Claim. However, particulars (iii) to (ix) are allegations of personal injury e.g. pain and discomfort, a chipped tooth, bruising and abrasions, but no claim for personal injury was advanced at the hearing. It is clear, however, that Cons Budin took hold of the plaintiff, swung him around, swept his legs from underneath him causing the plaintiff, and Cons Budin, to fall onto the footpath where the plaintiff was turned to lie on his stomach and thus, according to the evidence of Cons Budin and Maracic, despite the plaintiff’s resistance, his arms were placed behind his back and he was handcuffed. The plaintiff was then assisted to his feet, frisked searched and taken to BL 16 into which he was placed, despite his resistance. At the time the plaintiff was 17 years and 8 months old, to use the language of the civil law, “a minor” or, to use the language of the criminal law, “a child” or “young person”. He was petit. He was being manhandled by a mature man, a constable of police. This occurred in a public place, but the only persons nearby were his friends and police officers. His friends were Kane Pembroke, Lexie Baldock and Zachary Baldock. Zachary Baldock was also arrested and conveyed with the plaintiff in BL 16 to Springwood Police Station. Kane Pembroke decamped but later went to Springwood Police Station to check on the welfare of his friends but was then himself arrested. The persons most likely to have observed these indignities being experienced by the plaintiff was Ms Lexie Baldock and police officers. This was not, e.g., an arrest gone wrong outside a person’s house with all his neighbours standing by, watching. This was, however, a new and unexpected experience for the plaintiff, the antithesis of a pleasant experience. The plaintiff was asked in chief how he felt at the time he was forced into BL 16. He said, “Humiliated, embarrassed, scared” (T23.45). I allow $15,000 for compensatory damages.

121. In Lamb v Cotogno (1987) 164 CLR 1 at 8, the Court (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ) said:

“Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like.”

In New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638, the Court (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ) said at [31]:

“Aggravated damages are a form of general damages given by way of compensation for injury to the plaintiff which may be intangible.”

See also State of New South Wales v Zreika [2012] NSWCA 37 at [60] per Sackville AJA (with whom Macfarlan and Whealy JJA agreed). I have allowed for injury to the plaintiff’s feelings and other intangible losses in the award I have already made. There is no call for aggravated damages for this head, in this case. Traditionally, aggravated compensatory damages were awarded where the compensatory damages were for personal injury.

122. In Lamb v Cotogno (supra), the judgment continued:

“Exemplary damages, on the other hand, go beyond compensation and are awarded ‘as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself’: Wilkes v Wood …, per Pratt LCJ.”

In New South Wales v Ibbett (supra) the Court said of exemplary damages:

“33. In Uren v John Fairfax & Sons Pty Ltd, Taylor J, after observing that aggravated damages fix upon the circumstances and manner of the wrongdoing of the defendant, contrasted the function of exemplary damages as punishment and deterrent of the wrongdoer. His Honour added that:

"in many cases, the same set of circumstances might well justify either an award of exemplary or aggravated damages".

Subsequently, in Lamb v Cotogno, in the joint reasons of five members of the Court, the conceptual distinction was drawn between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages. Their Honours added that in some cases it might be difficult to differentiate between aggravated damages and exemplary damages. Gleeson CJ, McHugh, Gummow and Hayne JJ spoke in like terms in Gray v Motor Accident Commission.

34. In the present case, awards were made under both heads. However, Spigelman CJ was alive to the conceptual distinctions involved, as appears in the following passage:

"In this regard it is relevant to note that the matters to which I have referred as justifying an award of exemplary damages are also pertinent, as is often the case, to an award of aggravated damages. The difference is that in the case of aggravated damages the assessment is made from the point of view of the Plaintiff and in the case of exemplary damages the focus is on the conduct of the Defendant. Nevertheless, it is necessary, as I have noted above, to determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation."”

In State of New South Wales v Zreika (supra) Sackville AJA said:

“61. Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect "detestation" for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno, at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights": Gray v MAC, at 7 [14].

62. Exemplary damages may be awarded against the State in respect of the conduct of police officers for whose torts the State is responsible: NSW v Ibbett; NSW v Landini, at [114]. The assessment of exemplary damages in a case of conscious and contumelious disregard of the plaintiff's rights by the police:

"should indicate ... that the conduct of the [police] was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses ... do not happen."

Ibbett, at 653 [51], citing Adams v Kennedy (2000) 49 NSWLR 78, at 87, per Priestley JA.

63. In a frequently cited passage, Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448, at 471, observed that the considerations that enter into the assessment of compensatory damages are quite different from those that govern the assessment of exemplary damages and that there is no necessary proportionality between the assessment of the two categories. Nonetheless, in NSW v Ibbett, at 647 [34], the plurality endorsed the proposition that it is necessary to determine both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation. Their Honours also said (at [35]) that where the same circumstances increase the hurt to the plaintiff and also make it desirable for the Court to mark its disapprobation of the conduct, a single sum may be awarded. Such an award would represent both heads of damage and ensure that no element is compensated more than once.

64. I endeavoured to summarise the effect of the authorities in New South Wales v Radford [2010] NSWCA 276, at [97], as follows (Beazley and Macfarlan JJA agreeing):

"These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages for injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award."”

123. Cons Budin ought not to have arrested the plaintiff. His assault and battery of the plaintiff followed upon his decision to arrest the plaintiff. The Court must decry such behaviour towards a minor. Cons Budin, indeed all members of the Police Force, must be extremely careful when dealing with minors. They must be deterred from acting as Cons Budin acted: precipitately and out of self-interest. I allow $10,000 for exemplary damages.

(b) False Imprisonment

124. The plaintiff claims:

compensatory damages:          $30,000

aggravated compensatory damages:   part of $20,000 (see [119] above)

exemplary damages:         part of $25,000 (see [119] above)

125. It must always be borne in mind that the highest penalty known to modern Australian law is the deprivation of liberty: imprisonment. False imprisonment is the unlawful deprivation of liberty. The common law has zealously guarded the liberty of the subject and the unlawful deprivation of that liberty must be adequately compensated. The plaintiff must be compensated for the period in which he was detained: 10.37 pm on 16 April 2014 to 2.30 am on 17 April 2014, a few minutes short of 4 hours. However, the length of the incarceration is not the only consideration. In Zaravinos v State of New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58; (2004) 151 A Crim R 24, Bryson JA (with whom Santow JA and Adams J agreed) said at [52]:

“It is reasonably arguable that his Honour should have treated the time in involuntary custody as in the order of three and a half hours not two and three-quarter hours, but the difference could have little effect on the outcome and is not an appropriate subject for leave to appeal. Damages are not capable of being related proportionately to the length of the period of detention, and “a substantial proportion of the ultimate award must be given for what has been described as ‘the initial shock of being arrested’”. – Ruddock v. Taylor [2003] NSWCA 262 Spigelman CJ at 49. That substantial proportion of the ultimate award of damages could not vary according to whether the detention was for about two and three-quarter hours or for about three and a half hours.”

In addition, damages for the hurt to the plaintiff’s feelings such as indignity, mental anguish, disgrace or humiliation suffered as a result of the false imprisonment are to be taken into account.

126. These are some portions of the plaintiff’s evidence:

(i) “Q. How did you feel when you were in the back of the caged vehicle?

A. Terrified. I was upset. I was shocked. Very traumatic.” (T25.21)

(ii) “Q. And was that an officer in uniform who put you into the dock?

A. I can't say for sure.

Q. Were you told by anyone what was going to happen to you?

A. The only point I remember is the officer that hurt me came in and said, "We've got your weapon," with the two people that he was with when it happened, kind of like jokingly amongst themselves and like I was really confused at that point because I had no idea what he was talking about.

HIS HONOUR

Q. Sorry, what did he say?

A. He said, "We've got your weapon."

Q. "We've got your weapon."

A. Yeah. Later I learned that he was referring to my skateboard, but at the time I had no idea and I was completely like freaking out and I –” (T26.40)

(iii) “Q. Near the dock that you were in do you remember there being a desk with a police officer behind it?

A. Yeah, at times.

Q. Do you remember if you made the request of that particular officer?

A. Yeah. I remember asking him. When the officer that did it was in the room, I remember asking, "Do you have like a bag I can put this chipped tooth into", and then he replied, I think it was Officer Budin, with, "I'm not your drug dealing mates", which was

Q. How did that make you feel?

A. Offended and embarrassed. I - confused.” (T27.33)

(iv) “Q. Do you remember what time it was when you were given documents?

A. I think it was roughly 2.30.

Q. Do you remember what documents you were given?

A. Yes. Just - I remember that - seeing that they had charged me with two charges, and then two

Q. Do you remember what the charges were?

A. Yes. They were assault on an officer, and resist arrest.

Q. Just pausing there, when you read those charges, how did you feel?

A. Terrified, and confused. Yes, really - I kind of thought my life was sort of over.

Q. What about the other two charges? Do you remember those?

A. I got - I was not listening to a move along warning, and the other one was swearing in a public place.

Q. When you were given these documents, were you still inside the dock, or not?

A. I can't remember.” (T33.44)

127. It must also be borne in mind that the plaintiff was detained at a police station, a place of adult custody, when, as a “child”, he ought not to have been arrested, but to have been charged by CAN. I allow $30,000 for compensatory damages. In making that assessment, I have taken into account the plaintiff’s feelings and other intangibles. There is no need to award further compensatory damages. The conditions of the plaintiff’s incarceration were what one would normally expect at a police station. Having awarded exemplary damages for the arrest, to award exemplary damages for the consequent incarceration would, in my view, serve no further purpose and I decline to award such damages.

(c) Malicious Prosecution

128. The plaintiff claims:

compensatory damages:         $25,000

aggravated compensatory damages:   $25,000

exemplary damages:         $25,000

129. Malicious prosecution is an action in case rather than in trespass and so the plaintiff must prove damage. It is not actionable per se. The types of damage that may be recovered include economic loss, e.g. legal costs incurred in defending the prosecution; lost income from the need to take time off work to attend upon one’s lawyers or the courts; necessary travelling expenses for those purposes. The damages include:

1. loss of or damage to reputation: see State of New South Wales v Landini [2010] NSWCA 157 at [40], [102];

2. the conditional loss of liberty by reason of one’s liberty being curtailed by being on bail: ibid at [42], [104];

3. “mental distress and agitation” which includes anxiety and depression: ibid at [43], [105]-[110]; and which would also include “the stress and uncertainty” experienced while proceedings were pending, whilst awaiting the court’s decision.

130. The plaintiff was handed CANs at Springwood Police Station prior to his discharge from custody on 17 April 2014. Proceedings in the Children’s Court were not concluded until 5 December 2014, a period of some 7 and a half months. The plaintiff was released on conditional bail:

“1. That the accused will not be at any time intoxicated in a public place.

2. That the accused be of good behaviour at all times.

3. That the accused notifies the Officer in charge, Springwood Police Station, in the event he changes addresses within 24 hours.” (Part of exhibit 2)

He had to attend court on two days for the trial of the charges, 10 October and 5 December 2014, and probably also when the CANs were first returnable on 16 June 2014. The venue of the prosecution was Parramatta, when a more convenient venue might be Penrith or Katoomba. Whilst the plaintiff was legally represented, no claim is made for legal costs, nor is there any other claim for economic loss.

131. The plaintiff gave no evidence of a loss of reputation or standing in the community. After arriving at the home of Ms Amanda Webb and Zachary Baldock after his release from custody, the plaintiff said this occurred:

“Q. What did you do when you got to Zach's place?

A. We just talked about it all, and I was freaking out. I read over the documents, and tried to sleep.

Q. There were a number of court attendance notices that specified you had to attend the Children's Court.

A. Yes.

Q. How did that make you feel?

A. Scared. I was pretty traumatised from the whole thing, and just really - just confused.

Q. Did you sleep at all that morning when you were at Zach's place?

A. I wouldn't say it was - it was pretty weird. I was kind of just thinking about the whole events of the night, and they were kind of flashing through my mind.”

As to the proceedings in the Children’s Court, the plaintiff gave this evidence:

“Q. How did you feel in the morning before the proceedings commenced?

A. I was pretty scared. I kind of had just been trying not to think about it. But it was pretty prominent. It was pretty there.

Q. You had a barrister representing you?

A. Yes.

Q. On 10 October a number of police officers gave evidence, and you were in Court to listen to their evidence?

A. Yes.

Q. How did you feel at that time when you were listening to their evidence?

A. Really confused and scared. I felt like I was being, like, I don't know, like set up. It was - yes. It was pretty scary.

Q. Your hearing was stood over from 10 October 2014 to 5 December 2014. Do you remember that day?

HIS HONOUR: 5 December, did you say?

CANCERI: December, yes. 5 December 2014.

Q. That was the final day of the hearing. How did you feel leading up to that point in time? That is between 10 October 2014, and 5 December 2014?

A. Very unsure about what was going to happen, because it was three policemen's word against mine, and I was scared.”

Although it was not highlighted in evidence, one must consider the anxiety that any person in the plaintiff’s position would have been under from the time he was handed the CANs to the time that the Children’s Court Magistrate announced his findings. By “anxiety” I do not mean pathological anxiety but normal human concern, disquiet and apprehension.

132. Bearing in mind all those considerations, I believe the proper sum to award the plaintiff is $30,000, including matters which are open taken into account in awarding aggravated damages. The plaintiff’s entire claim for compensatory damages is, after all, $50,000.

133. There remains the issue of exemplary damages for this tort. Such damages should be awarded. Cons Budin could have decided in Springwood Police Station not to prosecute the plaintiff for anything other than using offensive language. He did not. If he had bothered to identify the elements of the charge under Summary Offences Act 1988 section 9(1) he would have known that he could not lay such a charge. He could have reflected on the other two charges and considered whether, when he acted precipitately to arrest the plaintiff, he was entitled to do so. When he was advised that the plaintiff had pleaded “not guilty” to the charges, he could have considered whether to persist with them. He did not. His reaction was to send an email (exhibit H) to Cons Fulton, Mammen, Doyle and Maracic which commences:

“Hey hey all

our incident from glenbrook has gone not guilty (winner). You have any unavailable dates let me know VIA email …”

In cross-examination the Constable was extremely coy in explaining why he described the plaintiff as a “winner” (T338). He, as prosecutor, persisted with three charges which were bound to fail. All litigation is burdensome – for each party and for the court which must decide it: the criminal courts of this State have been heavily burdened for years. Persisting with charges which are bound to fail must be discouraged. I award $15,000 by way of exemplary damages.

(d) Interest

134. For assault and battery I have allowed $25,000 and for false imprisonment $30,000. Interest should run on the total of those sums ($55,000) from 17 April 2014 to 3 August 2018. Interest should run pursuant to Civil Procedure Act 2005 s 100.

Period	Rate	Years	Amount
17-04-14 to 30-06-15	6.50%	1.2	$4,290
01-07-15 to 30-06-16	6.00%	1.0	$3,300
01-07-16 to 31-12-16	5.75%	0.5	$1,581
01-01-17 to 03-08-18	5.50%	1.6	$4,840
Total $14,011

135. For malicious prosecution I have allowed $45,000. Arbitrarily, I allow interest on that sum from 1 October 2014 to 3 August 2018.

Period	Rate	Years	Amount
01-10-14 to 30-06-15	6.50%	0.75	$2,194
01-07-15 to 30-06-16	6.00%	1.0	$2,700
01-07-16 to 31-12-16	5.75%	0.5	$1,294
01-01-17 to 03-08-18	5.50%	1.6	$3,960
Total $10,148

(e) Summary/Total

Assault and Battery:	Compensatory Damages	$15,000
Exemplary Damages	$10,000
False Imprisonment:	Compensatory Damages	$30,000
Interest on above sums:	$14,011
Malicious Prosecution	Compensatory Damages	$30,000
Exemplary Damages	$15,000
Interest on last two sums:	$10,148
Total:	$124,159

Orders

137. (1) I give verdict and judgment for the plaintiff against the defendant for $124,159.

(2) Subject to any application made to me at the time of the delivery of these reasons, I order the defendant to pay the plaintiff’s costs.

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Decision last updated: 03 August 2018