Glavinic v Commonwealth
[2023] ACTSC 361
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Glavinic v Commonwealth |
Citation: | [2023] ACTSC 361 |
Hearing Dates: | 26 June – 30 June, 3 July – 7 July, 10 July, 12 July 2023 |
Last submissions: | 16 November 2023 |
Decision Date: | 1 December 2023 |
Before: | Mossop J |
Decision: | See [411]-[413]. |
Catchwords: | TORTS – TRESPASS, BATTERY AND WRONGFUL IMPRISONMENT – Police forced entry into residence – plaintiff arrested for obstructing police – where plaintiff resisted arrest and violent melee occurred – plaintiff injured during course of struggle – no unreasonable use of force – actions of police rendered tortious due to unlawful entry onto premises POLICE POWERS – ENTRY – Police forced entry into residence while responding to report of suspected family violence – police claimed to be exercising powers of emergency entry – consideration of ss 188 and 190 of the Crimes Act 1900 (ACT) –whether there were reasonable grounds for belief held by police – reasonable grounds for belief not established – entry unlawful CIVIL PRACTICE AND PROCEDURE – LIMITATION PERIODS – Limitation period of six months under s 435 of the Crimes Act 1900 (ACT) – whether entry done, or reasonably supposed to have been done, under the Act – meaning of “reasonably supposed to have been done” – s 435 requires subjective enquiry into what person supposed they were doing and objective qualification of reasonableness of the supposition – must accommodate circumstances of mistake of fact or law in the purported exercise of statutory powers – police believed they were acting lawfully – defence applies – judgment for defendants POLICE POWERS – ARREST – Reasonable force – ss 212 and 222 of the Crimes Act 1900 (ACT) – plaintiff claims police used excessive force during violent melee – police exercised a degree of restraint consistent with training – use of force not unreasonable TORTS – NERVOUS SHOCK – whether s 36 of the Civil Law (Wrongs) Act 2002 (ACT) applies to Commonwealth officers in proceedings in the ACT Supreme Court – not appropriate to determine basis upon which it applies where parties agree that it does and no proper contradictor for Commonwealth submissions |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A Australian Federal Police Act 1979 (Cth), ss 9(1)(b), 64B Borough of Balmain Electric Lighting Act 1906 (NSW), s 38 Borough of Newcastle Electric Lighting Act 1892 (NSW), s 33 Borough of Redfern Electric Lighting Act 1895 (NSW), s 32 Civil Law (Wrongs) Act 2002 (ACT), s 36 Court Procedures Rules 2006 (ACT) Crimes Act 1900 (ACT), ss 188, 189, 190, 212, 221, 222, 435 Crimes Act 1900 (NSW), s 563 Crimes (Amendment) Ordinance 1987 (ACT) Criminal Code 2002 (ACT), s 361 Criminal Law Amendment Act 1883 (NSW), s 450 Domestic Violence Ordinance 1986 (ACT), ss 349A, 349B, 349C Domestic Violence (Miscellaneous Amendments) Ordinance 1986 (ACT) Human Rights Act 2004 (ACT), s 18(7) Limitation Act 1985 (ACT), ss 4, 30, 36 Judiciary Act 1903 (Cth), s 64 Justices Protection Act 1848 (UK), 11-12 Vict., c 44, ss 8-12 Metropolitan Police Act 1829 (UK) Municipal Council of Sydney Electric Lighting Act 1896 (NSW), s 38 Notice of Action and other Privileges Abolition Act 1977 (NSW) |
Cases Cited: | Beechey v Sides (1829) 9 B & C 806; 109 ER 300 Bresatz v Przibilla (1962) 108 CLR 541 Cann v Clipperton (1839) 10 A & E 582; 113 ER 221 Chamberlain v King (1871) LR 6 CP 474 Collector of Customs (NSW) v Brian Lawler Automotive Pty Ltd (1979) 41 FLR 338 Cook v Leonard (1827) 6 B & C 351; 108 ER 481 Donaldson v Broomby (1981) 54 FLR 66 Donaldson v Broomby (1982) 60 FLR 124 Duncan v Theodore (1917) 23 CLR 510 G Scammell & Nephew Ltd v Hurley [1929] 1 KB 419 George v Rocket (1990) 170 CLR 104 Grincelis v House [2000] 201 CLR 321 Hamilton v Halesworth (1937) 58 CLR 369 Hazelton v Potter (1907) 5 CLR 445 Hermann v Seneschal (1862) 13 CBNS 392; 143 ER 156 Hussein v Chong Fook Kam [1970] AC 942 Innes v Weate [1984] Tas R 14 Kuru v New South Wales [2008] HCA 26; 236 CLR 1 Lamb v Cotogno (1987) 164 CLR 1 Lavin v Albert [1982] AC 546 Little v The Commonwealth (1947) 75 CLR 94 Maleverer v Spinke (1538) 1 Dyer 35B; 73 ER 79 NSW v Ibbett [2006] HCA 57; 229 CLR 638 Plenty v Dillon (1991) 171 CLR 635 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 R v Howell [1982] 1 QB 416 R v Johnson [2018] ACTSC 242 R v McCarthy [2015] SASC 11 Roberts v Orchard (1863) 2 H & C 769; 159 ER 318 Sharman v Evans (1977) 138 CLR 563 Spooner v Juddow (1850) 6 Moo PC 257; 13 ER 682 Spooner v Juddow (1850) 4 Moo Ind App 353; 18 ER 734 State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 Surfling v Nurse (1846) 11 JP 279 Theobald v Crichmore (1818) 1 B & Ald 227; 106 ER 83 Thomas v Sawkins [1935] 2 KB 249 Todd v O’Sullivan (1985) 122 LSJS 403 Western Australia v Ward [2002] HCA 28; 213 CLR 1 Wilkinson v Downtown [1897] 2 QB 57 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 |
Texts Cited: | Halsbury’s Laws of England (2nd ed, vol 26) New South Wales Law Reform Commission, Consolidation of the Criminal Law, first Report from the Commissioners Appointed to Inquire into Law Reform; together with, Draft Bill (Government Printer, 1871) Alfred Stephen and Alexander Oliver, Criminal Law Manual: comprising the Criminal Law Amendment Act of 1883 (Government Printer, 1883) New South Wales Law Reform Commission, Third Report on the Limitation of Actions: Special Protections (Report No 21,1975) A Goodhart, ‘Thomas v Sawkins: A Constitutional Innovation’ (1936) 6 Cambridge Law Journal 22 J Spigelman, ‘The Principle of Open Justice: a Comparative Perspective’ (2006) 29 UNSWLJ 147 |
Parties: | Justin Glavinic ( Plaintiff in SC 283 of 2021) Carol Glavinic ( Plaintiff in SC 285 of 2021) Heather Williams ( Plaintiff in SC 286 of 2021) Commonwealth of Australia ( 1st Defendant) Simon Hill ( 2nd Defendant) David Edwards ( 3rd Defendant) Alexander Tutt ( 4th Defendant) Caleb Boxx ( 5th Defendant) |
Representation: | Counsel B Kelleher SC with J Tyler-Stott and L Beange ( Plaintiffs) M Fordham SC with K Musgrove and N Oram ( Defendants) |
| Solicitors Ken Cush & Associates ( Plaintiffs) Ashurst ( Defendants) | |
File Numbers: | SC 283 of 2021 SC 285 of 2021 SC 286 of 2021 |
MOSSOP J:
Introduction
1․Three plaintiffs have claimed damages arising from an alleged unlawful entry by police into their home. Police attended in response to radio messages which indicated the possibility of a domestic violence incident in progress. When police were not permitted to enter the property, they forced entry, allegedly pursuant to their emergency entry powers in s 190 of the Crimes Act 1900 (ACT). There was then a very significant altercation between the police and one of the plaintiffs. This is alleged to have involved a battery and unlawful imprisonment. The two other plaintiffs are alleged to have suffered a recognisable psychiatric illnesses as a result of observing the altercation.
2․For the reasons which follow, I have reached the conclusion that the plaintiffs’ claims are statute-barred by s 435 of the Crimes Act, which imposes a six-month limitation period for actions brought against a person for anything reasonably supposed to have been done under the Crimes Act. Because of that, judgment will be entered for the defendants in the proceedings. In case I am wrong about the operation of s 435, I have proceeded to consider the substance of the claims and made a contingent assessment of damages in relation to each of the plaintiffs.
People involved in this case
3․The plaintiffs are:
(a)Justin Glavinic (Mr Glavinic);
(b)Heather Williams (Ms Williams); and
(c)Carol Glavinic (Mrs Glavinic).
4․The first defendant is the Commonwealth. The other four defendants are the individual police officers who were involved in the incident. The police officers are identified by reference to their ranks at the time of the events in question:
(a)Constable Simon Hill;
(b)First Constable David Edwards;
(c)Constable Alexander Tutt; and
(d)Senior Constable Caleb Boxx.
The pleaded claims
5․Each of the plaintiffs pleaded several causes of action.
Justin Glavinic
6․Mr Glavinic pleads:
(a)that the police officers had no lawful justification for entering the residence and that the conduct of First Constable Edwards, assisted by Senior Constable Boxx, in unlawfully forcing entry into the residence, followed by the other police officers, amounted to a trespass;
(b)that the actions of the police officers in pushing Mr Glavinic out of the way to force entry, taking hold of him, forcing him to the tiled floor, deploying Oleoresin Capsicum spray (OC spray) to his face, striking him with a baton and on the back of his head, deploying a Taser towards him, kicking him in the face, forcing his face to the tiled floor, placing him in a spit hood, forcing his right arm over his back and placing him in handcuffs amounted to an unlawful battery of the plaintiff because either:
(i)the police officers had no lawful justification for applying any physical force to the plaintiff; or
(ii)any physical force applied was unreasonable and disproportionate; and
(c)that the police officers had falsely imprisoned or unlawfully detained the plaintiff because there was no lawful justification for his arrest, detention or deprivation of liberty.
7․There were claims of breaches of Mr Glavinic’s rights under the Human Rights Act 2004 (ACT) and a claim for compensation under s 18(7) of that Act. In final submissions, counsel for the plaintiffs did not press these claims. It is not necessary to say anything more about them.
8․Mr Glavinic claims damages, aggravated damages and exemplary damages as well as interest and costs.
9․The Commonwealth is said to be liable for the actions of the police officers pursuant to s 64B of the Australian Federal Police Act 1979 (Cth) (AFP Act). The Commonwealth is also said to be vicariously liable for the actions of the officers.
Carol Glavinic
10․Mrs Glavinic pleads:
(a)that the conduct of First Constable Edwards in wedging his foot in the door to prevent it from closing and unlawfully forcing entry into the residence, assisted by Senior Constable Boxx who pushed Mr Glavinic out of the way, followed by the other police officers, constituted a trespass; and
(b)that the actions of the police in wedging a foot into the door, pushing Mr Glavinic out of the way, forcing entry into the residence, taking hold of Mr Glavinic, forcing him to the tiled floor, deploying OC spray to his face, striking him with a baton and on the back of his head, deploying a Taser towards him, kicking him in the head, forcing his face to the tiled floor, placing a spit hood over his head, handcuffing him and directing ACT Ambulance Services to administer a tranquilising medication “caused the plaintiff to suffer nervous shock” as the actions occurred in her presence, within her sight and hearing.
11․The Commonwealth is alleged to be liable for the actions of the police officers pursuant to s 64B of the AFP Act. Alternatively, the Commonwealth is said to be vicariously liable for the actions of the officers.
12․Mrs Glavinic claims damages, aggravated damages and exemplary damages as well as interest and costs.
Heather Williams
13․Ms Williams pleads:
(a)that the police officers had no lawful justification for entering the residence and that the forcing of entry by police into the house constituted a trespass; and
(b)that the conduct of police in forcing Mr Glavinic face down onto the floor, deploying OC spray to his face, striking him on the back with a baton, striking the back of his head, deploying a Taser towards him, kicking him in the head, forcing his face to the tiled floor, placing a spit hood over his head, handcuffing him, directing ACT Ambulance Services to administer a tranquilising medication, charging him with seven criminal offences and attending the ACT Magistrates Court to give evidence against him “caused the plaintiff to suffer nervous shock” as the actions occurred in her presence, within her sight and hearing.
14․The Commonwealth is said to be liable for the actions of the police officers pursuant to s 64B of the AFP Act. Alternatively, the Commonwealth is said to be vicariously liable for the actions of the officers.
15․Ms Williams claims damages, aggravated damages and exemplary damages as well as interest and costs.
The Defences
16․The Defences filed on behalf of the defendants allege that the police officers were entitled to enter the premises under ss 188 and 190 of the Crimes Act and under the general law. They assert that the use of force against Mr Glavinic was lawful as it was necessary and reasonable for the police officers exercising their functions under the AFP Act and the Crimes Act, as well as under the common law. They assert that Mr Glavinic’s arrest was lawful under ss 212, 222 of the Crimes Act and under the general law. Finally, they assert that each action is not maintainable because it is brought outside the limitation period set by s 435 of the Crimes Act and the plaintiffs did not comply with the notice requirements in that section.
Witnesses who gave evidence
17․The following lay witnesses gave evidence at the trial:
(a)each of the plaintiffs;
(b)each of the police officer defendants;
(c)Jeffrey McConnell, the neighbour who made the original reports to police (called by the defendants);
(d)Kristi Swan, now a doctor, but at the time of the relevant incident, one of the ambulance officers who attended the premises (called by the defendants);
(e)Rebecca Williams, a Senior Constable from Gungahlin police station who attended the scene (called by the defendants);
(f)Kara Chapman, who was present on the evening of the incident and Acting Sergeant from Gungahlin police station (called by the defendants);
18․A number of expert witnesses were also called. Dr Antonella Ventura (called by the defendants) and Dr Malcolm Foxcroft (called by the plaintiffs) gave concurrent evidence about Mr Glavinic’s mental health. Dr Ventura gave some additional evidence about the circumstances surrounding her second consultation with Mr Glavinic. Dr Patricia Jungfer gave evidence as to the mental health of Mrs Glavinic and Ms Williams.
19․A number of expert reports prepared for the purposes of the proceedings were tendered without the need for the witnesses to give oral evidence or be cross-examined. Those included the reports of Dr Jan Tomlinson and Dr Mark Ridalgh, orthopaedic surgeons whose evidence related to Mr Glavinic’s shoulder injuries.
What happened?
20․It is convenient to first give an overview of the events, as substantial portions of the narrative are uncontroversial. Within the framework of those events, it will then be necessary to address a number of significant factual allegations made by the plaintiffs which were contested by the defendants.
The 2017 incident
21․In 2017, there was an incident involving Mr Glavinic during which he was tasered, subject to OC spray and forcibly arrested by police. Following that incident, he became increasingly paranoid about police. He suspected that his phone was being tapped by the police.
The tenancy
22․Mr Glavinic and Ms Williams were the lessees of the premises in Miljanovic Street, Forde, pursuant to a lease which commenced on 5 July 2018.
First complaint
23․At 2:01am on 14 July 2018, a neighbour from an adjoining street (Mr McConnell) rang the police enquiry line (131 444) to report a “domestic disturbance”. He said:
Somebody else may well have reported it already. They’re very, very – they have been very, very loud, and it’s sort of that, um, like uncontrolled screaming at one another.
24․He described it as “an argument” and “that sort of guttural screaming”. He said:
It’s, um, we have experience with mental health problems in our family, and it sounds like one of them may well, you know, like, just totally lost it.
25․He did not know the address, but he thought it was somewhere around 8 or 10 Miljanovic Street.
First radio message
26․At 2:05am, the Australian Federal Police (AFP) central dispatch unit (referred to as “One AFP”) sent a radio message to police mobile units:
One AFP: Thanks, Gungahlin four two, I’ve got job details of a disturbance in Forde. Further details when you’re ready.
Gungahlin 42: Send.
One AFP: Thanks, four two. Location is Miljanovic Street in Forde. That one’s Mike India Lima Juliet Alpha November Oscar Victor India Charlie Street in Forde. Either number eight or ten. Complainant states it sounds like someone is having a mental health episode. I’ve got here one yell – one person yelling at the top of their lungs. Apparently it’s been ongoing for some time. POI starts up then goes quiet.
Second complaint
27․At 2:06am, the same neighbour rang police again. He said that “they’re really going again” and “the woman was calling out, ‘Don’t touch me, don’t touch me,’ in a fairly scared voice”.
28․He was asked some further questions by the operator and said:
And she – I can hear her crying and – ah, I have a feeling she might have been locked – sounds like she might be locked out or something. Or she might be outside. I can’t see her, though.
…
Yeah, I can hear her crying, I think, in their al fresco area around the back.
29․The operator said that police were on their way.
Second radio message
30․At 2:07am there was a further radio transmission that said:
One AFP to those Gungahlin units. Complainant’s called back and say that they can hear a lady yelling, “Don’t touch me,” and crying. She believes it’s the house directly behind number ten Jessie Street in Forde.
Police arrive at the address
31․Constables Edwards and Hill were the first police officers to arrive. They reported arriving in the street at around 2:11am. First Constable Edwards identified the house, knocked on the door and observed a male (Mr Glavinic) approach. Mr Glavinic opened the door slightly. There was some difference in the evidence as to precisely how far he opened the door. There was a brief conversation. First Constable Edwards told Mr Glavinic that police had received reports of a disturbance at the location and they had come to make sure that everyone was okay. Mr Glavinic said that it was just him and his mother at home and that everything was fine.
32․Mr Glavinic then closed the door and moved from the entry area to the kitchen.
Mr Glavinic calls police
33․After he had left the front door, at 2:14am, Mr Glavinic made a telephone call to police. In that call, which lasted 48 seconds, he said:
My name’s Justin. Um, we had a bit of violence tonight from my girlfriend. She got, um, on Coke and a bit of M. She’s gone a bit crazy.
…
Yeah, yeah. She’s lost it.
…
She was getting aggressive. Like, kicking the door down, um, she made me bleed. I got blood all over me so.
34․At the point where he was starting to give his address he disconnected the phone.
35․There is no evidence that the police who attended the scene were aware at the time of the contents of this call.
36․First Constable Edwards was knocking hard on the door and calling out for Mr Glavinic to come back to the front door.
Return to the front door
37․Mr Glavinic then returned to the front door with his mother, Carol Glavinic. He opened the door and had a further conversation with First Constable Edwards. First Constable Edwards could see that Mrs Glavinic was there.
38․First Constable Edwards put his foot into the open door so as to stop it being closed. First Constable Edwards decided to exercise the emergency powers of entry and pushed the door open. Mr Glavinic resisted the opening of the door and the entry of police.
The melee
39․There was then a melee during which the police officers attempted to restrain Mr Glavinic and Mr Glavinic violently resisted. That melee included:
(a)First Constable Edwards using a “seatbelt takedown” manoeuvre to get Mr Glavinic from a standing position onto the ground;
(b)police officers attempting to restrain Mr Glavinic’s arms and legs;
(c)Mr Glavinic biting the upper thigh of Constable Tutt;
(d)Mr Glavinic being sprayed with OC spray on two occasions;
(e)a Taser being deployed; and
(f)handcuffs being applied to Mr Glavinic’s left wrist and then subsequently to his right wrist.
40․There is substantial dispute as to some aspects of the melee. Mr Glavinic’s evidence was to the effect that the conduct of the officers went substantially beyond what was necessary to restrain him and included unwarranted acts of violence. Those included:
(a)punching and kicking him gratuitously;
(b)striking the back of his head with a baton;
(c)deploying OC spray for longer than appropriate; and
(d)banging his head against the ground.
Radio call by Senior Constable Boxx
41․At just after 2:17am, in the midst of the melee, Senior Constable Boxx of Gungahlin 43 made a radio call to One AFP seeking urgent assistance and saying “we have one highly hostile male. He’s still resisting. He’s assaulted several officers. Need additional members, it is urgent”.
42․Other police reported that they were responding.
43․When the other officers arrived, they assisted in restraining Mr Glavinic who continued to violently resist. There is a dispute as to whether he was resisting at the time when First Constable Edwards successfully applied a Taser to him.
Radio call by Acting Sergeant Chapman
44․Subsequently at about 2:26am, Acting Sergeant Chapman from Gungahlin 40 reported, “We have a highly irate male. He has been restrained with handcuffs, however he’s unmoveable at this stage. We may need ACTAS assistance – or please, if we can get ACTAS assistance to help sedate this male.”
45․One AFP indicated that it was on the phone to the ACT Ambulance Service (ACTAS).
ACT Ambulance Service arrives
46․An ambulance was called at 2:28am. It arrived at the scene at 2:45am and was with Mr Glavinic at 2:46am. The ambulance officer, Kristi Swan, recorded:
… [Patient] very aggressive towards police, has assaulted them with punching, [spitting] and biting. Currently in AFP custody & they have placed under EA. Required 6-8 police & multiple handcuffs to restrain him. Self inflicted facial swelling from smashing face against ground. AFP have used 1 x taser drive stun, 2 x doses of pepper spray to face, several baton strikes on [patients] back & arms which were ineffective, & applied spit face shield to him. …
47․Ms Swan gave evidence that, of the matters recorded in her note, she had personally observed:
(a)the patient hitting his face against the ground;
(b)six to eight officers restraining the patient; and
(c)that the patient remained combative to the extent to which she was unable to conduct a full examination until he was sedated.
48․Ms Swan administered intramuscular ketamine to sedate him. She did so based upon her medical judgment and that of her fellow paramedic and not at the direction of the police.
49․At 3:13am, Mr Glavinic was transported by ambulance to the Canberra Hospital where he arrived at 3:36am.
Canberra Hospital
50․The records from the Canberra Hospital indicated that Mr Glavinic remained sedated and intubated in order to control his behaviour and allow him to be properly assessed. He had bruises on his face. He was extubated on the morning of 15 July 2018. He later became agitated again and he was sedated on the evening of 15 July 2018. On the evening of 16 July 2018, he was discharged to a ward following a bedside hearing by a magistrate. He was, however, readmitted to the Intensive Care Unit (ICU) shortly afterwards with worsening renal function. He was given dialysis there. He was transferred again to a ward on 18 July 2018. He remained there until 26 July 2018, when he was discharged from hospital and transferred to the Alexander Maconochie Centre. On 4 August 2018, he was released on bail.
Evidence of the principal witnesses
51․What occurred upon police arriving at the house and during the melee is significant for the purposes of determining whether the actions of the police officers involved a trespass on the premises, whether they used unreasonable force to detain Mr Glavinic and whether the arrest was lawful. The evidence as to what occurred is also significant for the purposes of assessing the credibility of the various witnesses. So far as police witnesses are concerned, their credibility is significant when assessing the evidence as to their states of mind at the point of entry and hence whether they were entitled to do so under ss 188 and 190 of the Crimes Act. To that end, I have outlined the evidence of the principal witnesses concerning their recollection of the events on 14 July 2018.
Mr Glavinic
52․Mr Glavinic gave evidence of the events prior to the police arriving as well as their arrival and the resulting melee.
53․Mr Glavinic described returning home from work at around 6pm on 13 July 2018. He had dinner with Ms Williams and his mother, and they all had a glass of red wine with dinner. After dinner, he said he began unpacking some boxes for the house before watching TV. At around 8:30pm, Ms Williams went to the shops to buy more wine and poured herself another glass of wine when she returned. The two then did a line of cocaine each. Mr Glavinic said he received a text from a family friend and Ms Williams questioned him about it. He recalls Ms Williams drinking more wine and watching TV with her before going to bed.
54․Sometime in the night, Mr Glavinic said he received another text message. He said that Ms Williams questioned him about the text, believing it to be from a woman that Mr Glavinic previously slept with. He said that Ms Williams requested to see the phone and that he refused to give it to her. He told her to “leave me alone”. He said that Ms Williams then threw herself on the floor and began screaming. He walked away to the bedroom and shut the door. Ms Williams banged on the door and then tried to enter through the sliding door from the alfresco area. He said that he attempted to close the door, but Ms Williams stuck her arm in the door to stop it closing and yelled at him. He said to her “what the hell are you doing” and she began crying.
55․Mr Glavinic says that he tried to hug her and comfort her, but Ms Williams told him to “leave her alone, get away from her”. He told her that he would go to a friend’s house and went to the garage. After realising that he was parked in by Ms Williams, he said that he went back inside to get Ms Williams’ keys. He recalls that she told him “don’t take my car”. He moved her car out of the way and returned to the bedroom to find his car keys. He said that Ms Williams asked him to tell her that he loved her before throwing herself on the floor and “hysterically crying”.
56․Mr Glavinic said that his mother then entered the room and tried to comfort Ms Williams. He recalls moving to the kitchen and standing at the island bench. He said that Ms Williams approached him smiling and showed him her phone. He observed that she had typed “Gungahlin police station” into the google search bar. He said that he had an adverse reaction to this as he had a “history with Gungahlin police”. He then smashed the phone on the countertop and said, “how fucking dare you”. He told Ms Williams that he would call the police. He said he then googled Belconnen police, as he had a history with Gungahlin police so had to “be very cautious for my own safety with the police”.
57․While the phone was dialling, Mr Glavinic said that he pretended to talk to the operator and noticed Ms Williams had settled down. He said that he changed his mind about calling the police and hung up the phone. He recalls that Ms Williams walked away and that his mother tried to convince him to actually call the police. He said that he called again and began to speak to the operator before changing his mind and hanging up.
58․A short time later, Mr Glavinic said that he noticed someone at the front door. He could see through the panels on the door that they were police. He opened the door with his shoulders out through the door and spoke to the two officers. He told them that everything was fine, that his mother was there and that they could go if they wanted to. He said that the officer now known to be First Constable Edwards said “I’m not going anywhere”. He said that First Constable Edwards said to him, “I want to see the woman of the house” and that he responded “I’ll get my mum”.
59․Mr Glavinic said that he shut the door and did not slam it. He said that he turned the light on and could see two other police officers trying to hide. He went to get his mother. First Constable Edwards said “Oi, oi, come back here”. After having spoken to his mother, he heard First Constable Edwards banging on the door. He described it as “psychotic banging”. He said that First Constable Edwards said “Open the fucking door or I’m going to kick it in. Let me in. You can’t stop me”. He said that First Constable Edwards then counted down from 10.
60․He then grabbed his phone and began a recording using the Snapchat application. He and his mother returned to the front door. He said he saw Senior Constable Boxx watching them from the side of the property. He said he noticed that the police were wearing black leather gloves. He said he could see “the adrenaline and the rage in their eyes, like I could tell they were ready for a fight”.
61․He said he introduced his mother to the police officers when the door was closed. He said that First Constable Edwards saw the phone and said “No, no, no. Let me in.” Mr Glavinic said “I don’t need to let you in without a warrant”. He said that First Constable Edwards aggressively told him to let him in and to open the door. Mr Glavinic then said that he formed the opinion that if something did not change that the police were going to shoot him through the door or kick the door down and shoot him dead. He therefore said “I’m going to open the door”. He opened the door slowly while recording the incident on his phone. He said that as soon as he unlocked the door, First Constable Edwards kicked the door into him by raising his foot and “stomping” the door. The police then pushed the door into him and he pushed back. He says that First Constable Edwards looked him in the eye, smiled and said “stop trying to shut the door on my foot, mate” and the police forced entry into the property.
62․He denied having heard Ms Williams say anything at any time between returning to the front door and the police pushing their way in.
63․He said that the police “bent the door” and that he was thrown backwards and hit his mother. He said that the police fell forwards and that First Constable Edwards and Constable Tutt lost their balance. He said that the order of entry was First Constable Edwards, Senior Constable Boxx, Constable Tutt and then Constable Hill.
64․Mr Glavinic said that First Constable Edwards “sprinted straight for me”. Mr Glavinic said that he was still recording on his phone, that First Constable Edwards grabbed his left arm and threw him against the wall and that two other police officers grabbed him. He said that the officers were trying to get the phone out of his hand and he tried to keep it away from them.
65․Mr Glavinic said he was spun around and got lifted off the ground from his thighs. He recalled that he went face forward with his right side down and hit his head into the tiles while his left hand was held. He said it was “almost like a spear tackle”. Mr Glavinic said he then saw Ms Williams walking down the hallway and called out to her for help. He said it was chaotic and like being mauled. He said all the officers were just attacking him. He said there was a police officer on his left side, his right side and behind him. He said that the officer on his left side was trying to get his phone out of his hand. He said that First Constable Edwards then stood up in front of him and kicked him in the face. As a result, he saw stars and lost consciousness. When he woke up, the police officers had taken his phone. He saw an officer on the porch who sprayed him with OC spray. He could not identify that officer. He said that the spraying lasted for at least 10 seconds directly into his mouth. He turned his head into the tiles and the officer began spraying again while his face was in the tiles. He said that at this point every limb was held down and he was unable to move.
66․He then remembered his head being crushed into the ground. He tried to look for a pocket of air to be able to breathe and started biting whatever he could in order to be able to breathe. He said that someone said “ouch” and that he then “heard some laughing”. After that, he could hear them “almost like joking to each other” and then he started getting hit in the back of the skull. He recalls being hit four times and said that he was beaten unconscious.
67․He next recalled the blows to the left side of his ear and what sounded like First Constable Edwards telling him to stop hurting himself. He then said that First Constable Edwards grabbed the back of his head and hair and started hitting his face against the tiles. This occurred more than three times. He said that First Constable Edwards told him to stop resisting and to stop hurting himself “repeatedly in a jokingly manner”. He said “it was almost he was acting silly in the way he was speaking”.
68․He then said he felt a Taser between his legs. He was held down face first in the same position for a period of time and then tasered again shortly after. He said that he heard the sound of the Taser but did not feel any sensation.
69․He then said he heard someone screaming at the top of his lungs “psychotically” calling for backup. That person then walked in towards him and started kicking him in the right ribs eight or more times during which he lost consciousness. He was unable to move himself away from those kicks because he was completely held down.
70․He recalled waking up with blurry vision. He said he could feel a leg on his right arm and a weight which he presumed to be the person’s other leg on his neck. He said that the person remained in this position for about five minutes and that he was grunting and gasping and trying to get the person off him. He believes the person was First Constable Edwards because his voice sounded like First Constable Edwards.
71․He then said he moved his right arm from above his head to the side of his body but that First Constable Edwards grabbed his arm and straightened it back above his head. He resisted this, trying to put his arm back into his body. First Constable Edwards then pulled Mr Glavinic’s arm behind his head and dislocated his arm. Mr Glavinic then lost consciousness again.
72․When he regained consciousness, he heard a female yelling “Stop resisting, stop resisting, stop resisting” and he was being struck in the back of his head. His hands were behind his back. He was not aware of being handcuffed, although he now realises that he was. He said that he recalled losing consciousness again in that position. When he woke up, his body was turned to the side. He described being held in that position for a long time and feeling his lips slipping all over the tiles “like an ice‑skating rink”.
73․He said, “I did nothing wrong” and “you broke into my house”. He said the police piled on top of him again at that point. He said he started calling out “police brutality” at that point and they put a spit hood over his head. He said, “take the blindfold off” and heard the police laughing. He asked “Dziubinski, is that you?” He was not able to breathe normally with the spit hood on because of the fluid coming from his mouth. He said that the spit hood felt like it was a plastic bag and he could not get oxygen in. He said his body was convulsing, he felt like he was suffocating and he lost consciousness. The next thing he recalls is waking up in the ICU.
Ms Williams
74․Ms Williams gave evidence of events prior to the arrival of police as well as after they had entered the premises.
75․She said that since the incident in 2017 Mr Glavinic had become paranoid and thought that she was in league with the AFP, attempting to hurt him.
76․On 13 July 2018, Ms Williams, Mrs Glavinic and Mr Glavinic had eaten dinner. She had a glass of wine with dinner. She described having suffered a sense of betrayal as a result of Mr Glavinic having a relationship with another woman while she and Mr Glavinic had been separated. After dinner, she kept drinking red wine from the bottle that she had shared with Mr Glavinic at dinner. At some stage, Mr Glavinic got a message from a mutual female friend and Ms Williams reacted badly to that. She continued to drink red wine in her bedroom. She then went out and bought two more bottles of wine. She drove home. She asked Mr Glavinic if they could have some cocaine. At that stage, she had almost finished the second of the three bottles of wine.
77․Ms Williams asked Mr Glavinic to show her the message from the mutual female friend, but he declined. Ms Williams felt immediate rage and started breaking things around the house. She kicked a hole in the door and was screaming. Mr Glavinic went into the bedroom to get away from her. She tried to break the door open. At that stage, she was unable to do so. She went to the alfresco area under the pergola and tried to get into the bedroom through the sliding door. She said that Mr Glavinic jumped up to shut the door but she put her arm in the door as it was closing. She was screaming. He came out and tried to hug her and she screamed “don’t touch me”. She described herself as feeling “immense feelings of rage” and going “absolutely out of control”.
78․She then went back into the house and broke the master bedroom door by running against it in order to get into the bedroom. She recalled Mr Glavinic said something like, “I’m going out. I’m leaving” and tried to leave the house. He then went into the garage. At some stage, he put his phone to his ear and told her he was calling the police. When he did that she calmed down. She walked to the bedroom and took three Valium tablets.
79․She said that 10 to 15 minutes later, she heard Mr Glavinic saying “mum, the police are here”. She denied saying anything or making any noise between that time up until the time that she attended the front door. She cleaned up the signs of cocaine use and then walked to the front door.
80․She saw Mrs Glavinic there. She saw the front door wide open and Mr Glavinic face down on the floor with four police officers on top of him. She said she could smell pepper spray. She said that Mr Glavinic’s left hand was already handcuffed behind his back. A police officer was repeatedly hitting the back of Mr Glavinic’s head at the base of his skull and this occurred on about six occasions.
81․She said that a police officer yelled out “Taser” and she “saw and heard the electric sound going into his groin”. She said he was sprayed with OC spray a second time. She then saw First Constable Edwards put his knee on Mr Glavinic’s right shoulder, pull his arm back and lever it. She said she then “saw his shoulder snap and pop and dislocate out of the socket” and that Mr Glavinic went unconscious and quiet.
82․She saw him being tasered a second time to his back and a police officer said “Taser”, but this was not by First Constable Edwards. She recalled another police officer calling for backup. She denied hearing any officer say, “he’s going for a gun” or observing Mr Glavinic reaching for any of the officers’ pistols. She recalled hearing an officer say, “he bit me”.
83․She described First Constable Edwards holding Mr Glavinic by the back of his hair and “slamming his face into the tiles”, saying “stop fucking resisting” in a sarcastic or joking manner with an aggressive tone and giggling as though he thought it was funny. At the point where the spit hood was in place she heard Mr Glavinic saying, “Dziubinski is that you?”
84․She was asked to describe the length of time between when the officers placed the spit hood on Mr Glavinic and the ambulance arriving, and she said that it was 10 to 15 minutes. She was then asked what was occurring during this 10 to 15 minute period and said:
While he was unconscious, they continually beat him. They – he had bodies all over him. Like, there was no – they were punching him, kicking him, even when he laying – sorry, across the door prior to the officers just arriving, as they were coming in the house, I watched them use their boots and kicked him in the right ribs while he was unconscious. So this went on for a period of time. There was, like, constant beating, kicking, punching to his limp body. He was going in and out of consciousness, constantly.
85․She said she saw someone who was not a paramedic administering an injection into Mr Glavinic’s feet. She said she never saw an ACTAS paramedic inside the house. Mr Glavinic was subsequently taken out of the house and put in an ambulance.
86․She said she was pressured to make a video statement and then described the police not giving her an opportunity to properly read the notebook statement that had been prepared based upon what she had told them. She said that she did not agree with the contents of the statement which she received a copy of on 18 July 2018.
Mrs Glavinic
87․Mrs Glavinic is Mr Glavinic’s mother. In the years prior to the 2018 incident, Mrs Glavinic, who had divorced her husband Frank in 2013, had either been living by herself or living with Mr Glavinic. In the year prior to the incident, she had been living by herself. She had, however, moved in with Mr Glavinic and 13 July 2018 was the first evening that she spent at the house at Forde.
88․Mrs Glavinic appeared to have a patchy recollection of what had occurred earlier in the evening. She said that she was unpacking and getting her room ready for the night. Later in the evening she noticed that Ms Williams was unhappy and heard Ms Williams and Mr Glavinic arguing about something. She asked Ms Williams and Mr Glavinic to be quiet. However, Ms Williams continued to argue and her voice got louder. Although she had heard them arguing before, she described Ms Williams as being a lot louder and a lot angrier. She said that she asked them a second time to be quiet. Then she went and did some work around the house. She recalled that Ms Williams completely lost her composure. She observed Ms Williams chase Mr Glavinic from room to room. While doing so she was yelling and screaming. At one stage, Mr Glavinic locked himself in the master bedroom and Ms Williams threw her body against the door to break it down. Later, Mr Glavinic went into the alfresco area to try to get away from Ms Williams. Mrs Glavinic said that at some point Ms Williams said she would call the police. Mrs Glavinic asked Ms Williams why she wanted to do that. She got no response.
89․She said she did not know why the police came to the door. She recalled hearing Mr Glavinic make what sounded like a phone call to police.
90․When the police came to the door, she was either in the kitchen or her bedroom. She said she was making herself a cup of tea and planning on going to bed. Mr Glavinic told her that the police were at the door and that he wanted her to go and talk to them. Mrs Glavinic put on her pants “so I looked more presentable”. She took the cup of tea or coffee that she had made to the front door.
91․When she went to the door it was closed. Mr Glavinic opened the door and the police were there at the door. She could not remember what was said. However, one of the police officers put a foot in the door. Mrs Glavinic said she was just standing there and they pushed the door open and got into the house. She said all of them went for Mr Glavinic. None of the police had spoken to her before that occurred.
92․Her recollection of what happened after that was limited she said “I can’t talk about it. It’s just too painful, sorry.” She said “Horrible things happened to Justin”. She recalled Mr Glavinic being “smashed to the floor”, by which she meant thrown to the ground by the police. She remembered Mr Glavinic screaming in pain. She remembered Mr Glavinic being sprayed with OC spray and tasered more than once. She remembered Mr Glavinic being “kicked and punched”. She said he was punched in the back repeatedly and kicked “to the sides and head”. She said that the police were screaming at her and “threatening to hurt” her if she tried to help Mr Glavinic. She felt that what had occurred was inhumane.
93․She said that Ms Williams arrived after Mr Glavinic had been thrown to the ground. She also remembered a spit hood being placed on Mr Glavinic. She said:
It was like a long time in which Justin was just pleading for help and calling out in pain and then going quiet, and when he went quiet, I thought he was dead, and yes. It was like – I don’t know. It was just on and on and on and on. It was like never-ending to me. It seemed like forever.
94․She said that after Mr Glavinic had been taken out of the house she spoke to female police officers and told them what happened. She cleaned up the blood in the corridor and a bloodied blanket and then went to bed.
95․In cross-examination she said that she saw Mr Glavinic being kicked. She said that she saw an officer using a baton and bringing it down in the area of Mr Glavinic’s shoulder blades. She recalled Mr Glavinic yelling a lot of things. That included “police brutality”.
96․She said that the blood that she cleaned up was “a lot of blood spread out”.
First Constable Edwards
97․Sergeant Edwards was a First Constable at the time of the incident. He had been an AFP officer for about six years at the time of the incident in 2018. He was in patrol car Gungahlin 42 with Constable Hill when the first radio message was received. Constable Hill was driving. At that stage, he understood that there was some sort of altercation and that it was a single person causing a disturbance. He said that the second radio message changed matters because the female screaming “don’t touch me” gave him the impression that there was a second person there and that there was an element of violence involved.
98․He said that the AFP had, and still has, a “pro-charge policy” if family violence is suspected.
99․First Constable Edwards identified the house because it was the only one in the street with lights on. He and Constable Hill arrived first. A second police vehicle arrived shortly afterwards. He went to the front door, looked through the window and knocked on the door. He could see a male, now known to him to be Mr Glavinic, in the back of the residence with a cigarette in one hand. He could hear some murmuring but could not hear anything in particular. He said that Constable Hill and Senior Constable Boxx were behind him, and that Constable Tutt was at the side of the house. Mr Glavinic came to the door and opened it about six inches. First Constable Edwards informed Mr Glavinic that there had been some calls in relation to a disturbance at the location and that “we needed to come and make sure that everyone there was okay”. At some point, he asked whether there was a female in the house and Mr Glavinic told him that his mother was home.
100․He remembered thinking at the time that Mr Glavinic’s mannerisms were a little bit odd. He said that Mr Glavinic said “Everything’s fine, you can go”. He said that Mr Glavinic managed to slam the door and then left the area. He said that Mr Glavinic was inside and away from the front door for about two minutes. Mr Glavinic moved away from the door and First Constable Edwards could see him talking to someone off to his right. Mr Glavinic did not appear to be aggressive or violent towards whoever he was speaking to.
101․First Constable Edwards kept knocking on the door to get Mr Glavinic’s attention because he was uncomfortable with the door being locked in light of the history of the female screaming “don’t touch me”. He wanted to get access “To ensure that she was okay”. He said he “began punching the door fairly hard and yelling for him to come back to the front door”. Although he lost sight of Mr Glavinic, “which made [him] very uncomfortable”, Mr Glavinic came back and opened the front door. It was open slightly more than last time. He could see a female (Mrs Glavinic). He said this led to his concerns dying down because she did not appear to be harmed. She was very quiet.
102․Mr Glavinic said “See, here she is. She’s fine. You can go”. First Constable Edwards wished to speak to the parties individually so he tried to get Mrs Glavinic to step outside if they did not want him to come inside. While he was speaking to them, he heard another female voice from inside the house. As a result of hearing the voice, his concerns increased because he believed that Mr Glavinic had been lying to him and trying to hide something that had occurred in the house.
103․He said that Mr Glavinic’s presentation was not a usual response to this kind of police attendance. A usual response would be either extreme hostility or to allow police inside to speak to them. Mr Glavinic’s position indicated to First Constable Edwards that he was ensuring the police would not be able to enter if they chose to do so. When he heard the second female voice he said “No, I need to come in now” and Mr Glavinic tried to shut the door on him. First Constable Edwards said “Mate, you need to stop shutting the door on my foot. We need to come in”. First Constable Edwards gave evidence that he wanted to go in “Because of the other female voice that I’d heard. As I said, I believed he’d lied to me and I need to make sure that she was okay”. He said he believed it had been some sort of family violence incident inside. His evidence as to the purpose of entry was:
[F]irst of all to prevent the repetition continuation or commission of a new offence. And secondly, the more important one, is to make sure that that person was okay.
104․Assisted by Senior Constable Boxx, he pushed the door open. First Constable Edwards’ intention was to go to the back of the house where he heard the voice. He said that he made the mistake of not putting Mr Glavinic under arrest immediately for obstruction. He said that he tried to go past Mr Glavinic and get to the back of the house, but Mr Glavinic grabbed the back of his ballistic vest. Once he was able to break the grip on his vest, he tried to place Mr Glavinic under arrest. He was trying to arrest him for obstruction and at some stage he said that he was under arrest for obstruction. It then turned into “a standing melee of a lot of shifting parts”.
105․Mr Glavinic was still standing up when the police officers were trying to get his hands behind his back to handcuff him. First Constable Edwards recalled that Mr Glavinic managed to get “one hand sort of over the top of my head and his fingers were close into my eyes”. He was able to break free. He used a “seatbelt takedown” which involved putting one arm over the top and one underneath each of Mr Glavinic’s shoulders and then lifting Mr Glavinic and tipping him off balance so that they both fell to the ground.
106․At some stage, he heard someone scream “gun” and observed a hand on his firearm. Having regard to the position of the other officers, he concluded that the hand belonged to Mr Glavinic. He manipulated the holster so as to force Mr Glavinic’s hand off it. He noticed that the magazine had come out of the firearm. He said that he grabbed the magazine and threw it out the front door.
107․He saw Senior Constable Boxx delivering “closed mode strikes” with his baton. It looked to him like Senior Constable Boxx was striking Mr Glavinic’s upper shoulders, targeting the suprascapular.
108․He became aware afterwards that during the struggle, another officer had deployed OC spray.
109․He said that at certain points throughout the wrestle Mr Glavinic was hitting his head against the ground. A police officer put a blanket under Mr Glavinic’s head.
110․He attempted to use his Taser twice and was successful in deploying it once. The first time he tried to deliver a “drive stun”, however there was no sound and no light came out of the device. After that happened he threw the Taser out the front door.
111․He tried to secure Mr Glavinic’s left hand but Mr Glavinic was attempting to grab anything and to “bring his arm in and away from me”.
112․He described what occurred as “the hardest wrestle that I’ve had”. When Acting Sergeant Chapman arrived he noticed that the Taser had actually turned on and asked Acting Sergeant Chapman to pass it to him. He deployed the Taser a second time in order to try to interrupt what was happening, but the Taser seemed to have no effect on Mr Glavinic.
113․After Acting Sergeant Chapman arrived, between them they were able to get a handcuff on Mr Glavinic’s left wrist.
114․He said that Mr Glavinic was screaming almost non-stop and a lot of what he said was “nonsensical”. He said that he heard Mr Glavinic make reference to “Sergeant Binsky” and another name that he could not make out. He also heard Mr Glavinic tell Ms Williams that it was all her fault. Mr Glavinic called out “police brutality” and “help”.
115․First Constable Edwards said that Mrs Glavinic simply watched the event with her cup of tea.
116․He denied seeing anyone kick or punch Mr Glavinic in the head.
117․He then “walked the floor”, maintaining pressure on Mr Glavinic’s back and then moving around past his head to collect Mr Glavinic’s right arm before forcing it around so that it could be handcuffed. As he moved around, he was able to break Mr Glavinic’s grip on the venetian blinds and managed to get Mr Glavinic’s arm behind his back so as to be able to handcuff it.
118․He then had to search Mr Glavinic but Mr Glavinic was “spitting blood” and First Constable Edwards believed that he was spitting towards police. Mr Glavinic was still screaming. Prior to conducting the search, First Constable Matt Brownlie gave First Constable Edwards a spit hood and First Constable Edwards put it on Mr Glavinic. Even after the handcuffs were on and the search was completed, there was still “a high level of resistance” from Mr Glavinic. He said at no time did he notice that Mr Glavinic was unconscious because if that had been the case then the police would have been able to put the handcuffs on.
Constable Tutt
119․Senior Constable Alexander Tutt was a Constable in 2018. On 14 July 2018, he was in the vehicle Gungahlin Patrol 43 with Senior Constable Boxx. Senior Constable Boxx was driving. He recalled the two radio transmissions. He thought that the situation was one in which “a female may or may not have been requiring assistance”. He saw Constable Hill and First Constable Edwards at the front door, which was closed. After a short conversation with First Constable Edwards and Constable Hill, he moved to the side gate. He entered the side of the residence through the gate. He went to where he could see through the window into the kitchen of the residence. He observed Mr Glavinic talking to Mrs Glavinic. He could not make out what was said. He observed them walking towards the front door and went back to the front door.
120․He heard Mr Glavinic saying “You’re not coming in”. He saw First Constable Edwards put his foot against the door and Mr Glavinic was pushing against the door. Constable Tutt formed the view that he needed to enter the residence to ensure the safety and welfare of all persons inside. First Constable Edwards, Senior Constable Boxx and Constable Hill entered, and he followed them. He saw Mr Glavinic grab First Constable Edwards and then the other two police officers grabbed Mr Glavinic. He manoeuvred around the four people and saw Mrs Glavinic sipping a cup of tea. Ms Williams attended the location as he was walking around the group. Mr Glavinic said to her “This is all your fault. I’ll fucking kill you”. Constable Tutt then used OC spray on Mr Glavinic. He said he did so because of the threat to Ms Williams as police were unable to control Mr Glavinic. He applied a one to two second burst of OC spray towards Mr Glavinic’s eyes. It had no effect on Mr Glavinic.
121․He saw First Constable Edwards use a seatbelt takedown and Mr Glavinic ended up on the ground facing the ceiling. Constable Tutt then went towards Mr Glavinic’s left shoulder and tried to restrain his left arm. On the way down, he saw Mr Glavinic grabbing at First Constable Edwards’ face or chest. Constable Tutt had his right knee on Mr Glavinic’s left cheek and chest. Mr Glavinic demonstrated strength like nothing Constable Tutt had ever faced before.
122․He said he saw Mr Glavinic reach around First Constable Edwards’ lower back and grab at his firearm. He described Mr Glavinic pressing down on the locking mechanism on the holster. He said he remembered it because it was a “fluent motion” and “it was very unusual for me”. The weapon was close to being withdrawn from the holster. He yelled “Dave he’s going to your gun”. First Constable Edwards manoeuvred his body to put pressure onto the area and secure the firearm. The magazine ended up on the floor.
123․A short time after that, Constable Tutt was bitten in the upper right leg by Mr Glavinic. Mr Glavinic continued to resist police and was flailing his arms with clenched fists. At various times he was yelling “police brutality”. Constable Tutt was consistently saying “stop resisting”.
124․He saw Senior Constable Boxx making calls on the radio.
125․After the bite, police were able to turn Mr Glavinic over. He saw Senior Constable Boxx using a baton to deliver several strikes in closed mode to Mr Glavinic’s shoulder region.
126․He saw First Constable Edwards use a Taser twice. He said that First Constable Edwards yelled “Taser, Taser, Taser” and put the Taser in the middle of Mr Glavinic’s back, but there was no effect or change in Mr Glavinic’s demeanour. Constable Tutt remained around Mr Glavinic’s right shoulder. Mr Glavinic started smashing his forehead or whole face on the tiled floor. Later in the incident, Constable Tutt said he put his gloved hand between Mr Glavinic’s head and the tiled floor. However, that hurt his hand, so he then placed his foot there to prevent Mr Glavinic from hurting himself as much.
127․He saw Acting Sergeant Chapman and Senior Constable Williams arrive. Acting Sergeant Chapman provided a Taser that was on the floor to First Constable Edwards. First Constable Edwards said “Taser, Taser, Taser” and used the Taser again, but there was no change in Mr Glavinic’s demeanour. Acting Sergeant Chapman helped First Constable Edwards to secure Mr Glavinic’s left arm.
128․Constable Tutt then saw Mr Glavinic’s hand on his firearm holster and yelled “He’s going for my gun”. He delivered several knee strikes to the side of Mr Glavinic’s chest.
129․At no time did he see that Mr Glavinic was unconscious.
130․After the first handcuff was put on, First Constable Edwards helped him to secure Mr Glavinic’s right arm. First Constable Brownlie arrived and asked Constable Tutt to get the spit hood which was in First Constable Brownlie’s police vehicle. He observed Mr Glavinic spitting to the left, to the right and in front of him.
131․After the ambulance officers arrived, he had a discussion with them about having been bitten by Mr Glavinic.
Senior Constable Boxx
132․Acting Sergeant Caleb Boxx was, in July 2018, a Senior Constable stationed at Gungahlin police station. He was in the vehicle Gungahlin Patrol 43, with Constable Tutt. He said that after he heard the second radio call “it further enforced my suspicion at that point in time that it was a disturbance, and that it had apparently escalated from being a potential verbal only disturbance to a physical disturbance with potentially a female having hands put on her”. Although he observed First Constable Edwards talking at the front door, by the time he got there the door had been closed. He was told by First Constable Edwards that the occupant had gone back inside “to speak to his mum”.
133․He went to the left side gate. He said that he thought it was necessary to enter the yard and look through the window to establish whether a person may have suffered or was at imminent risk of suffering an injury, or whether an offence was occurring or was about to occur. He saw Mr Glavinic making a telephone call and Mrs Glavinic sipping from a teacup. When he saw Mr Glavinic on the phone, he went back to the front door. By the time he returned, the front door was open and Mr Glavinic was speaking to First Constable Edwards. He heard First Constable Edwards saying, “We need to come in and make sure everyone’s all right”. Mr Glavinic said “She’s not here. She’s left.” Mr Glavinic then said “Everything’s fine. She’s left”, and “You’re not coming in”.
134․Senior Constable Boxx thought that either Mr Glavinic was lying about his mother being there or there was a third person. That caused him to “suspect even more so that someone had suffered harm or that there was an offence occurring”. He said he believed it “prudent to enter the residence and confirm the safety and welfare of all persons in that residence”.
135․He might have heard First Constable Edwards say “We need to come in” but then he heard him say “Stop trying to close the door on my foot”. He placed his hand on First Constable Edwards’ left shoulder to indicate that he was there. Police then pushed the door open. Mr Glavinic’s right fist was clenched and he held a mobile phone in his left hand.
136․Based on Mr Glavinic’s demeanour and posture, Senior Constable Boxx thought that he would assault or resist police and went to grab his right arm. First Constable Edwards also grabbed his right arm and Constable Hill grabbed his left arm. At this stage, Mr Glavinic had not done anything apart from holding the door. He described Mr Glavinic as an imposing person whose tensed and flexed muscles made it feel like “holding onto concrete”. He and other police officers were telling Mr Glavinic to not resist.
137․Within a few moments, Mrs Glavinic moved forward from the kitchen area and a short time after that Ms Williams came to the kitchen door. Mrs Glavinic did not say anything. Ms Williams ran up screaming, “Don’t hurt him, don’t hurt him” and “let him go”. Senior Constable Boxx put his hands up and told her to “move back, move back.”
138․First Constable Edwards applied a seatbelt takedown. Mr Glavinic yelled “Fuck you. You did this. I’ll fucking kill you.”
139․Shortly after the takedown, Senior Constable Boxx heard Constable Tutt yell “He’s going for my gun”. He saw Mr Glavinic’s right arm across First Constable Edwards’ body on First Constable Edwards’ firearm. The firearm was partially drawn out of the holster. At this stage Senior Constable Boxx thought that he might die. Senior Constable Boxx moved to attempt to secure the firearm. He was kicked by Mr Glavinic two or three times in the torso and groin. He got on top of Mr Glavinic, and together with First Constable Edwards, managed to get the firearm back into the holster.
140․Senior Constable Boxx then made a radio call seeking urgent assistance. He deployed OC spray but there was no change in Mr Glavinic’s level of compliance. He then saw First Constable Edwards do something with the Taser. He heard First Constable Edwards say, “Stop resisting or you’ll be tased” but did not see or hear it activate. He heard Constable Tutt yell “Ow, he’s biting me” at some stage after the Taser. He used baton strikes to strike the brachial plexus zone in the shoulder area in the hope of deadening an arm and allowing Mr Glavinic to be handcuffed. He subsequently heard First Constable Edwards asking someone to pass him the Taser. He was fairly confident he heard it actually activate the second time.
141․He recalled that “almost the entire time [Mr Glavinic] was kicking out with his legs, thrashing about with his arms, lifting his torso up off the ground, screaming at people, bit Constable Tutt”. He said that Mr Glavinic was “forcibly smashing his face down into the tiles” several times in a short period of time and Senior Constable Boxx put a blanket under Mr Glavinic’s head. He could not recall if Mr Glavinic did it on other occasions. He also pressed his knee on Mr Glavinic’s shoulders to try to hold him down and stop him from lifting up and smashing his head into the tiles. That was not successful. He and First Constable Edwards maintained a “constant verbal narrative” saying things like “stop”, “stop resisting”, and “stop hurting yourself”.
142․Prior to the ambulance officers administering something, he had not observed Mr Glavinic to be unconscious.
Constable Hill
143․Senior Constable Simon Hill was a Constable stationed at Gungahlin police station in July 2018. He was working with First Constable Edwards in a marked caged vehicle (Gungahlin Patrol 42). His initial assessment based on the first radio call was that there was a possible disturbance or a mental health episode. The second radio call indicated that it may be a possible family violence incident. He said that First Constable Edwards told Mr Glavinic that police had received reports of someone screaming and that police needed to come in and check on the occupants of the residence. Mr Glavinic said “It’s just me and my mum here. We’re fine” and “You’re not coming in”. Mr Glavinic then closed the door and walked off towards the rear of the residence.
144․The door reopened after one or two minutes. He described his intention at that stage as “To check the welfare of the occupants”. Mr Glavinic opened the door a little. First Constable Edwards said that police needed to come in and check the welfare or words to that effect. Mr Glavinic said, “You’re not coming in”. He recalled that First Constable Edwards had put his foot inside the door. Mr Glavinic attempted to close the door. First Constable Edwards said “We’re coming in”. Constable Hill said that he believed there was a family violence offence that had been committed and that he wished to check on the occupants to make sure that no one was seriously injured.
145․Constable Hill recalled that, upon entry, Mr Glavinic’s left hand was free and he went to control it. He heard First Constable Edwards say that Mr Glavinic was in custody. Mr Glavinic was extremely hostile, agitated and very aggressive towards the police officers. He observed Mrs Glavinic with a cup of tea in the lounge room. Mr Glavinic said to her “This is your – all your fucking fault”. He observed Constable Tutt use OC spray. It had no effect on Mr Glavinic. First Constable Edwards performed a seatbelt takedown. Constable Hill fell to the ground and as he was turning back Mr Glavinic grabbed him around the face and then grabbed his vest.
146․Constable Hill then attempted to control Mr Glavinic’s legs. Constable Tutt called out “He’s going for your gun” and he saw Mr Glavinic’s hand on the holster of First Constable Edwards’ gun. Constable Hill remained on Mr Glavinic’s legs and observed First Constable Edwards rotate his hips to prevent Mr Glavinic from accessing his gun.
147․Constable Hill heard others saying “Stop resisting”. He heard Constable Tutt yell out “He’s just bitten me”. He saw First Constable Edwards attempt to use a Taser, yelling “Taser – Taser – Taser”. He did not hear any zapping sound from the Taser. There was no change in Mr Glavinic’s demeanour. Constable Hill did not use or see anyone else use their baton.
148․He heard Senior Constable Boxx make two calls on the radio. Up until the arrival of additional police officers, Mr Glavinic had not stopped struggling and had not been unconscious at any time. He said that Mr Glavinic was not unconscious at any time prior to a sedative being administered by ambulance officers. After other officers arrived, one of them took over control of Mr Glavinic’s legs and Constable Hill left the premises. When he came back, he saw Mr Glavinic banging his head on the tiled floor. A folded blanket was placed under Mr Glavinic’s head to prevent further injury. He thought that First Constable Brownlie initially put his foot under Mr Glavinic’s head to stop him while the blanket was being placed under his head. He observed Mr Glavinic in a spit hood but did not see it being put on.
Assessment of the evidence
149․There was obviously a substantial conflict between the evidence given by Mr Glavinic and Ms Williams on the one hand and the evidence given by the police officers on the other. There was little conflict between the evidence of Mrs Glavinic and the police officers because Mrs Glavinic’s recollection was not very detailed. It is likely that the recollection of all witnesses was affected by the stressful and chaotic events that occurred as well as by the passage of time since those events. The recollections of police officers were recorded at a time more contemporaneous with the events due to the necessity to prepare documentation in the immediate aftermath of the incident as well as to prepare statements for the purposes of the criminal case against Mr Glavinic that arose from the incident.
150․While recognising that there were significant differences between the evidence given by the police officers, that evidence is to be accepted in preference to the evidence given by Mr Glavinic and Ms Williams. For reasons which are explained in detail below, I considered Mr Glavinic and Ms Williams’ evidence about the events surrounding the entry by police and the melee involving Mr Glavinic to be unreliable. As a result, it is not possible to accept their evidence concerning the actions of police where it conflicts with other evidence in the case.
Mr Glavinic
151․Mr Glavinic’s evidence was given earnestly but in my view reflects a detailed yet inaccurate reconstruction and embellishment of what occurred. He appeared to be intelligent and very well prepared to give evidence. The tendency towards reconstruction is likely to have been influenced by his pre-existing paranoid beliefs about police, the sense of injustice that he feels as a result of the consequences of the violent melee and his desire to achieve a successful outcome in the case. Leaving aside reconstruction, the reliability of his evidence is likely to be affected by his consumption of cocaine prior to the melee, his participation in the melee and the fact that he was sedated immediately after the events and remained under sedation until the morning of 15 July 2018.
152․Two particular features of the evidence which indicate its unreliability are the descriptions of being rendered unconscious and the description of conduct on the part of police indicating that they were making light of the situation in a way that was suggestive of malice on their part.
153․So far as unconsciousness is concerned, Mr Glavinic’s evidence was that, as a result of the police officers’ use of force, he was rendered unconscious on at least four occasions prior to an occasion which would coincide with the administration of ketamine by an ACT ambulance paramedic. This evidence involved an unrealistic level of detail as to what had occurred during a chaotic struggle recalled five years after the event. More significantly, it is unlikely that he was rendered unconscious on two different occasions prior to the time when he was handcuffed and yet continued resisting during that time in a manner which prevented four police officers from gaining enough control over his limbs to be able to handcuff him. If he had actually been rendered unconscious or his consciousness sufficiently affected to subdue him, then the police officers would have been able to handcuff him. Yet that did not occur, despite the best efforts of four police officers to do so.
154․So far as police officers making light of the situation, his evidence, if accepted, would indicate that the police were dealing with the circumstances in a light-hearted manner and maliciously tormenting him. That was illustrated by his evidence that:
(a)First Constable Edwards was smiling prior to forcing entry into the property;
(b)the police officers were laughing and joking at the time when Constable Tutt had been bitten on the upper thigh;
(c)at the time police officers were lifting his head and banging it into the floor they were calling out “stop hurting yourself”; and
(d)the police officers were laughing when they put the spit hood on him.
155․Obviously, if this evidence was accepted it would be very serious and reflect outrageous conduct on the part of the police officers. However, I do not accept that the police officers made light of the situation that they were facing or demonstrated the kind of malice directed towards Mr Glavinic that is reflected in his evidence. Rather, the evidence of the police officers about the circumstances of the interaction and their reaction to it indicates that they had simply been attending a routine callout where there was the possibility that some domestic violence had occurred. Unexpectedly, they became involved in a desperate and challenging struggle and one which they did not make light of at the time. So far as contemporaneous records are concerned, the gravity of the situation is reflected in what can be heard in Senior Constable Boxx’s radio call seeking urgent assistance (see [42] above). Mr Glavinic’s evidence that police were making light of the incident reflected, in my view, a paranoid reconstruction of the events that occurred.
156․In addition to these two significant aspects of his evidence indicating its unreliability, other features of Mr Glavinic’s evidence that were consistent with a paranoid reconstruction and elaboration upon any actual recollection include the following:
(a)The references to two other police officers “trying to hide” after he had shut the door on First Constable Edwards.
(b)The evidence of First Constable Edwards saying “Open the fucking door or I’m going to kick it in”, which was inconsistent with the evidence of each of the police officers and unlikely in the circumstances.
(c)The evidence given of observing Senior Constable Boxx watching Mr Glavinic and his mother from the side of the property, which appears to be unlikely and instead something which Mr Glavinic would have known as a result of evidence given by police officers at the criminal trial.
(d)The reference to “the adrenaline and the rage in [the] eyes” of the police officers appeared to be an incredible and paranoid observation, consistent with a retrospective elaboration upon an actual memory.
(e)Similarly, the evidence that at the time he thought police were going to shoot him through the door or kick the door down and shoot him dead clearly reflected a paranoid belief but one which is unlikely to have been held at the time having regard to the evidence of each of the police officers that there was a conversation after the door had been opened the second time.
(f)The evidence that First Constable Edwards kicked the door open as soon as Mr Glavinic unlocked the door is inconsistent with the evidence of each of the police officers and very unlikely in the circumstances.
(g)His description of the seatbelt takedown as “almost like a spear tackle” appeared to involve some exaggeration.
(h)The evidence of him filming the incident on his phone and police officers being focused on removing his phone up until the point where he said he was kicked in the face by First Constable Edwards and lost consciousness reflected a paranoid elaboration designed to suggest that the police, from the very beginning of the incident, were intent on destroying evidence and covering their tracks.
Ms Williams
157․Ms Williams’ evidence mirrored some aspects of Mr Glavinic’s evidence. The following matters were aspects of her evidence that I considered were clearly unreliable and indicative of the general unreliability of her evidence:
(a)That, at the point when she arrived, Mr Glavinic’s hand was already handcuffed behind his back. It is clear from the evidence of the police officers that she arrived close to the beginning of the incident, but that the left handcuff was only applied much later after Acting Sergeant Chapman arrived.
(b)That she heard the electric sound when the Taser was first deployed. The rest of the evidence in the case indicates that the Taser did not work on that first occasion.
(c)That she observed Mr Glavinic to go unconscious and quiet after his right hand was secured. This is inconsistent with the evidence of all police officers in the case.
(d)That she saw a police officer other than First Constable Edwards deploy the Taser a second time. The evidence establishes that it was First Constable Edwards who used the Taser.
(e)That she saw First Constable Edwards holding Mr Glavinic by the back of his hair and slamming his face into the tiles while saying “Stop fucking resisting” in a sarcastic or joking manner and giggling as though he thought it was funny.
(f)Her description of the continuous beating for 10 to 15 minutes after the spit hood was placed on Mr Glavinic, set out at [84․5] above;
(g)That somebody other than a paramedic administered an injection into Mr Glavinic’s feet.
(h)She was intoxicated, having drunk most of two bottles of wine, done one line of cocaine and taken three Valium. This was likely to have affected the quality of her recollection.
158․While I considered her evidence as to her own bad behaviour prior to police arriving to be generally accurate, I consider that her evidence following the arrival of police is likely to be unreliable, affected by a sense of responsibility for what occurred and by a desire to advance Mr Glavinic’s claim against the police. That is consistent with her desire to retract the statement she made to police on 14 July 2018. I considered her evidence of unfair police conduct surrounding the making of the statement to be implausible having regard to the evidence of Acting Sergeant Chapman and Senior Constable Williams as to what occurred.
Mrs Glavinic
159․Mrs Glavinic’s evidence was more limited and impressionistic. At a number of points, her memory failed her. When giving her evidence she said that she was “frozen”. She said that she would have to go back there in her mind to recall matters. Often, she said “I don’t know how to answer that question”. I considered her evidence to be of limited value in determining the issues in dispute as to what occurred during the incident.
First Constable Edwards
160․First Constable Edwards was quite a sophisticated witness. His recollection was obviously and understandably affected by the passage of time and the chaotic circumstances surrounding the melee. He was well aware of the legal framework in which the police were operating. He was someone who would, in the context of this case, have understood at an early stage the legal significance of having heard a voice at the critical moment when he was at the door. As a result, in circumstances where Mr Glavinic, Ms Williams and Mrs Glavinic denied hearing any noise and none of his police colleagues heard any such noise, there is the potential that this aspect of his evidence was an invention designed to assist his claim that he was acting pursuant to s 190.
336․Mr Glavinic’s evidence was that he could now cook (other than lifting heavy pots), clean and do day-to-day activities around the home.
337․Domestic assistance for the past would be calculated on the basis of a requirement of four hours assistance per day for 28 weeks following the surgeries, calculated at the rate of $50 per hour. This gives a total of $39,200 (4 × 28 × 7 × 50).
338․So far as the balance of the period is concerned, it will be calculated on the basis of four hours per week calculated at $50 per hour. This gives a total of $54,400 (4 × 272 × 50).
339․That gives a total of $93,600. Interest would be payable on that amount in accordance with the Court Procedures Rules: Grincelis v House [2000] 201 CLR 321. That would be an amount of $13,094.
340․So far as the future is concerned, the plaintiff submitted that an amount of $58,000 was appropriate based upon one hour per week for 35 years (multiplier 1138) at $50 per hour and a modest further allowance for additional periods of assistance following surgery. This submission was substantially less than that referred to in the defendants’ written submissions and, as a consequence, promptly adopted by the defendants.
341․In my view, a calculation based upon one hour per week for 35 years (based on a life expectancy of 43.6 years) with a modest additional buffer is a reasonable one. The award for future domestic assistance would be $58,000.
Aggravated and exemplary damages
342․The plaintiff claimed both aggravated and exemplary damages.
343․In Lamb v Cotogno (1987) 164 CLR 1 at 8 the judgment of the court explained that:
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. 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.
(Citation omitted)
344․In NSW v Ibbett [2006] HCA 57; 229 CLR 638 at [31] the judgment of the court provides:
Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing. (Footnote omitted)
345․In Lamb v Cotogno at 9, the judgment of the court approved Brennan J’s formulation in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 (at 471):
As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages …
The social purpose to be served by an award of exemplary damages is … ‘to teach a wrong‑doer that tort does not pay’.
346․The court continued (at 9):
The object, or at least the effect, of exemplary damages is not wholly punishment and the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing … It is an aspect of exemplary damages that they serve to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace …
347․I would have made no separate award of aggravated damages. The award for general damages incorporates compensation for the intangible injuries to the plaintiff arising from the circumstances, as I have found them to be, of the trespass, his arrest and the circumstances that followed from that. It is not necessary to make a separate award in relation to those consequences.
348․So far as exemplary damages are concerned, I would have made no award for exemplary damages. The findings that I have recorded above do not involve, in the case of any of the plaintiffs, a “conscious and contumelious disregard for the plaintiff’s rights”. Rather, they involved a misunderstanding of the scope of police powers of entry in particular circumstances and the unfortunate consequences of the entry into the premises. The conduct of the police officers did not involve any conscious wrongdoing. It was not “high-handed”, “outrageous” and did not demonstrate “contempt for the rights of others”: State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 at [138]. The commission of the tort of false imprisonment does not of itself constitute a conscious and contumelious disregard of the plaintiff’s rights giving rise to an entitlement to exemplary damages: State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [25], [117]. Thus, while the circumstances would require a very substantial award of compensatory damages, they do not require an award of exemplary damages.
Summary
349․The damages that would have been awarded are summarised in the following table.
Component Amount Damages for trespass $5000 General damages $300,000 Interest on general damages $21,600 Past economic loss $535,586 Interest on past economic loss $74,783 Future economic loss $894,395 Past out-of-pocket expenses $44,602 Interest on past out-of-pocket Not calculated Future out-of-pocket expenses $38,019 Past domestic assistance $93,600 Interest on past domestic assistance $13,094 Future domestic assistance $58,000 Total $2,078,679.00
Contingent assessment of damages – Heather Williams
Introduction
350․Notwithstanding the fact that I have not accepted that Ms Williams’ evidence as to what she observed during the 2018 incident is accurate, her evidence about the consequences of the incident is substantially corroborated by documentary records and provided an appropriate foundation for the opinion of Dr Jungfer, which I accept.
351․The evidence disclosed that she has a complicated psychiatric history described in the report prepared by Dr Jungfer. [One sentence redacted]. She has a history of depression, a diagnosis of Borderline Personality Disorder and alcohol abuse. Since 2012, she has had a number of dissociative episodes such as that which occurred on the evening of 13 July 2018.
352․She left school at the end of Year 10. Between 2010 and April 2016, she worked in a large number of different jobs in Canberra. She moved briefly to Newcastle in 2012, but returned to Canberra when the job that she had ended. In April 2016, she joined the Commonwealth public service as an APS3. From the middle of 2017, she moved to a Commonwealth agency where, after a time, she became executive assistant to the head of the organisation. She held that position at the time of the 2017 incident. Following the 2017 incident, she moved jobs to a different Commonwealth agency where she was the executive assistant to the chief information officer.
353․She was off work for six weeks following the 2018 incident. She continued to have nightmares about the incident. She found that she was forgetful and exhausted at work. A general practitioner prescribed her drugs for anxiety and insomnia. She was downgraded to an executive assistant’s assistant. In 2020, she was demoted from that position to a “regulatory officer”, a new role that was different to being an executive assistant. She found that she could not absorb the information and made mistakes in doing the audits that she was required to do for her job. She was subject to a process of performance management and managed to keep her job. However, in January 2022 she was advised by her doctor to reduce her workload to three days a week. She was working from home with an obligation to attend the office either once a fortnight or once a month. She ultimately resigned from the public service in May 2023.
354․She said she started drinking heavily after the 2018 incident. She gained 27 or 28 kg during 2019 and 2020. She attended a private hospital for a three week stay in 2020 after which she ceased drinking for a period of six months. [One sentence redacted].
355․The documentary evidence is consistent with the July 2018 incident having a significant effect upon her from the time that it occurred. She received treatment from her general practitioner, psychologists and psychiatrists in the second half of 2018 and in 2019. In 2019, she was diagnosed with PTSD arising from the incident.
356․Dr Jungfer reached the conclusion that she did not have pre-existing PTSD. The effect of the earlier traumas in her life was to lower the threshold for the development of such a disorder. The 2018 incident was the cause of the onset of PTSD. It resulted in a worsening of her Alcohol Use Disorder. It was not causally related to the Borderline Personality Disorder.
Trespass to property
357․For the bare trespass to property, I would have awarded damages of $5000.
General damages
358․The effect of the 2018 incident came against the background of a significant level of vulnerability as a result of Ms Williams’ personality structure and previous trauma. It has had very significant impacts upon Ms Williams resulting in an ongoing condition of PTSD and a worsening of her Alcohol Use Disorder. These conditions have in turn had significant consequences for her capacity to work. When assessing the counterfactual situation in which the incident had not occurred, there was a significant risk as a result of her pre-existing Alcohol Use Disorder that events in her life would have adversely affected her mental state and work life in any event. That is made clear by the evidence of her behaviour on the evening in question which clearly demonstrated a significant level of dysfunction. Her prognosis for the future is uncertain. There would be some prospect that, following the conclusion of the litigation and further treatment, she would be able to make progress towards her previous level of functioning. I would have awarded general damages in the sum of $160,000. Attributing half of that to the past and half to the future gives interest of $8640 (5.4 x 0.02 x $80,000).
Economic loss
Past economic loss
359․Ms Williams joined the Australian public service in 2016. She had various roles and by April 2018 she was a personal assistant to the head of a Commonwealth agency and two executive directors within that organisation. She moved to a different agency in April 2018. As at the date of the incident, she was on a salary of $68,968. This resulted in after-tax earnings of $1037 per week.
360․Ms Williams claims the difference between the amount that she actually earned ($223,776) in the period 2018-2023 and the amount that she would have earned had she continued to receive the income that she did in the 2017-2018 financial year. This gives a figure of $34,970 ($274,125 - $223,776). She also claims superannuation on this amount based on a rate of 14.5 percent, being an amount of $5071. As these amounts are less than the amounts contended for by the defendants, they would have been awarded as claimed. The total is $40,041. She would be entitled to interest on those amounts at Court Procedures Rules rates in the sum of $5601.
Future economic loss
361․Ms Williams was 32 years of age at trial and 33 at the time of judgment. On the assumption that she would work until pension age, she has an expectation of working for a further 34 years.
362․In her statement of particulars filed in June 2023, after her resignation from the public service, the claim for future economic loss had two components. The first component was the difference between her pre-injury earning capacity and her average weekly earnings in her last public service job. This was assessed as an amount of $293.24 per week. Calculated over the 38 years until retirement age and with a 15 percent allowance for vicissitudes, this gave a claim of $296,862 (293.24 x 1191 x 0.85).
363․There was then an additional claim for a buffer for the difference between $44,748, reflecting her most recent annual salary in the public service, and the average annual salary of a lawyer, said to be $110,000. This was said to be a loss of equivalent to a loss of $60,000 per year. This was based on the submission that Ms Williams “could have gained entry into university, completed a law degree and … could have become a lawyer”.
364․In final submissions, notwithstanding that there was no application to amend the statement of particulars, although she submitted that a finding of total incapacity for the balance of her working life would be “difficult on the evidence”, she submitted that it was appropriate to award damages on the basis of a total incapacity for five years ($270,848 for loss of wages and $39,273 for loss of superannuation) followed by a substantial buffer ($500,000) in relation to the balance of her working life.
365․In contrast, the defendants’ submissions were targeted at the claim identified in the statement of particulars. The submission was that the award should not be based upon, or reflect the possibility that, Ms Williams would obtain a law degree. She had only got as far as enrolling in, but never commenced, a university preparation course that might have allowed her to start a law degree in circumstances where she had not completed Year 11 or 12 at school.
366․Further, although the plaintiff’s calculations were based upon working until the age of 70, the defendants submitted that given the lack of evidence of an intention to work beyond 67, that should be adopted as the relevant retirement age. The defendants then submitted that the outer bounds of the claim were $328,135, reflecting the difference between her pre-accident earnings and her earnings at the date of her resignation ($293.24 per week, multiplier of 1119).
367․The defendants submitted that a greater than usual adjustment for vicissitudes should be made having regard to the prospect that her condition would improve following the completion of the litigation and having regard to the prospect that her pre‑existing conditions would have affected her capacity for employment. The defendants submitted that a discount of 25 percent (rather than the usual 15 percent) should be adopted and hence the figure for future economic loss should be assessed as $246,102 and loss of superannuation assessed as $35,857. Alternatively, although resorting to a buffer should only be done where absolutely necessary, the defendants submitted that a buffer of $250,000 could be allowed.
368․I accept the defendants’ submission that damages should not be assessed on the basis of there being a realistic prospect that Ms Williams would have become a lawyer. Having regard to her limited formal education and complex psychiatric background, I did not consider that the evidence was sufficient to indicate a sufficient prospect of successful completion of the qualifications necessary in order to work as a lawyer.
369․Setting that possibility to one side, that leaves a significant claim for loss of earning capacity. The difficulty for Ms Williams is that, after her resignation from the public service was complete, she expressly maintained a claim for future economic loss based upon the existence of an earning capacity reflecting her earnings as at the date of her resignation in the sum of $328,136 ($293.24 x 1119). To that figure, the usual course would be to apply a 15 percent reduction on account of vicissitudes which would give a figure of $278,916. The course reflected in the statement of particulars may have been adopted because reliance was placed upon Dr Jungfer’s report which assessed future work capacity on that basis. Yet, in final submissions she made a claim based upon a total loss of earning capacity for five years followed by a substantial buffer. The total loss for the initial five year period would be $270,848 ($1037.73 x 261).
370․In my view, having regard to the terms of the statement of particulars and the absence of any application to amend it, Ms Williams is confined to the claim as articulated in that document. That claim accepts a baseline working capacity. An award of damages for the balance of her working life is in one sense generous, because of her complex psychiatric background and the potential that, even if not for the 2018 incident, her background would have affected her earning capacity at some other point in her life. That is best reflected in an increase in the allowance for vicissitudes from 15 percent to 20 percent.
371․The award of damages would be $262,509 ($328,136 x 0.8). Superannuation on that amount calculated at 14.5 percent would be $38,064. This gives a total of $300,573.
Out of pocket expenses
Past out-of-pocket expenses
372․Past out-of-pocket expenses are agreed at $22,751. For reasons which are not clear, the defendants proposed that interest be calculated based upon a rate of 4 percent rather than the Court Procedures Rules rates. As in the case of Mr Glavinic, had this not been a contingent award of damages I would have required further submissions from the parties on this issue.
Future out-of-pocket expenses
373․Dr Jungfer recommended future treatment as follows:
(a)20 sessions of clinical psychology support at $300 per hour; and
(b)two years of pharmacotherapy ($100 per month) reviewed by a psychiatrist every two months ($395 per session).
374․These give totals of $6000 and $7140 respectively, a total of $13,140.
375․In her submissions, Ms Williams did not repeat the claims documented in her statement of particulars for general practitioner costs in the future of $4141 and a buffer of $10,000 for medication in the future. The defendants do not disagree with these components of damages. However, given that those claims were not repeated in the final submissions and her psychiatric condition is fully explored in the report of Dr Jungfer, those amounts would not be awarded. The award would be the amount of $13,140 recommended by Dr Jungfer.
Domestic assistance
376․No claim is made for domestic assistance.
Aggravated and exemplary damages
377․Ms Williams submitted that an award of $50,000 for aggravated damages should be made having regard to the fact that the assault on Mr Glavinic occurred in her home, that the trespass involved the use of force and was against the express refusal of Mr Glavinic, that she witnessed the violent incident and that she was subject to “a prolonged interview whilst having no sleep and experiencing the effects of her alcohol and drug consumption”.
378․I do not consider that any additional award of aggravated damages is necessary. I have taken into account each of the matters referred to as part of the assessment of general damages.
379․Ms Williams submitted that she had been exposed to conduct involving a “high‑handed and contumelious disregard for her well-being” and that the police officers had forced entry to the premises “on untrue grounds and in a callous, high-handed and arrogant fashion”. She submitted that an award of $50,000 for exemplary damages should be made.
380․For the reasons given earlier in relation to Mr Glavinic, I do not consider that an award of exemplary damages is appropriate in the present case.
Summary
Component Amount Damages for trespass $5000 General damages $160,000 Interest on general damages $8640 Past economic loss $40,041 Interest on past economic loss $5601 Future economic loss $300,573 Past out-of-pocket expenses $22,751 Interest on past out-of-pocket Not calculated Future out-of-pocket expenses $13,140 Total $555,746.00
Contingent assessment of damages – Carol Glavinic
Introduction
381․Mrs Glavinic was 64 years old at the time of trial and judgment. She came to Australia with her parents from Croatia at the age of 13. She completed Year 10 and did a secretarial course at the Canberra Institute of Technology. She worked at the Canberra Hospital and subsequently qualified as a nurse. She worked as a nurse for five years. She ceased paid employment when she had her first child in 1983. After her children had commenced school, she did administrative work in her husband’s painting business. That continued up until 2013 when she was divorced from her husband. After the divorce she lived with her son from time to time. In 2016, her son’s ex-wife moved with the children to Melbourne. Mrs Glavinic moved there too. She did a course in aged care in order to be able to establish herself in employment. She returned to Canberra in 2016 because her grandchildren came back to Canberra. She then got a job with Goodwin Aged Care Services assisting people living in the community.
382․She described herself as being in a state of shock when witnessing the events. She thought her son had died as a result of the altercation with police. She cleaned up the blood after police had left. She found it distressing to visit her son when he was in hospital and in prison. She said that the incident left her feeling that “all the joy is gone”. At the time of the 2018 incident, she was doing sleepover shifts with a single client who was bedridden. That continued for about a year until the client died. She then had to go and visit a number of different clients in the community. She found this very stressful and tiring. She described being traumatised by what happened and being unable to switch off her mind and fall asleep. She described being exhausted and said that simple tasks became a lot harder than before. She became fearful of making medication errors. She ceased working in aged care in 2022. She currently receives a disability support payment. Her social life has become more restricted, and she no longer attends church, but she is still able to socialise at clubs on a reasonably regular basis.
General damages
383․Consistent with the observations made by Dr Jungfer, the evidence given by Mrs Glavinic was characterised by a degree of vagueness. She was not very articulate, particularly in relation to explaining the reasons for the impact of the 2018 incident upon her. However, I generally accept her evidence and consider the evidence given by Dr Jungfer on the basis of what she was told by Mrs Glavinic to be reliable. There was, however, evidence that cast some doubt upon the extent of Mrs Glavinic’s self-isolation, in particular evidence that she went to clubs more often than she indicated in her oral evidence. Consistently with the evidence of Dr Jungfer, there is a prospect that following the completion of the litigation and with some treatment, Mrs Glavinic’s condition will improve. However, having regard to her age and the likely continuation, to some degree, of her PTSD and depression, it is unlikely that she will return to paid employment prior to the date on which she would have retired in any event.
384․Dr Jungfer diagnosed Mrs Glavinic with PTSD and a major depressive illness. The PTSD was severe, the major depressive illness was moderately severe. She described major depressive illness as a common complication of PTSD. These conditions emerged in the weeks and months following the incident and have persisted, not responding to the treatment that she had received. She noted that Mrs Glavinic does not appear to have had extensive treatment and hence left open the possibility that there may be a change in her symptoms with such treatment.
385․I would have assessed general damages at $120,000.
386․Attributing half of this amount to the past and half the future gives an award of interest of $6480 (5.4 x 0.02 x 60,000).
Economic loss
Past economic loss
387․So far as the past is concerned, Mrs Glavinic gave evidence that after the single client who she cared for overnight died, she attempted to return to more general work with Goodwin Aged Care Services but found that she was unable to do so. She gradually wound back her work hours until ceasing work in 2022. I accept her submission that her cessation of work was caused by the PTSD that she suffered, which in turn was caused by what she witnessed during the 2018 incident.
388․Her net income for the tax years ending in 2017-2021 was as follows:
(a)2018: $40,995;
(b)2019: $50,352;
(c)2020: $48,128;
(d)2021: $16,062; and
(e)2022: $5009.
389․As can be seen, she did not suffer any loss of income prior to the end of the 2020 financial year. Based upon her earning capacity reflected in the 2018 financial year, her loss of income from the end of the 2020 financial year up until the date of judgment is $118,312 (3.4 years x $40,995 - ($16,062 + $5009)). This method of calculating damages is different to (and more favourable to the plaintiff than) that contended for in the plaintiff’s final submissions which were based upon the net difference between earnings over the financial years ending 2018 to date. However, it is within the scope of the statement of particulars and more accurately captures the losses suffered.
390․Loss of superannuation calculated at 11 percent of the assessed loss would be $13,014. This gives a total amount for past loss of wages and superannuation of $131,326. Interest calculated at Court Procedures Rules rates, assuming a uniform rate of loss over the period since July 2020, would be $11,595.
Future economic loss
391․Mrs Glavinic was aged 64 at the date of judgment. On the assumption that she would otherwise have worked until entitled to a Commonwealth age pension, her working life is another three years. It is likely that, had she not suffered from PTSD and depression as a result of witnessing the incident, she would have continued to work. Although she appeared to be relatively frail for her age, having regard to her efforts to re-enter the workforce in 2016, her history of work from that date up until 2022 and the benefit of having an independent income, it is likely that she would have continued that work until entitled to an age pension. In the financial year ending 2018, her earning capacity was $788 per week. She would have maintained that capacity for an additional three years. Given the relatively short period in the future, I would have made a deduction for vicissitudes of 7 percent rather than 15 percent. That would have resulted in an award of damages for loss of wages of $109,472 ($788 x 149.38 x 0.93). Superannuation at 11 percent would add a further $12,042. This gives a total of $121,514.
Out-of-pocket expenses
Past out-of-pocket expenses
392․Past out-of-pocket expenses are agreed at $1580. The parties did not indicate any agreement as to when those expenses were incurred or the extent to which they were covered by Medicare.
393․Although their calculations differed, both the plaintiff and defendants calculated interest at the rate of four percent, the plaintiff over the whole period and the defendants reducing it to two percent to take account of the expenses being incurred over the period rather than at the beginning of the period. The submissions did not address why four percent rather than Court Procedures Rules interest rates would be used. I would have allowed further submissions as to the award of interest.
Future out-of-pocket expenses
394․Dr Jungfer noted that, although Mrs Glavinic had been seen by a psychologist and psychiatrists, she had not received comprehensive trauma therapy nor an extensive trial of various antidepressant agents. So far as future treatment was concerned, she said:
(a)It is possible that Mrs Glavinic would benefit from an inpatient program, although this may result in her being exposed to police who are also participating in such a program.
(b)Mrs Glavinic should see a psychologist who can offer treatment such as eye movement desensitisation, reprocessing and cognitive schemata therapy. The cost of this would be 30 sessions at approximately $300 per consultation.
(c)So far as pharmacotherapy was concerned, she suggested fortnightly appointments with a psychiatrist for six months and then, once stable, two monthly appointments for a further 18 months.
395․In final submissions, Mrs Glavinic claimed the following components of an award for future out-of-pocket expenses:
(a)$9000 for 30 sessions with a psychologist ($300 x 30);
(b)$8670 for fortnightly treatment by a psychiatrist for six months;
(c)$3962 for treatment by a psychiatrist every two months for a further 18 months;
(d)a buffer of $5000 as an estimate for inpatient treatment;
(e)a buffer of $2562 for one or two additional general practitioner visits per year for the balance of her life; and
(f)a buffer of $10,000 for the cost of ongoing pharmacotherapy.
396․The defendants did not dispute items (a), (e) or (f).
397․The calculations for (b), (c) and (e) incorporated multipliers based upon a three percent discount rate as well as a 15 percent reduction for vicissitudes. So far as any discount for vicissitudes was concerned, in their calculations the defendants made no such reduction. Such a reduction appears to be inconsistent with the judgment of Windeyer J in Bresatz v Przibilla (1962) 108 CLR 541 at 546, and of Gibbs and Stephen JJ in Sharman v Evans (1977) 138 CLR 563 at 587.
398․My conclusions on these claims are as follows.
(a)The amount of $9000 for 30 psychological sessions is consistent with the recommendation of Dr Jungfer and not disputed by the defendants. It would be allowed.
(b)The amount of $8670 for treatment by a psychiatrist is based upon the recommendation of Dr Jungfer of intensive treatment by a psychiatrist in the first six months of the two year period. Having regard to the modest period into the future, I would simply calculate it in today’s dollars and without a reduction for vicissitudes. The evidence disclosed a cost of $395 per consultation and hence, notwithstanding the claim of $8670, the award would be $5135 (13 x $395).
(c)The amount for treatment by a psychiatrist in the balance of the two-year period is consistent with the recommendation of Dr Jungfer and not disputed by the defendants. The figure would be $3555 (9 x $395).
(d)I would make no allowance for the possibility of inpatient treatment having regard to the qualified nature of Dr Jungfer’s recommendation and the absence of any evidence as to the cost of such a program.
(e)The need for some additional general practitioner visits is consistent with Dr Jungfer’s recommendation that once a drug regime has been established and stabilised under the consultation of a psychiatrist, the management of those drugs be conducted by Mrs Glavinic’s general practitioner. The claimed amount of $2562 is appropriate.
(f)The amount of $10,000 must be understood as including the drugs to be taken during the two-year period subject to supervision by the psychiatrist the subject of (b) and (c) above as the cost of those drugs are not claimed elsewhere. The defendants do not contest a buffer of this amount and, having regard to the likely need for ongoing drug use, it would be allowed.
399․The total that would be awarded is $30,252.
Domestic assistance
400․In final submissions no claim was made for domestic assistance.
Aggravated and exemplary damages
401․Mrs Glavinic submitted that she was entitled to a “modest” award of aggravated damages because the assault which she witnessed occurred in her home and the trespass to land occurred using force and against the express refusal of Mr Glavinic. The submissions in support of an award of aggravated damages also referred to the descriptions of her demeanour by the police officers who were at the scene of the incident (officers Chapman, Tutt, Boxx, and Edwards). This refers to evidence by a variety of officers that Mrs Glavinic did not appear to react or be upset at the scene of the incident. The submission was made that these are “demeaning descriptions of a woman clearly affected by the shock of the assault on her son”. I do not accept that these are demeaning descriptions of what the officers observed. In my view, they were honest recollections of an unusual feature of her demeanour in the circumstances.
402․In my view, the circumstances do not warrant any award of aggravated damages in addition to the award of general damages referred to earlier.
403․So far as exemplary damages are concerned, Mrs Glavinic submitted that the defendants forced entry “on untrue grounds and in a callous, high-handed and arrogant fashion”. The submissions also relied upon the observations by police made for the purposes of the criminal proceedings that Mrs Glavinic did not appear to react to what had occurred. This was said to reflect a “freeze reaction” in response to the sudden violent and aggressive actions of police. The significance of the officers’ descriptions of Mrs Glavinic’s conduct or the existence of a “freeze reaction” was not explained.
404․As outlined earlier in these reasons, I do not accept the characterisation of the police officers’ conduct involving callous, high-handed or arrogant conduct. I do not consider the description of Mrs Glavinic’s reaction as being relevant to an award of exemplary damages. I would not have made any award for exemplary damages.
Summary
405․The damages that would have been awarded are summarised as follows:
Component Amount General damages $120,000 Interest on general damages $6480 Past economic loss $131,326 Interest on past economic loss $11,595 Future economic loss $121,514 Past out-of-pocket expenses $1580 Interest on past out-of-pocket Not calculated Future out-of-pocket expenses $30,252 Total $422,747.00
Orders
406․As a result of the defendants succeeding on their limitation defence, judgment must be entered for the defendants in each of the proceedings.
407․Section 435(3) of the Crimes Act provides:
(3)If a verdict passes for the defendant, or the plaintiff becomes nonsuit, or discontinues his or her action after issue joined, or if on demurrer, or otherwise, judgment is given against the plaintiff, the defendant shall recover costs as between solicitor and client.
408․Given the statutory mandate, a costs order to that effect will also be made, but, as the parties have not been heard in relation to costs, an opportunity for further submissions will be provided in case there is some reason why the statutory position should not be applied.
409․Had it not been for the terms of s 435(3), I would have awarded each plaintiff the costs of the hearing on 16 October 2023 and the costs of addressing the jurisdictional point raised by the Commonwealth at that time, including the costs of the written submissions.
410․The orders of the Court are as follows.
411․In proceedings SC 283 of 2021 (Justin Glavinic) the orders of the Court are:
1.Judgment for the defendants.
2.The plaintiff is to pay the defendants’ costs of the proceedings on a solicitor and client basis.
3.Order 2 does not take effect for 14 days and, if any party notifies the associate to Mossop J by email (copied to each other party) that it wishes to be further heard in relation to costs, the order does not take effect until further order of the court.
412․In proceedings SC 285 of 2021 (Carol Glavinic) the orders of the Court are:
1.Judgment for the defendants.
2.The plaintiff is to pay the defendants’ costs of the proceedings on a solicitor and client basis.
3.Order 2 does not take effect for 14 days and, if any party notifies the associate to Mossop J by email (copied to each other party) that it wishes to be further heard in relation to costs, the order does not take effect until further order of the court.
413․In proceedings SC 286 of 2021 (Heather Williams) the orders of the Court are:
1.Judgment for the defendants.
2.The plaintiff is to pay the defendants’ costs of the proceedings on a solicitor and client basis.
3.Order 2 does not take effect for 14 days and, if any party notifies the associate to Mossop J by email (copied to each other party) that it wishes to be further heard in relation to costs, the order does not take effect until further order of the court.
| I certify that the preceding four hundred and thirteen [413] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 1 December 2023 |
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