Hadid v State of New South Wales

[2023] NSWDC 446

District Court

New South Wales

Medium Neutral Citation:

Hadid v State of New South Wales [2023] NSWDC 446

Hearing dates:

18,19 and 20 September and 5 October 2023

Date of orders:

24 October 2023

Decision date:

24 October 2023

Jurisdiction:

Civil

Before:

Weber SC DCJ

Decision:

(1) Judgment and verdict for the defendant against the plaintiff.

(2) The plaintiff pay the defendants costs

Catchwords:

TORTS – Unlawful Imprisonment - Battery – Police use of force in an arrest

Legislation Cited:

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

Cases Cited:

State of New South Wales v Randall (2017) NSWCA 88

Owlstara v State of New South Wales [2020] NSWCA 217

Woodley v Boyd [2001] NSWCA 35

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Plaintiff: Jawad Hadid
Defendant: State of New South Wales

Representation:

Counsel:
Plaintiff: Mr J Sheller SC
Defendant: Mr A Williams

Solicitors:
Plaintiff:
Defendant:

File Number(s):

2022/74026

Publication restriction:

None

JUDGMENT

Introduction

1. The plaintiff in these proceedings is a young man. At the time of the events in question he was 27 years of age. Notwithstanding his relative youth, he had by that time accumulated a lengthy and lamentable criminal history.

2. His criminal antecedents commenced in the Children’s Court and involves assaults, resisting Police, possession of loaded firearms in public places, possession of firearms with altered barrels and supplying indictable quantities of prohibited drugs.

3. By September 2018, the Police had resolved to arrest the plaintiff for various offences, primarily drug related offences. Police were of the view that he was “coordinating a complex drug supply syndicate”, involving methyl amphetamine, cocaine and cannabis (DX1 p.3).

4. The Police Operational Orders designed to affect the safe execution of a search warrant of the premises where he was thought to be living, and to affect his safe arrest, details the considerable planning that went into these tasks (DX1).

5. Police suspected that he was in possession of a firearm (DX1 p.3). Indeed, the Operational Order carried an allegation that the plaintiff had a compartment in the glove box of his vehicle, which was intended to accommodate a pistol (DX1 p.4).

6. The plaintiff at this time was the subject of a Firearm Prohibition Order. Police were also aware of the plaintiff’s propensity to flee from Police to avoid arrest, which propensity had included him driving furiously to avoid arrest.

7. A formal risk assessment was prepared for both the arrest of the plaintiff and the search of his premises in Merrylands West (DX2). This risk assessment made frequent reference to the fact that the Police believed that the plaintiff would likely be armed. It also dealt with the plaintiff's propensity to avoid arrest (p.6). Approaching officers were directed not to affect an arrest while the plaintiff was in his car (p.8). The risk assessment also noted the plaintiff's propensity for violence (p.8).

8. Such was the concern surrounding the risks of the plaintiff’s proposed arrest, that the plaintiff’s physical apprehension would be undertaken by officers of the Bass Hill Enforcement Squad who were tactically trained (TP 142.15 – 23). All Police involved in the arrest operation were directed to wear ballistic vests.

9. Prior to the operation, all of the officers involved attended a briefing at which the plans for the arrest, and its attendant risks were discussed.

The Proposed Arrest

10. The proposed arrest was to take place in Parramatta. The plaintiff at that time was the subject of a community service order which required him to attend on parole authorities at Parramatta for the purpose of undertaking his community service. Police had previously surveilled the plaintiff’s routine in attending to fulfil his parole obligations, and knew where he routinely parked his vehicle for that purpose.

11. The plan was for the tactical Police to affect the arrest after the plaintiff had left his car and before the plaintiff boarded a minibus to attend to his community service obligations.

12. None of the four officers concerned in the proceedings, Detective Senior Constable Chapman, Detective Senior Constable Nunes, Detective Senior Constable (now Detective Sergeant) Middlebrook and Detective Senior Constable McKneight (Chapman, Nunes, Middlebrook and McKneight) were members of the Bass Hill Enforcement Squad. As such they were not taking part in the initial apprehension of the plaintiff, which as I have indicated, was the task assigned to specialist Police squad.

13. Senior Constables McKneight and Middlebrook were designated as part of the search team. Senior Constables Chapman and Nunes were to be the arresting officers, who would attend to the formalities of arrest after the apprehension of the plaintiff by the specialist Police.

14. These officers, however, were to be at the Parramatta site and each was designated as a member of Surveillance Team 2 (DX1 p. 7).

The Proposed Arrest Did Not Occur

15. Notwithstanding the considerable preparation that had gone into the proposed arrest, and no doubt anticlimactically for the Police participants in the plan, the plaintiff failed to attend for his community service.

16. After waiting for a period to confirm that the plaintiff was unlikely to attend, Senior Constable Chapman telephoned his superior Detective Sergeant Malcolm Mowlam, who told Chapman and the other Senior Constables to return to Wetherill Park Police Station, where they would make other arrangements for the plaintiff's arrest (TP 48.28 – 29).

The Arrest

17. The four officers to whom I have referred thus boarded their Police vehicle and were in the process of returning to Wetherill Park Police Station, as they had been directed. They had taken off their ballistic vests for the trip and placed them into the vehicle's boot. Middlebrook and McKneight were in the back seat, Chapman and Nunes were in the front seat, with the latter driving.

18. En route to the Wetherill Park Police Station the four officers were driving along Fowler Rd, Merrylands West, where they passed a tyre shop. As they did so Senior Constable Nunes announced that he had seen the plaintiff's vehicle in the tyre shop. That the Police had thus encountered the plaintiff was thus a complete coincidence.

19. What happened thereafter is to some extent controversial. I shall set out the events which occurred using the Police officers version of those events, and by reference to CCTV footage. I will later deal with the controversies between the parties as to these events.

20. The officers parked their vehicle about 50 metres from the tyre shop and ran to it. Chapman was the first to arrive, followed by Middlebrook. Nunes and McKneight were a little behind.

21. Approaching the entrance to the tyre shop, Chapman had seen either the brake lights or the taillights of the plaintiff's vehicle illuminate. He surmised correctly that the plaintiff was in the driver seat and he accordingly ran to the passenger seat door which he opened. He entered the vehicle. He says that he had his warrant card in his hand, and while attempting to show the plaintiff his warrant card he said words to the effect of “Hadid its Police get out", to which the plaintiff replied, “fuck off I’m not getting out”. An altercation between the two ensued. As the plaintiff's hands were coming towards Chapman's face, he ducked his head down to protect his face and tried to push the plaintiff away from himself (TP 47).

22. In the confusion, Middlebrook had initially also gone to the passenger side of plaintiff's vehicle. When he realised his mistake he ran behind the vehicle to the driver side door, which by that stage had begun to open. He saw Chapman and the plaintiff in a scuffle in the front seat. He says that he then struck the plaintiff in defence of Chapman. He used a technique apparently taught to Police called a “hammer strike”. This involves the Police officer’s fist coming down in a vertical fashion on the target. It is intended to be delivered to the shoulder area of the target.

23. It was not physically possible to deliver a hammer strike to the plaintiff in the manner which I have just described, as he was still seated in the vehicle. Accordingly, Middlebrook delivered the hammer strike at approximately a 45° angle with his right hand. In his right hand Middlebrook was carrying his Police radio. His evidence was uncontradicted, that he was at all times carrying the radio as he ran to the tyre shop, as distinct from arming himself with the radio for the purposes of the hammer strike (TP 144.37 – 38)

24. The hammer strike, while aimed at the plaintiff's shoulder (TP 144.38), appears to have made contact with the plaintiff's head. The plaintiff was later discovered to be bleeding from the left-hand side of his head, and as such, on balance, it is likely that the first hammer strike made contact with the plaintiff's head on the left side. Thereafter, Middlebrook succeeded in extracting the plaintiff from his vehicle, shouting for him to go to the ground so that he could be handcuffed. The plaintiff resisted these demands, and remained upright. Middlebrook continued to apply hammer strikes to the shoulder area, and ultimately the plaintiff's submitted to Chapman's demands that he go to ground.

25. By this stage McKneight and Nunes had arrived to find the plaintiff on the ground struggling with Middlebrook, who was attempting to subdue him with his bodyweight. McKneight joined in this endeavour. The plaintiff was lying on his stomach with his hands underneath his body. Both McKneight and Middlebrook were calling to the plaintiff to present his arms so that he could be handcuffed. The plaintiff was refusing to comply.

26. In the face of this refusal, both officers resorted to what was described as a “knee strikes”. The evidence disclosed that a knee strike was a Police technique which involved a kneeling officer kneeing the target. The rationale of the technique is apparently to cause pain in a different area of the body than that with which the Police were primarily concerned, in order to obtain access to the part of the body required; in this case the plaintiff's arms. The technique was described as a form of distraction. After a short time the use of the knee strikes seemingly succeeded, as the plaintiff produced his hands and was handcuffed behind his body. He was then raised and taken to a low fence where he was seated.

27. In the meantime, Nunes had formally announced the arrest pursuant to Part 15 of the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”), each officer having earlier told the plaintiff that they were Police officers.

28. The officers announced themselves as follows:

1. Chapman at T47:34, T49.24 and T98:20ff.

2. Nunes at T104:30ff.

3. McKneight at T126:27ff.

4. Middlebrook at T147:14ff.

29. When it was first noticed that the plaintiff was bleeding from the head, an ambulance was summoned, and paramedics attended to his injury.

30. The plaintiff was thereafter conveyed to Granville Police Station where he was charged with 16 offences.

31. He pleaded guilty to 14 of those offences, which were variously dealt with in this Court and the Local Court. Two counts of resisting arrest, arising out of the events which I have just described were withdrawn following negotiations between the prosecutors and the plaintiff’s legal representatives.

The CCTV Footage

32. The events at the tyre shop were mostly captured by CCTV footage, which footage unfortunately is of poor quality. This poor quality is exacerbated by the fact that, for reasons which were not clear, Senior Constable Nunes who was tasked with obtaining the footage, was unable to download the CCTV vision, and had to resort to recording the footage from a computer monitor by use of his mobile phone video function. There was also evidence that the vision was sped up from the actual speed of occurrences portrayed, though the extent to which this occurred, and when it occurred was left unclear.

The Plaintiff’s Evidence

33. The plaintiff gave evidence in a manner which suggested to me that he was totally disinterested in the proceedings. This attitude was curious given he is suing the State of New South Wales for damages. His stock answers in chief were “I don't remember” and “I just blacked out”. He frequently and unresponsively answered questions by saying that “I was attacked”.

34. An important aspect of the plaintiff's case was to attack the proposition that upon entering his car, Senior Constable Chapman was set upon by the plaintiff.

35. In chief, the plaintiff stated that he had no memory of what occurred after the passenger door was opened by Chapman (TP 25.19 – 20).

36. Notwithstanding his evidence in chief, when Mr Williams of counsel who appeared for the defendant, asked him about this time his story changed. He denied that Chapman made it known that he was a Police officer. He denied that he said, “fuck off get out”. He denied swinging his arms at Chapman and he denied struggling with Chapman. He denied hitting Chapman. He even denied resisting Police when he had alighted from the car (TP 31 – 32).

37. I found the plaintiff to be an unsatisfactory and unreliable witness.

Credit

38. The plaintiff in his submissions mounted an attack on the credit of the Police officer witnesses. I do not accept the criticisms of the officers evidence upon which those submissions were founded. I found the Police officers to be measured, truthful and reliable. I accept their evidence, and to the extent to which their evidence conflicts with the plaintiff, I accept the Police officers evidence over the plaintiff’s evidence without equivocation.

Pleadings

39. The plaintiff brings these proceedings pleading the following causes of action:

1. Battery

2. Unlawful Imprisonment

3. Malicious prosecution

40. On the second day of the trial, the case in malicious prosecution was abandoned.

Unlawful Imprisonment

41. The plaintiff's case in unlawful imprisonment is that he was unlawfully detained between the time at which he was subdued by Senior Constable Middlebrook, and the time when the formalities of announcing his arrest were attended to by Senior Constable Nunes. On my analysis of the CCTV footage, this would constitute of a period of approximately one minute.

42. The obligation to announce an arrest existed at common law, and has been reflected in statute in Part 15 of LEPRA, which is in the following terms:

Part 15 Safeguards relating to powers

201   Police powers to which this Part applies

(1)   This Part applies to the exercise of the following powers by Police officers—

(a)   a power to stop, search or arrest a person,

(b)   a power to stop or search a vehicle, vessel or aircraft,

(c)   a power to enter or search premises,

(d)   a power to seize property,

(e)   a power to require the disclosure of the identity of a person (including a power to require the removal of a face covering for identification purposes),

(f)   a power to give or make a direction, requirement or request that a person is required to comply with by law,

(g)   a power to establish a crime scene at premises (not being a public place).

This Part applies (subject to subsection (3)) to the exercise of any such power whether or not the power is conferred by this Act.

Note—

This Part extends to special constables exercising any such Police powers—see section 82L of the Police Act 1990. This Part also extends to recognised law enforcement officers (with modifications)— see clause 132B of the Police Regulation 2008.

(2)   This Part does not apply to the exercise of any of the following powers of Police officers—

(a)   a power to enter or search a public place,

(b)   a power conferred by a covert search warrant,

(c)   a power to detain an intoxicated person under Part 16.

(3)   This Part does not apply to the exercise of a power that is conferred by an Act or regulation specified in Schedule 1.

202   Police officers to provide information when exercising powers

(1)   A Police officer who exercises a power to which this Part applies must provide the following to the person subject to the exercise of the power—

(a)   evidence that the Police officer is a Police officer (unless the Police officer is in uniform),

(b)   the name of the Police officer and his or her place of duty,

(c)   the reason for the exercise of the power.

(2)   A Police officer must comply with this section—

(a)   as soon as it is reasonably practicable to do so, or

(b)   in the case of a direction, requirement or request to a single person—before giving or making the direction, requirement or request.

(3)   A direction, requirement or request to a group of persons is not required to be repeated to each person in the group.

(4)   If 2 or more Police officers are exercising a power to which this Part applies, only one officer present is required to comply with this section.

(5)   If a person subject to the exercise of a power to which this Part applies asks a Police officer present for information as to the name of the Police officer and his or her place of duty, the Police officer must give to the person the information requested.

(6)   A Police officer who is exercising more than one power to which this Part applies on a single occasion and in relation to the same person is required to comply with subsection (1)(a) and (b) only once on that occasion.

203   Police officers to give warnings when giving or making directions, requirements or requests that must be complied with

(1)   A Police officer who exercises a power to which this Part applies that consists of a direction, requirement or request must give a warning to the person subject to the exercise of the power that the person is required by law to comply with the direction, requirement or request.

Note—

A failure to comply with the direction, requirement or request does not constitute an offence unless a warning under this section has been given—see section 204B.

(2)   A warning is not required if the person has already complied with or is in the process of complying with the direction, requirement or request.

(3)   A Police officer must comply with this section as soon as is reasonably practicable after the direction, requirement or request is given or made.

(4)   If 2 or more Police officers are exercising a power to which this Part applies, only one officer present is required to comply with this section.

204   Detention period for search of vehicles etc limited

A Police officer who detains a vehicle, vessel or aircraft for a search must not detain the vehicle, vessel or aircraft any longer than is reasonably necessary for the purpose of the search.

204A Validity of exercise of powers

(1)   A failure by a Police officer to comply with an obligation under this Part to provide the name of the Police officer or his or her place of duty when exercising a power to which this Part applies does not render the exercise of the power unlawful or otherwise affect the validity of anything resulting from the exercise of that power.

(2)   Subsection (1) does not apply if the failure to comply occurs after the Police officer was asked for information as to the name of the Police officer or his or her place of duty (as referred to in section 202(5)).

(3)   Subsection (1) does not apply to the exercise of a power that consists of a direction, requirement or request to a single person.

204B Commission of offence in relation to exercise of powers where failure by Police officer to comply with this Part

(1)   A person does not commit an offence under this Act of failing to comply with a direction, requirement or request given or made by a Police officer under or in connection with a power to which this Part applies unless the obligations under this Part are complied with when exercising the power.

(2)   Subsection (1) does not apply to a failure by a Police officer to comply with an obligation under this Part that does not render the exercise of the power by the officer unlawful because of section 204A.

43. There is doubt as to whether compliance with section 202 of LEPRA is a necessary precondition for the exercise of the power of arrest (State of New South Wales v Randall (2017) NSWCA 88 per Basten JA at [32]).

43. I do not consider that it is necessary for me to enter into that question, as in my view, the obligations which fell on the Police pursuant to section 202 of LEPRA needed only be satisfied “as soon as it is reasonably practicable to do so” (LEPRA s 202 (2) (a)). Given the violent nature of the arrest of the plaintiff, and his considerable resistance to that arrest, I consider that the arrest was announced as soon as was reasonably practicable to do so, and thus there was no period of false imprisonment.

Battery

45. The real battleground in these proceedings, was the case pleaded in battery. The plaintiff in his submissions identified the alleged incidents of battery as follows:

1. By Senior Constable Middlebrook (“Middlebrook”) on approximately 10 occasions. There appears to have been one strike in the area of Mr. Hadid’s ear, five strikes to his upper back and four knee strikes.

2. By the placement of Middlebrook’s weight on Mr Hadid’s body while he was lying on the ground.

3. By Senior Constable McKneight through a combination of the placement of McKneight’s bodyweight on Mr Hadid while he was lying on the ground and the administration of a knee strike to his side; and

4. By then Senior Constable Nunes (“Nunes”) through the taking of the whole of his upper body, the placement of bodyweight on him on the ground and handcuffing of him.

46. Absent justification, the actions upon which the plaintiffs rely would constitute battery. The onus thus is on the defendant to justify those actions.

47. This in turn will involve consideration of s 230 and 231 of LEPRA, which are in the following terms:

230   Use of force generally by Police officers

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

231   Use of force in making an arrest

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

48. I note that there are conflicting views in the Court of Appeal as to the manner of interaction between section 230 and 231 of LEPRA (see for example Owlstara v State of New South Wales [2020] NSWCA 217 by Basten JA at [9]-[12]).

49. I do not consider that it is necessary to enter into the that debate, as I am of the view that regardless of whether defendant relies on section 230 or 231, the force used by the officers in affecting the plaintiff's arrest was reasonably necessary.

50. In my view, the Police actions the subject of the plaintiff’s battery claim were reasonably necessary actions taken in affecting the arrest per se, but also, and especially in the case of Middlebrook's hammer strikes of the plaintiff while he was in the car, in defence of another; namely, Senior Constable Chapman.

51. In this regard the plaintiff contended that there was no scuffle between himself and Senior Constable Chapman after the latter entered into his vehicle. His Senior Counsel submits that the CCTV footage does not support the proposition that the two were engaged in a physical altercation.

52. I do not accept this. The CCTV footage is not clear, but to the extent that it shows anything relevant to this issue, it does tend to show the plaintiff's arms flailing at Senior Constable Chapman (See Video 3315 of PX4 at 0:06)

53. Mr Sheller SC who appeared for the plaintiff, challenged Chapman's evidence as to what occurred in the vehicle. He says that the events as relayed by Chapman, simply could not have occurred in the limited time in which both men were in the front seat of the car. I do not accept this submission. The flaw in this submission is that it assumes that each of the actions described by Chapman had to be performed in a seriatim fashion. In reality, several of the actions and statements which Chapman says occurred could have occurred simultaneously or virtually simultaneously.

54. Given that a stranger had leapt into the passenger seat of his car announcing that he was a Police officer, and given the plaintiff's propensity to flee to avoid arrest, to my mind it is glaringly improbable that the plaintiff would not physically engage with the intruder.

55. I should add that as I have earlier indicated, I accept the evidence of Senior Constable Chapman and Senior Constable Middlebrook as to what occurred in the vehicle in preference to that of the plaintiff.

56. Mr Sheller SC also submitted that the fact that Middlebrook’s first hammer strike seems to have connected with the left side of the plaintiff’s head, proved that the plaintiff could not have been grappling with Chapman. He says that the injury suggests that the plaintiff was facing away from Chapman at the time of the blow.

57. I also do not accept this submission. It assumes that at the time of the first hammer strike the plaintiff was in a static position ignoring Chapman, looking forward and turning his head towards Middlebrook. In my view, it is more likely that the plaintiff while he was struggling with Chapman became aware of a second stranger opening the driver’s side door, an event which was happening to his right, he momentarily looked to the right, thus exposing the left side of his head at the time Middlebrook landed the first hammer strike. Thus the injury to the left side of the plaintiff’s head, to my mind does not establish that he was not struggling with Chapman.

58. I find that the situation confronting Senior Constable Middlebrook when he struck the plaintiff while he was in the vehicle, was that his colleague Chapman was engaged in a physical altercation, in a confined space, with a dangerous man. I find that these strikes were made in defence of Chapman, and that the force used was proportional to the situation as he saw it. I also consider that his actions were reasonably necessary to affect the arrest of the plaintiff.

59. In this regard, I should also reiterate that it was never suggested to Senior Constable Middlebrook that he had armed himself with the Police radio which he was carrying. Rather the evidence was clear that the radio happened to be in his right hand, as that was how he was carrying it as he ran from the Police car to the tyre shop.

The Plaintiff’s Approach Generally

60. The plaintiff's analysis of the events in question was described by Mr Williams of counsel, who appeared for the defendant, as being “reductionist”. I believe that description is apt. Mr Sheller analysed each individual incident of alleged battery separately, as if they were unrelated, asserting that in each individual case the action taken by the relevant Police officer could not be justified.

61. I do not consider that this is the appropriate approach.

62. In my view, the correct approach is to consider the actions of the Police in their totality, not individually, and to do so by reference to the context in which they occurred, as disclosed by the CCTV footage. As Heydon JA observed, the Police actions must be judged by reference to “the pressure of events and the agony of the moment, and not by reference to hindsight” (See Woodley v Boyd [2001] NSWCA 35, in detail whereat his honour states, at [37]).

63. I believe that it is helpful to cite what his Honour stated in that regard in more detail:

According to some writers, at common law, which applies in New South Wales, a person effecting an arrest may use whatever force is “reasonable” in the circumstances (Archbold: Criminal Pleading Evidence and Practice 2000 para 19-39) or “reasonably necessary” (Wiltshire v Barrett [1966] 1 QB 312 at 326 and 331). “Thus if the arrestee offered resistance, the arrestor could increase his force in proportion to the force of that resistance”: R W Harding, The Law of Arrest in Australia (eds Duncan Chappell and Paul Wilson) The Australian Criminal Justice System (2nd ed, Butterworths, 1977) p 254. A more elaborate test has been propounded in the context of whether the killing of a felon in the course of committing a felony is a justifiable homicide, or manslaughter, or murder. It was put thus by the Full Court in R v Turner [1962] VR 30 at 36:

“When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (i.e. the commission of a felony or the escape of the felon).”

It may perhaps be questioned whether the tests stated apply where the arresting party causes injury to the arrested party, as distinct from death. However, for present purposes it is convenient to assume, as counsel for both the plaintiff and the defendants did, that R v Turner states the law in that context as well. In evaluating what is reasonable, necessary or reasonably necessary the duties of Police officers must be remembered. In Lindley v Rutter [1981] QB 128 at 134 Donaldson LJ said:

“It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case.”

The same duties and considerations apply where a Police officer is deciding how to effect an arrest. And, in evaluating the Police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J said:

“[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the Police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.”

64. It is thus well to recapitulate the features of the situation with which the four officers were confronted with no warning. They had attended a failed attempt to arrest the plaintiff, which was the subject of elaborate planning and risk assessment.

65. They knew that the plaintiff was dangerous. They knew that he may well be armed. They knew that Police intelligence disclosed the belief that he may have a pistol in his car's glovebox.

66. They also knew that the plaintiff had a history of fleeing Police by speeding off in a motor vehicle.

67. They knew that their superiors were of the view that at the point of arrest the plaintiff constituted such a risk to Police and the general public that his apprehension and arrest were to be affected by specialist, tactically trained Police. In other words they knew, that in the view of their superiors, they were not equipped to run that risk themselves.

68. Notwithstanding this, when they happened upon the plaintiff, they decided to take that very risk themselves. They were also directed to wear ballistic vests at the abortive Parramatta arrest, but had stowed them in the Police car's boot where they remained as they ran to the tyre shop. Accordingly they did not have the protection of the ballistic vests which the risk analysis deemed to be necessary.

69. Chapman’s actions in jumping into the passenger seat of the plaintiff's vehicle were brave, arguably his actions could be described as what is sometimes referred to as “crazy brave”. His actions placed himself in a perilous situation where an altercation in close confines with a dangerous man, who may have been armed, was virtually inevitable.

70. Chapman also placed himself at risk of the plaintiff speeding off with him still inside the vehicle, and as such constituting a clear danger both to Chapman himself and to the general public.

71. His colleagues and more specifically Senior Constable Middlebrook knew these things, thus they knew the danger to which they were all exposed, especially Senior Constable Chapman. Middlebrook felt compelled to come to Chapman's aid and acted in defence of Chapman.

72. The subsequent acts to subdue the plaintiff in my view were all reasonable in order to affect the arrest of a dangerous arrestee who was vigorously resisting that arrest. It is well to note that as soon as the plaintiff had been subdued and handcuffed, he was taken to his feet with care, and allowed to sit on a low fence. When his injuries became apparent treatment was immediately sought and obtained from paramedics.

73. There can be no doubt that the CCTV footage of what occurred is confronting. In my view however, the predicament facing the Police officers at virtually no notice was equally confronting.

74. In my view, the actions of the Police viewed by reference to the “the pressure of events and the agony of the moment” were reasonably necessary.

75. As such, the defendant has discharged the onus of justifying what otherwise would have constituted incidents of battery.

Conclusion

76. Accordingly there should be judgment for the defendant with costs.

Orders

1. Judgment and verdict for the defendant against the plaintiff.

2. The plaintiff pay the defendants costs

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Decision last updated: 30 October 2023