Hage-Ali v State of NSW - [2009] NSWDC 266

CITATION: Hage-Ali v State of New South Wales [2009] NSWDC 266

HEARING DATE(S): 8/12/08-12/12/08, 17/12/08, 30/3/09-3/4/09, 6/4/09-7/4/09, 4/5/09, 1/7/09, 21/9/09-24/9/09

JUDGMENT DATE:
14 October 2009

JURISDICTION: Civil

JUDGMENT OF: Elkaim SC DCJ

DECISION: See paragraph 259

CATCHWORDS: Wrongful arrest - Imprisonment for collateral purpose

LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Law Enforcement (Powers and Responsibilities) Act 2002

CASES CITED: Andrews v New South Wales (2004) 1 DCLR 230
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Corby v State of New South Wales [2009] NSWDC 117
Coyle v State of New South Wales [2006] NSWCA 95
Houda v State of New South Wales [2005] NSWSC 1053
Mason v Demasi [2009] NSWCA 227.
New South Wales v Ibbett (2006) 229 CLR 638
New South Wales v Riley (2003) 57 NSWLR 496
Re Bolton; ex parte Beane (1987) 162 CLR 514
Sangha v Baxter [2007] NSWCA 264
Sangha v Baxter [2009] NSWCA 78
State of New South Wales v Ibbett (2005) 65 NSWLR 168

PARTIES: Iktimal Hage-Ali (Plaintiff)
State of New South Wales (Defendant)

FILE NUMBER(S): 1883/07

COUNSEL: G Melick SC and J Sheller (Plaintiff)
P Bodor QC and P Saidi (Defendant)

SOLICITORS: Greg Walsh Solicitor (Plaintiff)
Crown Solicitor’s Office (Defendant)

1. On 30 November 2006 the plaintiff was named the Young Australian of the Year for New South Wales. She was a bright young star whose luminescence was predicted to grow with the National Award on Australia Day 2007.

2. On 14 December 2006 she relinquished her briefly held title. She did so because on the previous day the press revealed that some weeks earlier, specifically on 22 November 2006, the plaintiff had been arrested in the course of a police anti-drugs operation. The plaintiff descended from heroine to “the centre of a cocaine scandal” (The Daily Telegraph, Exhibit E, page140).

3. Following her arrest, for the supply of cocaine, the plaintiff was detained for about 3 ½ hours and then released without charge. She has never since been charged.

Issues and preliminary comments

4. The plaintiff says her arrest was unlawful and so too was her subsequent detention, albeit for only a few hours. More specifically, the plaintiff alleged the following:-

(a) There was no basis to properly arrest her, for any offence.

(b) Once arrested she was improperly questioned for a collateral purpose, namely to gain information into a drug ring.

(c) The plaintiff, having been arrested, was subjected to threats, ridicule and intimidation.

5. The plaintiff’s case thus started with two legs; firstly an unlawful arrest, including a consequential unlawful detention, and secondly an unlawful detention in its own right. The second leg was abandoned in final submissions. What happened at the police station remained relevant on some issues of credit, but mostly for the assessment of any damages.

6. The defendant, for its part, said that the arrest was part of the legitimate activities of a NSW Police Strike Force named ‘Kirban’ which was investigating drug supply in and around the area where the plaintiff resided. The strike force was part of the Middle Eastern Organised Crime Squad (“MEOCS”).

7. The starting point was the unlawful conduct of the plaintiff. The defendant relied on legally obtained voice and text messages which indicated the plaintiff was involved in the purchase of drugs, both for herself and, ostensibly, for others.

8. The defendant said that during the plaintiff’s detention she was treated appropriately having regard to the evidence upon which she had been arrested. To this end I was shown a taped record of interview (an ERISP) said to depict a willing and co-operative plaintiff displaying no signs of having been coerced or intimidated and, in fact, going out of her way to co-operate. At the request of the parties I have again watched the ERISP. I agree with the defendant’s description of the tape. I also agree with the plaintiff’s submission that it shows a young woman at times obviously distressed.

9. The abandonment of the second leg of the plaintiff’s case left one major liability issue: Was her arrest unlawful? The defendant accepted it had the onus to establish the arrest was lawful. Resolution of this issue depended on compliance, or otherwise, with Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA):

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

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

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

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

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

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

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

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

(c) to prevent the concealment, loss or destruction of evidence relating to the offence,

(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,

(e) to prevent the fabrication of evidence in respect of the offence,

(f) to preserve the safety or welfare of the person.

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

10. It is compliance with subsection (3) that is at the centre of this case. The defendant says that its obligation was met through purposes (a), (b) and (c) and possibly also (e) although the latter probably is an overlap with (c).

11. Three levels of possible compliance with Section 99(3) were argued:-

A. By the arresting officer, knowing only that a serious offence had been committed, relying on her (in this case) experience of such offences, having a reasonable suspicion that an arrest necessarily entails achieving one of the purposes in Section 99(3). At this level information personal to the person arrested is not required. An example is: Any person who supplies illegal drugs can be arrested because there is always a risk that such a person will not appear at court, or will re-offend, destroy evidence, etc.

B. By the arresting officer relying on an informed decision made by a superior officer, providing the superior officer told the arresting officer of the justification for the arrest.

12. The defendant submitted that it succeeds in this case on all three levels.

13. The plaintiff says that Section 99(3) can only be complied with at the third level. She then says that the evidence does not establish the making of the relevant decision, in particular because the arresting officer had no information about the plaintiff to enable the officer to suspect “on reasonable grounds that it (was) necessary to arrest” the plaintiff to achieve any of the listed purposes.

14. By the end of the hearing the defendant’s submission was that there were two arresting officers, namely Detective Dale and Sergeant Dyson. It said that only one of the officers needed to comply with Section 99(3). The plaintiff did not contest that, in theory, there could be more than one arresting officer, but submitted that, in such a circumstance, each officer needed to individually comply with the section.

15. In relation to damages, the plaintiff said these should be substantial and have the following components:

(a) General damages assessed at Common Law.

(b) Economic loss, also assessed at Common Law.

(c) Aggravated damages.
(d) Exemplary damages.

16. The defendant’s response on damages had these ingredients:

(a) Compensatory damages were precluded by Section 54 of the Civil Liability Act 2002 (“CLA”).

(b) If the Section 54 argument failed:

(i) General damages should be minimal (less than $5,000).

(ii) There should be no economic loss.

(iii) Absent a finding of intentional wrongdoing, damages should be assessed under the CLA (because of Section 3B).

(c) There could be no aggravated or exemplary damages without a finding of malicious conduct.

17. In establishing its case the defendant mounted a very strong attack on the plaintiff’s credit. The defendant’s written submissions on liability concluded with this remark:

“The Plaintiff is a manipulative disingenuous woman with very little credit, who from the very beginning of this incident was concerned only with her view of how she ought to have been treated.”

18. When these submissions were prepared the defendant was unaware that the plaintiff had abandoned the second leg of her liability case. The plaintiff’s credit is certainly important to the damages claim, and would also have been in the ‘second leg’ case, but it is of much less importance to whether her arrest complied with Section 99(3).

The start of the hearing

19. The proceedings before me commenced with a Notice of Motion in which the plaintiff sought a non-publication order because she was concerned that her identification might lead to her physical safety being compromised. The plaintiff left Australia at the end of 2006 and took up residence in Dubai where she remains and is employed. The source of the danger that she anticipated was a person who I will refer to as Mr ‘B’. I do so in the interests of the plaintiff’s security. Mr B was also arrested on 22 November 2006.

20. I understood that Mr B, at some stage in the proceedings against him, was shown the plaintiff’s record of interview, or at least a transcript of it, and that he later entered a guilty plea. I do not know that the reason he did not contest the allegations against him was because of the plaintiff’s evidence. Inspector Patton said there was a strong case against him even without help from the plaintiff.

21. The plaintiff’s Notice of Motion sought an order under Section 72 of the Civil Procedure Act 2005. She relied upon an affidavit she had sworn on 22 November 2008. Significant portions of the affidavit were objected to and I gave a judgment on their admissibility on 9 December 2008. The result was that other than paragraph 13, which was not pressed, the whole of the affidavit was admitted.

22. The plaintiff was cross examined on her affidavit by junior counsel for the defendant. The defendant was represented in the trial by both senior and junior counsel. The Notice of Motion, however, was conducted on behalf of the defendant by junior counsel. The result was that the plaintiff was ultimately cross examined by both of the defendant’s counsel.

23. There was never any suggestion that her cross examination by different counsel was unfair. It did, however, give me the opportunity to observe the plaintiff under cross examination from two experienced barristers whose cross examination style was very different. I said, at page 5, of the judgment I gave on 9 December 2008 that the plaintiff had endured a vigorous cross examination. I also said this:-

24. I was at pains to include the above comment in my earlier judgment in case either side was concerned that I entered the substantive hearing with a view on the plaintiff’s credit which might affect its willingness for me to continue to hear the matter. No objection was taken.

25. When the plaintiff was cross examined by senior counsel the style was more subtle but equally probing and incisive. Every barrister has his or her own style of cross examining and the direct or the subtle will meet with varying success on different occasions. I do not mean these comments as any criticism of either of the counsel that cross examined the plaintiff but rather as a background to the comments I will make below about her credit.

26. The task of assessing the plaintiff’s credit was complicated by the plaintiff having, on her own admission, told lies to a range of people, from the dealer from whom she purchased cocaine to the police who interviewed her following her arrest. The concerted attack on her credit in cross examination meant that I needed to carefully analyse her evidence in the witness box to see if she was being honest or interspersing her evidence with the same lack of honesty that characterised her dealings with others, including persons in authority.

27. A particularly large part of the attack on the plaintiff arose from comments she made to a Dr Roberts in October 2007 (Exhibit 17). The doctor, a psychiatrist, did not give evidence. The history based attack must be treated with some caution, for the reasons given by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 and Mason v Demasi [2009] NSWCA 227.

28. The evidence, both oral and written, used in the Notice of Motion became evidence in the substantive proceedings.

The plaintiff’s background

29. The plaintiff was born into the Muslim faith. She is now almost 26 years of age. Other than being aware that she had at least one brother and one sister, I am not otherwise aware of the size of her family. I am also not aware of the degree of religious observance practised by her family, although I gathered that her father was perhaps more religious than her mother. I am also not entirely clear about the plaintiff’s level of observance. She did not dress in the manner that I understand a religious Muslim woman might, but that is not to say that she was not otherwise a devout and practising young Muslim. She certainly did not hide her faith and, in fact, part of the background to the award was her work for the Muslim community.

30. I am not sure what level of schooling the plaintiff achieved but she began working in the NSW Public Service when she was 17. She worked with her local member of parliament and she was a trainee at the NSW Commission for Children and Young People in Community Education. She also worked in the Premier’s Department, in the Department of Community Services and also at Corrective Services. In September 2006 she commenced working in the Attorney General’s Department as a Project Officer earning about $70,000 (gross) per annum. Her immediate supervisor was a Mr Michael Talbot who, in November 2006, was the Assistant Director General of that Department, in charge of Corporate Services.

31. Since the age of 15 the plaintiff had worked, voluntarily, with the local police and Community Youth Club and she had been involved in assorted Government boards and committees. Her philanthropic deeds formed the background to her award as NSW Young Australian of the Year. She was ostensibly a very impressive young woman.

The plaintiff’s drug use

32. The plaintiff first tried cocaine in 2004. She said her use of it was infrequent until late in 2006. It was at this time that she restarted an association with a primary school friend, Mr B. He was a supplier of cocaine and she became a frequent customer. I could not say she was, from a technical point of view, addicted but there were some indications in the evidence that she was a regular user. The plaintiff said in her evidence that she became a heavy user at a time when she was depressed. She gave this evidence about her depression:-

“Q. The second half of 2006. Could you just tell the court.
A. Yes, sir. A number of reasons, sir. My father and my brother weren't too happy about me speaking on Muslim issues. I've always spoken far too much. My family wasn't too happy with the guy I wanted to marry, sir, so there was some talks about that.

Q. Was there any particular reason?
A. They didn’t approve of him, sir. Parents hardly ever approve of their daughter’s partners, sir. My mother’s sister had died and we weren't on the best terms then, sir, and so it was quite difficult for me to see her being upset with me because of my boyfriend at the time and not being able to help her, sir. So they were just - by themselves may not seem as big but together were--

Q. Do you recall when your mother's sister had died?

A. It was winter 2006, sir.”

33. In cross examination the plaintiff said that when she was 17 or 18 she had amphetamines, but only once. Her more regular drug use started in 2006 after she rekindled her friendship with Mr B. She socialised with Mr B on some occasions and became aware that he could supply her with drugs. A code was developed to mask the illicit purchases. For example, on 22 August 2006 the plaintiff sent a text message to Mr B which read “I’d return the dress if I were you, babe. No good. Reply to my number, not this, or call. First dress was heaps better.” (T 155.12). The plaintiff said that the message indicated that some recently supplied cocaine was of a poor quality and that an earlier supply was better.

34. The plaintiff said that Mr B was the only person from whom she purchased drugs, but that there were many such purchases and communications associated with them. The majority of these were by text message, but there were also some phone calls. Some of these phone calls were the subject of a recording (Exhibit 10).

35. The plaintiff said that her drug use continued until she was arrested on 22 November 2006. She denied that she was an addict. She did, however, concede that she found “it necessary at times to lie to (MrB) to get drugs”. She further agreed that, to an extent, she had lied so she could get the drugs on credit. She also lied because she did not want Mr B to think she was consuming drugs during the Muslim observance of Ramadan. The plaintiff said that by the time of her arrest she had a high profile, she had a good job with a “fabulous boss” and she was “happy”. The presentation of the NSW Young Australian of the Year was on 30 November 2006. The award was presented at the Cronulla Surf Club.

36. The plaintiff was cross examined on the apparent inconsistency between her happiness and her allegation that she was taking drugs because she was depressed. The plaintiff said she had been depressed for a few years. The depression seems to have arisen from conflicts within her family.

37. The plaintiff denied supplying drugs to her sister, or in fact to anybody else. Her conversations with Mr B which suggested that she was going to provide drugs to other persons were a ruse to obtain extra drugs from him for her own use.

The arrest and arrival at Bankstown Police Station

38. The police officers featuring most in the relevant events were Detective Inspector Stephen Patton, Detective Aaron Phillips, Detective Kelly Dale and Sergeant Belinda Dyson. Their ranks have changed over the years so, for convenience, and without any disrespect for the officers, I will refer to them by their surnames alone. This approach was also taken by senior counsel for the defendant in submissions.

39. At about 7am on 22 November 2006 the plaintiff said there was a knock on her door. She lived at home and the enquiry was answered by her mother. The plaintiff then “jumped out of bed” and went to the front door. She spoke to a female officer who identified herself as being from the Middle Eastern Organised Crime Squad. She asked the officer to wait outside while she changed and obtained her cigarettes. The policewoman’s response was “that we needed to talk at the station, because I was under arrest” (T 127.41). The plaintiff said she was not told directly why she was under arrest but her mother had been told it was in respect of the supply of cocaine.

40. The plaintiff said she then went back to her room to get changed but noticed the policewoman had followed her into her bedroom. Soon thereafter she went into a police car and was transported to Bankstown Police Station. During the journey the policewoman asked for her wallet and phone but there was no other conversation. Besides the female officer there were also two male officers in the car.

41. On arrival at the police station the female officer left with the plaintiff’s belongings and she remained in the car with the two male officers. According to the plaintiff the officers were talking amongst themselves apparently complaining that other policemen were sitting idle inside the station. The plaintiff then described the next event in this way:-

“A. There was a paddy wagon that was parked in front of our car that was waiting to go underneath the police station, and there was someone in the back of that paddy wagon that was screaming and banging him or herself against the wall. There was a police officer, had got out of the driver's seat and banged on the back of the paddy wagon which made the person in the back scream even louder. I hadn't seen that before and I was quite terrified. So, I asked the officers in front whether I was going to be put in the same place as him, or whoever was in the back of that car to which the driver of the police car answered that I was just like him so what difference would it make whether I was put with him or not.”

No challenge was made to this evidence. Neither of the officers was called to refute the plaintiff’s allegation.

42. A little later two non-uniformed police officers asked her to get out of the car. They identified themselves as Aaron Phillips and Steve Patton. The latter officer then said the following to the plaintiff:-

“A. Okay. Patton said to me, to the best of my recollection, that I had been brought to the station because I was going to be charged with supplying cocaine. He continued along the lines that they were not taking me downstairs to be processed because three other accused were arrested that morning from Telopea Street and that he was of the belief if I was put downstairs with them that I could potentially be in danger. He also used the word “profile”.”

43. The plaintiff was asked to expand on her reference to the word “profile” and she said:-

“A. --by saying - please let me continue. "I am aware that you currently work in the Attorney General's department and that you were a finalist for the New South Wales Young Australian of the Year" to which I replied, "Yes." Patton then continued to say that now that I had been arrested that it was in my best interest to withdraw because at the end of the day I didn't deserve it. I then asked Officer Phillips for - if I was allowed to have a cigarette before I went into the police station, sir.” (T 131.36)

This conversation was said to have occurred in the driveway of the Bankstown Police Station.

44. There was further conversation about the media and the plaintiff asked “is there any way that I can keep my name out of the media?”. Patton allegedly replied: “We’ll talk about that upstairs. Follow me.”. The group then went into the police station and the plaintiff was placed in an interview room with Phillips and Patton.

45. In the interview room the three persons sat down on chairs. The plaintiff said that Patton repeated his previous assertion that she was in serious trouble and “that supply cocaine was a serious offence”. She added that “he also made mention that he didn’t really believe that I had supplied cocaine by saying, “I know it was for your personal use, mate”.

46. The plaintiff said that Patton mentioned that the Attorney General’s Department had been made aware of her arrest and there was a Memorandum of Understanding with this Department. There was reference to a media release which was delayed until it was ascertained if the plaintiff was co-operating. This enquiry was repeated on a number of occasions on the telephone.

47. The plaintiff said that she was petrified in the interview room, she was crying on and off and in particular she began crying when she was told the Attorney General’s Department had been told of her arrest.

48. The plaintiff gave this evidence of an officer of Middle Eastern appearance entering the room:-

“The gentleman then looked at me with a smirk and said, that "You said that you’re no-one’s meat, but in here you're everyone's meat.” I started crying, and then Patton then said to me words to the following effect, that if I cooperated, I had nothing to fear, and that the reason why I was upstairs in that room is so that the other boys downstairs would not know that I was arrested, and hence my life would not be in danger. It was at that time that he also made mention of (Mr B’s) lengthy police record.”

49. The phrase “no-one’s meat” was a reference to a statement made by the plaintiff following some controversial comments by a senior Muslim cleric to which the plaintiff had publicly responded (T 146.5).

50. There was then the following evidence given by the plaintiff about her entitlement to a lawyer:-

“A. Patton discussed my options with me. He said that I was entitled to a lawyer, to which I replied, "I've already spoken to my brother about organising one." Patton then replied, "But that means that we're going to have to put you downstairs." Now, I was quite petrified at that time, because the whole time he had been talking to me about my safety, and how concerned he was about my safety. I was under the impression that the only reason I was upstairs was so that the other boys don't know about my arrest, because of safety reasons. And so when he said to me that if I was going to have to ask for a lawyer, I was going to have to wait for him downstairs in cells next to those boys, and he used words to those effects. I said that I didn't need one, and he then left me to get formally charged.”

51. A little later there was a conversation between the plaintiff and a custody officer about her position and then some further conversation with Patton and Phillips about a media release.

52. Patton also spoke about other people arrested that day including Mr B. He said that these people were being held in the cells downstairs. The following evidence was then given by the plaintiff:-

“A. Patton then discussed the charges that I had been arrested for. He said that, "You know that you have been arrested for supplying cocaine." To which I replied, "Yes, but I've told you before that I've only ever bought cocaine for my personal use, that I haven't sold it to anyone." He then replied, "I know that, but you have to say that formally." And I said to him, "I've got no problem saying that I've bought cocaine for my personal use, but I'm not going to say who I've bought it off, particularly if he's downstairs." To which Patton replied that the only way to get out of it was to go downstairs, give a formal interview against (Mr B), and say that he was my supplier, that I had to talk about the code words and how often I bought it off him, and the manner in which they were wrapped, and so forth. I had to give, in his words, as much details as possible about the amount of cocaine that I had purchase and the code words, sir.”

53. The plaintiff then said to Patton: “My life would potentially be in danger if I spoke out against (Mr B)”, to which the officer replied “That if I wasn’t going to go downstairs and give a formal interview then he was going to put me downstairs in the cells and “whatever happened down there, happened”.

54. The plaintiff then said to Patton: “You tell me what needs to be done and I’ll do it, but don’t take me downstairs”. The detective then said that the plaintiff needed to give a statement in which she outlined her use of cocaine. She agreed to do this. She said:-

“A. I had no other choice, sir. I asked for a lawyer and he said if I get a lawyer I have to go downstairs to the boys. He wanted a statement and I said to him I can't give him a statement then I'm back downstairs with the boys. I had no choice, sir.”

55. I have put in the above excerpts from the evidence and given the detail above not as a comprehensive statement of all the evidence given but rather to convey the import of the plaintiff’s allegation, namely that the police officers, in particular Patton and Phillips, essentially used improper threats to coerce the plaintiff to give a statement incriminating Mr B. The plaintiff was given the impression, according to her, that if she failed to do so she would be placed in the cells downstairs where she would be at the mercy of Mr B and his colleagues. Her predicament highlights the anguish she alleges should be taken into account in the assessment of general damages.

56. After the above conversation (paragraph 54 above) the plaintiff said she was taken to an interview room downstairs in the course of which she heard coarse language emanating from the cells. She then, in the interview room, took part in a record of interview which is Exhibit D. Following the record of interview the plaintiff said that Patton said to her: “I have now been told that I can charge you for using cocaine even though I know that you didn’t ever sell cocaine”. The plaintiff then started crying and responded to him: “I did what you told me to do and now you’re going to turn around and tell me that you’re going to arrest me for using when I’ve just gone in there and given the evidence that you wanted me to give about how many times I was using cocaine and the code words, and you told me that was what you wanted from me, and now you’re going to charge me” (T 139.2).

57. The plaintiff was not charged. She was allowed to leave the police station about half an hour later. She went home with her mother, father and sister.

58. Later in the afternoon the plaintiff said she met her boss, Mr Michael Talbot, and told him what had happened at the police station. She said she told him both about her cocaine usage and, more importantly for present purposes, about the threats she said had been made to her in the police station. Mr Talbot’s evidence was interposed during the plaintiff’s cross examination. He was asked about what the plaintiff had said to him and about the conduct of the police. He said:-

“The words to the effect were the police were proposing that she be charged unless she cooperated with them in giving evidence against the other people arrested”

59. The plaintiff was very upset when talking to Mr Talbot.

60. Under cross examination, no doubt because learned senior counsel for the defendant did not think that Mr Talbot had corroborated the plaintiff’s version, he did not take the matter any further.

61. The two versions are definitely different but the difference, in my view, is not so much in substance as in emphasis. It must be borne in mind that when the plaintiff spoke to Mr Talbot she had recently been through a very traumatic experience. She was upset and perceived that she had only escaped being charged because she had agreed to co-operate. The real issue is not so much whether a threat was made as whether the police improperly enticed the plaintiff into making her record of interview in which she implicated Mr B. If the police actions were inappropriate on this basis then I think there is corroboration of the plaintiff’s allegations in Mr Talbot’s evidence.

62. The most significant point about Mr Talbot’s evidence is that it was suggested to him that he did not know about the arrest before the plaintiff spoke to him. He responded that he “had already been alerted by the Media Officer slightly earlier in the day that there was news of her arrest by the police”. The importance of this evidence arose from the plaintiff’s suggestion that one of the threats made against her was being told that her employer had been told of her arrest and that, by inference, the consequences could be significant.

63. The defendant called Mr Angus Huntsdale to give oral evidence. He is and was the media spokesman for the NSW Attorney General's Department. The purpose of his evidence, if I understood it correctly, was to establish, or at least tend to establish, that Mr Talbot did not obtain the information about the plaintiff’s arrest before he spoke to the plaintiff. I do not think Mr Huntsdale’s evidence assisted at all on this point.

64. I think Mr Talbot, because the events were at first hand to him, was much more reliable. I accept that Mr Talbot was aware that the plaintiff had been arrested before she spoke to him on the day of her arrest.

The next few weeks

65. In the weeks following her release from custody the plaintiff said that she received a number of threats which were conveyed to her by her brother or by a person who came to be called Witness A. The existence of these threats does not affect the liability of the defendant but is important to the issue of credit because Witness A was called by the defendant to contradict the plaintiff’s evidence about the threats and in particular the contents of her affidavit sworn on 22 November 2008.

66. I initially made a ruling that the evidence about the threats would go only to damages but the parties later agreed that the evidence in the non-publication application should be part of the evidence in the substantive hearing. This includes Exhibit H. The threats, in particular those communicated via Witness A are set out in paragraphs 11, 12 and 13 of Exhibit H.

67. Under cross examination it was put to the plaintiff, in the plainest terms, that she was lying, in her affidavit, about what was allegedly said by Witness A. She denied the allegation (T 254.40).

68. On the defendant’s application, and by consent I made an order that Witness A’s name and evidence be suppressed because of the possible risk to him if he was associated with the case, but in particular with the Crown (T 273.35). For this reason I have omitted a number of paragraphs about Witness A from this judgment. The parties will be given a separate document containing these paragraphs. The contents of the document are subject to the suppression order. The identity of Mr B is also stated in the document.

69. See separate document.

70. See separate document.

71. See separate document.

72. See separate document.

73. See separate document.

74. See separate document.

75. See separate document.

76. See separate document.

77. See separate document.

78. See separate document.

79. See separate document.

80. Returning now to the plaintiff, under cross examination she agreed that during the ERISP she pleaded with the police “to believe you that you are not supplying”.

81. The plaintiff agreed that following the text message on 22 August 2006 she had dozens of communications with Mr B, the majority being text messages but included some phone calls. She accepted that she began work in the Attorney General’s Department in September 2006 so that her drug usage continued during this employment.

82. Although the plaintiff denied she was addicted to cocaine she agreed that she “considered it necessary at times to lie to (Mr B) to get drugs” (T 158.45). She further agreed that the reason she lied was “to some extent” to get the drugs on credit. She also lied, she agreed, because she did not want Mr B to think she was using drugs during Ramadan.

83. The plaintiff agreed that after she started working at the Attorney General’s Department she had a “fabulous boss”, she had her nomination for Young Australian of the Year and she was involved in various committees and organisations. She had a high profile. She said that in public life she was on top of the world.

84. The plaintiff denied that she was giving drugs to her sister although she may have used her sister’s phone to order the drugs.

85. The plaintiff agreed that she pretended she was supplying drugs to other persons in order to get the drugs on credit (T 162.6).

86. The intercepted phone calls were played during the cross examination of the plaintiff. The playing of the recordings was interspersed with a number of questions, generally seeking explanations of words and phrases used.

87. Following the playing of the audio messages the plaintiff was taken to the text messages that were intercepted. Again, she was asked questions about the meaning of some of the messages but in particular she was asked about those messages that suggested that the drugs were also for the use of other persons. Again, she freely admitted “lying to get what you wanted” (T 182.28).

88. The ERISP was played to the Court during the plaintiff’s cross examination but without interruption. At the conclusion she was asked some questions and taken to a portion of the interview where it was suggested she had referred to herself as an addict. She agreed using the words but denied that she was an addict. She said that she was concerned to convey to the officer that she was not a supplier of the drugs. The plaintiff was later taken to questions 41 to 43 in the interview and this passage of evidence occurred:-

“Q. What you were saying to the police was that before he was your dealer, you didn't want him to know that you were, at that time, addicted.
A. Yes, that's what I have said, sir.

Q. Was that true?
A. No, sir.

Q. So, you were lying to the interview, were you?

A. Yes, sir. There was a couple of occasions that I lied, sir.”

The significance here is that the plaintiff is admitting to having lied to the police officers during the interview.

89. The circumstances of the plaintiff’s arrest were also put to her and again she disputed the detail of the conversation (T 228.32 onwards).

90. Various conversations between the plaintiff and Patton were also denied by the plaintiff (T 227 and 228 and T231.40 to 232.5). There was then this passage of evidence:-

“Q. Patton then walked away from the vehicle for a moment whilst you remained in it and then came back and said:

"What will happen to you now is that we will take you inside. You will speak with someone who is called a custody officer. He will tell you your rights. After that we will talk further. Normally you would have to go down to the custody room but (Mr B) and some of his mates are downstairs, I don't want you speaking with them or for them to know you are here. We will take you to an interview room upstairs."

A. There are bits of that that are true, sir, but in its entirety it is false.”

91. The plaintiff was taken through the process alleged to have occurred in the police station. She agreed with some elements and not with others.

92. The further detail of the conversations between the plaintiff and Patton were put to her and again she agreed with parts but not with others.

The police officers

93. Dale commenced her evidence in chief on 11 December 2008. Her evidence was interrupted following an objection to the adequacy of particulars given by the defendant in relation to Section 99(3) of the LEPRA. The objection led to a decision by me directing the defendant to provide certain particulars.

94. Before the interruption Dale gave some background evidence to the arrest. She said she was a member of the Middle Eastern Organised Crime Squad and had been so since its inception in May 2006. She had been a police officer since 2000.

95. She was involved in Strike Force Kirban which was investigating the distribution of drugs in South West Sydney.

96. She said that she became aware of telephone and SMS interceptions and she listened to some of these. Mr B was a person of interest in relation to the investigation. The plaintiff’s name arose in the course of the monitoring of the interceptions.

97. On 20 October 2006 Dale went to a training day at the Cronulla Surf Club. She said that the plaintiff was one of the guest speakers.

98. On 22 November 2006 Dale attended a briefing at about 6am. She was provided with some operational orders which had been prepared by the Strike Force Leader, Detective Sergeant Patton (Exhibit 3).

99. In relation to Exhibit 3 I note the following:-

(a) The background on pages 3 and 4 was prepared by Patton. The history includes the following passage about the plaintiff:

“The fourth POI, Iktimal EL-HAGE ALI, is a high profile member of the middle Eastern Community and a member of the Commonwealth Advisory Group on Muslim Communities. HAGE ALI, on a number of occasions, has obtained cocaine from (Mr B) to on supply to friends and associates. HAGE ALI is to be arrested and charged with being knowingly concerned in the supply of cocaine.”

Exhibit 3 also contains information about the other 3 persons who were to be arrested that day. The plaintiff is clearly in a different category to the other three.

(b) The “mission” is stated on page 6. It includes the execution of search warrants at three locations and the arrest of all four persons of interest.
(c) Pages 7 and 8 describe the make up of the teams detailed to effect the respective arrests. Team 4 was assigned to the plaintiff’s home. There was a late substitution in that Detective Howe took no part. Detective Amey replaced him. The team also included an exhibits officer and a video officer. These officers did not attend because of the absence of a search warrant.

(d) Paragraph 5.7 of the Orders states that “prisoners will be dealt with in accordance [sic] Part 9 of Lepra” . Section 99 is in Part 8.

(e) The direction to arrest in paragraph 2.1 does not say, for example, “ the arrest is to be in accordance with Part 8 of Lepra.”
(f) Paragraph 5.1.0 states “all media enquiries to be directed to the Operation Commander, Detective Inspector RYAN” .

100. When Dale resumed her evidence on 31 March 2009 she continued the history of the events leading up to and including the plaintiff’s arrest.

101. When Dale set off following the briefing she was aware that the plaintiff had a high profile, that she was a candidate for the Young Australian of the Year and that she worked in the Attorney General’s Department. She was unaware of her specific job. She was not aware that the plaintiff had lived at her current address for the previous six years but she conceded this information was readily available and should have been read. (T 445.41 – 446.11)

102. Although Dyson was a member of Dale’s team the former was in fact the more senior officer.

103. Dale made it clear that as the arresting officer she was individually responsible for the arrest and its justification. She said that in her view there was reasonable cause to suspect the commission of an offence. This offence was the supply of a prohibited drug and the reasonable cause arose from the contents of the intercepted calls and messages.

104. Dale said that the LEPRA legislation came into effect in December 2005. She did not see that the new regime changed her power to arrest but rather that it added responsibilities. She said that the arrest was justified for three reasons:-

(a) There was a likelihood that the plaintiff would not attend court.

(b) She was concerned about the loss or destruction of evidence.
(c) There was a likelihood of continuation of the offence.

105. In elaborating on these reasons Dale said that she was concerned that if the other persons of interest were arrested and this became known to the plaintiff she might flee. Secondly, the plaintiff might have taken steps to destroy evidence, in particular her mobile phone or SIM card. Finally, if the plaintiff was not arrested she might continue to supply illegal drugs.

106. It is worth noting here that the plaintiff was identified because of the interception of Mr B’s phone. Thus only calls and texts between her and Mr B were available. The police did not know therefore if the plaintiff had illegal dealings with other suppliers.

107. Dale said that the original intention, as set out in the Operational Orders, was that she take part in the interviewing and charging of the plaintiff. This did not occur. Her role was taken in this respect by Patton but she was not aware of the reason for the change.

108. Although there were some differences in the versions of what occurred at the plaintiff’s house between the plaintiff and Dale I do not think much turns on them.

109. Dale said that she attended the plaintiff’s house with her team (four officers). They arrived at about 7.15am. Dyson knocked on the door which was answered by the plaintiff’s father. He was shortly joined by the plaintiff’s brother Rabi and her mother. The plaintiff then appeared wearing pyjamas.

110. Dyson identified herself. She then identified the plaintiff and told her that she was being arrested for the supply of a prohibited drug and she was given a caution. There was some conversation involving the plaintiff’s mother. The plaintiff was required to come with the officers to Bankstown Police Station.

111. Dale said to the plaintiff that “she could grab anything she would like including a phone or wallet”. This evidence is important because Dale was anxious to obtain the plaintiff’s mobile phone. The plaintiff put on other clothing and accompanied the police officers to the driveway of her home. It was necessary for a second police car to be brought to the scene because the first one was full. While waiting for the second car the following conversation occurred between the plaintiff and Dyson:-

Ms Hage-Ali asked, "What's this all about?" Detective Sergeant Dyson replied, "Do you know (Mr B)?" Ms Hage-Ali said, "Yeah, he's a friend." Detective Sergeant Dyson said, "Well, you have him to thank for this." Ms Hage-Ali then said, "If you had his phone tapped, I can explain. The drugs were for me. I owed him money, so I told him they were for a friend."

The second vehicle, “the Bankstown 35” soon arrived and the plaintiff sat with Dale in the rear of the vehicle. She gave Dale her telephone and wallet and a packet of cigarettes. Prior to this property being handed over, Dale did not inform the plaintiff that she had other than a custodial interest in the telephone. It was suggested to the detective in cross examination that she had tricked the plaintiff into surrendering her telephone. I observed in discussion that my impression of Dale’s evidence in chief about this matter was capable, by a series of inferences, of being viewed as establishing the trick. Dale, under cross examination, agreed that the manner in which she came into possession of the phone was, as regards the plaintiff, “not fair” (T 435.5 read with T 548.10).

112. Dale said that her team spent about 10 to 15 minutes at the plaintiff’s home. The journey to the police station took about five minutes. The plaintiff would therefore have arrived at the police station at about 7.35am. I note the following:-

(a) Dale acknowledged that she was obliged to put the plaintiff before the custody officer as soon as practicable.

(b) The plaintiff did not see the custody officer until 8.23am. This is about 40 minutes after the plaintiff arrived at the police station.
(c) The plaintiff in her evidence said that it “would be easily 20 or 30 minutes” after she arrived (T 238.14). It was suggested to her that her evidence was “not true” and that she had seen the custody officer “within some few minutes after you arrived in the room” . She disagreed (T 238.26).

113. The evidence of Dale thus seems to corroborate the plaintiff’s evidence and the assertion put to the plaintiff in cross examination was not made out. There may be a distinction in the question put to the plaintiff in that it refers to her seeing the custody manager shortly after she arrived “in the room” as opposed to at the police station. In my view no real distinction arises from the use of these words because, as conceded by Dale, the obligation was to put the plaintiff before the custody manager shortly after arriving at the police station. Rather than asserting that she had met this obligation Dale said that it was not practical to meet the obligation because of the other persons being processed by the custody manager and his assistant.

114. Dale said that there was no conversation with the plaintiff on the trip to the police station. On arrival the police car was parked behind two other police vehicles. She alighted from Bankstown 35 and left the plaintiff with the two officers seated in the front seat. The plaintiff was not handcuffed.

115. Dale went into the police station where she spoke to Patton and Phillips. If I understood her evidence correctly, at this stage, she told the two Detectives about the conversation between the plaintiff and Dyson which had occurred in the driveway and that she, Dale, believed that the plaintiff might be willing to talk further with the officers.

116. Dale then carried on with other duties arising from the co-ordinated arrest but these did not specifically involve the plaintiff.

117. Under cross examination Dale accepted that the preservation of evidence was paramount and the most effective means of achieving this was by way of a search warrant. No such warrant was present in this case. She also accepted that there were limited powers of search when a person had been arrested. She said that these powers were restricted to items “under a person’s control”. She was challenged on the meaning of this limitation which she seemed to suggest could even include items in a different room provided they were not under the control of any other person.

118. Dale was shown an extract from a document prepared by Detective Sergeant McKay, the Commander of MEOCS. She said she disagreed with the second and third sentences (Exhibit K).

119. Dale agreed that a search warrant needs the approval of a judicial officer and it did occur to her that a judicial officer may have declined to sanction such a warrant in this case because the matter was too trivial. Notwithstanding this she said she decided to arrest the plaintiff.

120. Dale refreshed her memory from a statement she had made in November 2007. This statement was later produced and the detective was cross examined on it. She said she understood that one of the purposes in the making of the statement was to justify the basis for the arrest of the plaintiff. She accepted that the three reasons given in her evidence (the Section 99(3) reasons) were not mentioned in the statement (T 463.37). She denied, however, that those reasons were produced as a reconstruction of her justification for the arrest.

121. Dale reiterated that the decision to arrest was made by her alone and it was an independent decision. Her evidence does not contemplate Dyson as a joint arresting officer. She said that if she did not think an arrest was justified then she would not effect it even if ordered by a superior officer. I find this evidence hard to accept and prefer the evidence of Phillips on this point.

122. Dale was asked about the involvement of a man called Huss who was also involved with Mr B. It was put to her that from 7 October to 2 November 2006 Huss had obtained 26 grams of cocaine from Mr B. She was not sure of the amounts and she could not say that Huss was getting more than the plaintiff had. She agreed that other persons who had purchased more cocaine from Mr B than the plaintiff were not arrested. The difference she said was because of the indication of further supply on the plaintiff’s part.

123. Dale was taken to police documents indicating that “Dragon” or Huss had supplied 15 people in one day. She also agreed that one of the other persons of interest was not “a nice person”. There was a search warrant in respect of him. Following his processing he was given bail and issued with a Court Attendance Notice. It was put to Dale that the plaintiff was, in terms of criminality, certainly no worse than this man. She was asked how an arrest could prevent continuation of the offence if it was inevitable the plaintiff would be released on bail. She responded that the bail conditions would serve to restrict continuation of the offence. No evidence was called by the defendant as to the likely bail conditions, if any, which would have been imposed at the police station. No doubt conditions sought are not always granted.

124. Dale agreed that if the plaintiff had purchased 13.5 grams over an 11 week period, never taking more than one gram at a time, this suggested personal use rather than supply. The inference available from this suggestion, according to the plaintiff, would be that the detective should have known when arresting the plaintiff that it was unlikely she had been supplying the drug to other persons. The difficulty with this inference is that it assumes the plaintiff was not obtaining drugs from any person other than Mr B and contradicts the clear references to supply on the plaintiff’s part contained in the intercepted calls and messages.

125. The detective said that she would have opposed the granting of bail to the plaintiff if she had not agreed to an interview. This was despite the fact that she had also agreed that it was very unlikely the plaintiff would have received a gaol sentence for her offences and that it was highly likely that she would have been granted bail. She agreed there was no realistic expectation that her passport would have been taken from her.

126. Dale denied the suggestion that the major purpose in arresting the plaintiff was to obtain evidence against Mr B.

127. In re-examination, Dale said that when effecting the arrest she had Section 99 in mind and would not arrest without reasonable cause. I found her assertion that she would have had Section 99 in mind hard to accept. I do not say this out of criticism of the detective in the manner she went about her duties but rather as an observation that a busy police officer about to effect an arrest would perform a checklist of the provisions of Section 99.

128. Patton was in charge of Strike Force Kirban which was set up to investigate two drug rings, one involving Mr B. The original operation was set up in June 2006.

129. The detective described the obtaining of the interception warrants which initially were for specific telephone numbers but later extended to any telephone service associated with Mr B.

130. In the course of listening to the intercepts he formed the opinion that the plaintiff was supplying drugs that she originally obtained from Mr B. He came to this conclusion in late September of 2006 but certainly before 20 October.

131. He said he regarded Mr B as an important target and the plaintiff as less important. He was of the view that she was involved in minor trafficking to support her own habit. He gave this evidence at T 471.16:-

“ Q. Why do you sometimes target purchasers?
A. Just to seize the drug. It's called - what we call a "takeaway". A supplier might sell to a user. So as not to disclose the operation, we'll grab the user down the road, arrest them, search them, take the drugs, and that ties in with the phone records and that shows that they're - you know, what drug they're supplying, and that corroborates the information on the phone.”

132. Patton said that the Operational Orders (Exhibit 3) were prepared by him and targeted four persons. He said that he thought it was appropriate to arrest and charge the plaintiff based on the telephone intercepts and in particular to prevent a reoccurrence of the offences as well as to ensure her attendance at Court.

133. Patton described the Operational Orders as a standard form document which was adapted to the circumstances of the particular operation at hand. This included the reference to the media where police officers were always directed to refer media enquiries to a superior officer. There was, he said, a real possibility of media interest in this operation because it involved Telopea Street which was a notorious thoroughfare in relation to organised crime.

134. Patton said that the Operational Orders were handed out at the briefing which took place at 6am on 22 November 2006.

135. Patton described the considerations a police officer would take into account before making an arrest. The first question was the presence of a reasonable cause to suspect commission of an offence. If the answer to this question was in the affirmative the officer would be faced with the following options:-

(a) He could ignore the offence because of its triviality.

(b) The offender could be given a warning.

(c) If applicable, an infringement notice (a ticket) could be issued.

(d) The offender could be served with a Court Attendance Notice (CAN).

(e) The officer could arrest the offender.
(f) Finally, in addition to an arrest, a CAN could be given to the offender at the police station assuming he was granted bail.

The above alternatives are, to some degree, mirrored in Exhibit J, the Code of Practice for Crime. At page 10 of this document the following is stated:-

“Alternatives to arrest

Be mindful of competing requirements between the rights of individuals to be free and the need to use the extreme action of arrest so you can commence proceedings against people who break the law. You must not arrest unless it is necessary to achieve one or more of the purposes set out in section 99(3) of LEPRA (see Exercising the power to arrest). The alternatives to arrest include the following:-

Caution
Warning
Infringement notice
Penalty notice
Court attendance notice (eg ‘field’ or 'future’ CAN)
Youth justice conference.”

The above quoted passage is at the core of the plaintiff’s case in relation to her alleged wrongful arrest. The plaintiff says that the “extreme action of arrest” was not necessary against the background of her acknowledged criminal activity. Rather, she says, her arrest was for the purpose of strengthening the case against Mr B.

136. Patton said that Operational Orders could not order an arrest. This was the province of the arresting officer who was bound to comply with LEPRA. I brought to his attention this sentence in Exhibit 3 (paragraph 2.1):-

“Hage-Ali is to be arrested and charged with being knowingly concerned in the supply of cocaine.”

I have already noted that unlike paragraph 5.7, paragraph 2.1 contains no reference to the arrest needing to be made pursuant to LEPRA.

137. Patton said that the words just quoted from Exhibit 3 were essentially standard form and that the discretion remained with the officer responsible for the arrest. This explanation defies the content of Exhibit 3. I think it was contrived to avoid the simple meaning of the direction to arrest.

138. I also asked the detective to elaborate on his evidence about the arrest of drug users in the investigation of a supplier. He gave this evidence:-

“Q. Are you, in effect, saying that you pick up the small fish to catch the big fish?

A. Yes. Or seize the drug, anyway, your Honour. That's the whole point of the operation, to establish what drug they're selling and the amount, and so we can use that evidence against the supplier. As to what happens to the small fish, we're not overly concerned and we leave that to the uniformed people who we task to do the stop.”

139. This evidence goes to one of the main issues in the case, namely the plaintiff’s assertion that there was never a need to arrest her but that her involvement was for the collateral purpose of not only apprehending Mr B but securing the strongest possible evidence against him. The intercepted telephone calls and text messages certainly provide good evidence against Mr B. However, they are in code and could not match the direct evidence of a person who actually purchased the drugs, in particular a person likely to present as impressively as the plaintiff.

140. As at 22 November 2006 Mr B, and the other male persons of interest, were all regarded as suppliers. One however, was a minor and his supply was restricted to one or two grams. The evidence against the other two gentlemen indicated much higher quantities, perhaps up to 150 grams. Patton conceded that the plaintiff was in a separate category to the other three persons of interests who were part of a gang operating in Telopea Street. The plaintiff at best was only loosely associated with Mr B. In addition, the detective again conceded, the quantity of supply associated with her was very small.

141. Search warrants were on hand for the three male persons of interest but not in respect of the plaintiff. A warrant had been sought but the application was refused.

142. Despite referring to the plaintiff as a “very low level” supplier he nevertheless thought it appropriate that she be arrested under the LEPRA Guidelines.

143. The decision to bring the operation to an end was taken because the source of the drugs to Mr B could not be located. The plaintiff was in the category of ‘who else could be arrested’ in addition to the main targets. Significantly Patton said that other persons had been identified in the telephone intercepts but they had not been pursued. The plaintiff says she should have fallen into this category.

144. The detective gave evidence about the preparation of the fact sheet (Exhibit 5) and the approval of the Operational Orders. On the day of the arrests Patton went to Telopea Street and witnessed the arrests of Mr B and another person of interest. He later went to the Bankstown Police Station where he met Dale at the entrance to the premises. This was the public entrance. Dale had identified their initial meeting as having occurred in the custody room downstairs (T 411) but I do not think much turns on this difference in their evidence. The two detectives discussed the arrest of the plaintiff and Patton asked his colleague to see if arrangements could be made to keep the plaintiff separated from the other prisoners. His reason for doing so was as follows:-

“A. Because, in my opinion, if she was allowed to speak with the other prisoners, or they were allowed to speak to her, in particular (Mr B), she may well change her attitude in respect to speaking with us.”

In giving this evidence Patton did not feign any concern for the plaintiff’s welfare. Rather, he indicated the tactical reasons for his direction to Dale.

145. Following his conversation with Dale, Patton and Phillips then spoke to the plaintiff who had remained in the police vehicle. Patton identified himself and his colleague and gave her a warning in relation to what she might say against her interest. She responded “yes, but the only way you could think I was selling is you’ve been listening to my phone. I said that to the bloke I buy off, but it’s not true”. Patton later said that one of the matters he took into account in concluding that the plaintiff was not a supplier was her early statement to him acknowledging that what she had said on the telephone could be misinterpreted as suggesting she was supplying the drug to others. When asked who had been supplying her, the plaintiff, in a slightly quieter voice, identified Mr B. At this time, and I gathered, frequently during the morning, the plaintiff was crying and overtly upset.

146. It is clear that from the very beginning of her contact with the detectives that the plaintiff was willing to provide information against Mr B. I could not say this was due to any wish to assist the police, rather it was probably motivated by the plaintiff’s terror and desire to exculpate herself from her circumstances.

147. The plaintiff was taken to a witness interview room on the upper floor of the police station where she was spoken to by the custody manager. I have already mentioned that the records indicate that this occurred at 8.23am. Patton then decided that the interview should be conducted by Phillips but that he would sit in for the following reason:-

“A. Well, I decided to sit in on the interview because early indications from what she said to me, in just our brief conversation, was that she was going to provide some exculpatory evidence in respect to the offence of supply. And I knew that I was going to have to make the decision whether she should be proceeded against for that offence, or any offence, and the best way for me to assess that evidence was to sit in and watch what she had to say. Not only was I going to have to make that decision, but I was going to have to justify that decision to my direct superiors.”

148. By this time, according to Patton, it was known that the other persons of interest would not co-operate. Despite this, he said that he was primarily concerned with whether the plaintiff was a supplier. Having regard to the strike force’s mission I have little doubt Patton was anxious to secure the co-operation of the plaintiff to catch the ‘big fish’.

149. Patton gave detailed evidence about the contents of conversations that he had with the plaintiff. This was despite him not having made any notes about these conversations. This manner of giving evidence was in marked contrast to the evidence of Phillips who also did not have any notes. Phillips’ evidence did not contain the detail of the conversations and, as one might reasonably expect, he said that he could not recall some of the conversations nor the content of others.

150. After the ERISP interview Patton said he had come to the opinion that the plaintiff’s account was credible. He gave his reasons for doing so (T 510.9). He then spoke to Phillips and a decision was made not to charge the plaintiff. He said in making this decision he factored in the difficulties which would be caused to her in her position. He then told the plaintiff about his decision which carried this rider:-

“"There's still a chance that you may be proceeded against for those offences, but if that happens, that means the decision has been made by someone higher up.’”

151. Phillips, in his evidence, did not refer to this qualification but rather gave the impression that the decision not to charge was final.

152. Following the plaintiff being informed of the decision not to charge her, some 20 to 25 minutes elapsed before she was released. This time was taken up by the processing required but also by the downloading of information contained in her mobile phone. This action to some degree confirms the theme of the plaintiff’s case that the interest was not in her but rather the information that she could provide. There is also no suggestion that she was ever asked if she objected to these details being downloaded although it is probable that she knew it was occurring.

153. Both Patton and Phillips said they considered the case that they had against Mr B was “strong” but they both conceded that the record of interview given by the plaintiff strengthened that case. This is a significant issue for the plaintiff because, as I have said above, she asserts that her arrest was for the collateral purpose of improving the case against Mr B.

154. A good deal of evidence was given about some words spoken by Patton at the end of the ERISP interview after he had left the room and then returned and said something about “bosses”. The tapes, both audio and visual, were replayed a number of times in order to identify exactly what was said. The written transcript does not contain any of this conversation. The purpose behind all of this close examination concerns the issue of how Mr Talbot came to know about the plaintiff’s arrest before, as she alleges, she told him. The plaintiff’s case is that the informing of the plaintiff’s employer of her arrest was part of the intimidation of her to ensure her continuing co-operation. Patton acknowledged that he was referring to her employer when he returned to the interview room stating that her boss, or bosses, were aware of the arrest. However, he also said that when he had been called out of the room he had been told by a uniformed officer that “her” bosses had rung a number of times and he inferred that they were “in a flap” about it. He said that he later found out that the message conveyed by the uniformed officer was in fact a reference to “his” boss and that the phone calls had come from more senior members of the Police Department.

155. Patton’s explanation of why he said what he did when he returned to the room is perhaps difficult to accept and consistent with the maintaining of pressure on the plaintiff. However, on the other hand, the plaintiff had, by this stage, already given all the necessary detail the officers might have required in the interview and there was no need to continue to intimidate the plaintiff. The fact that Patton’s explanation seems odd does not make it untrue. I do not think I could conclude that the detective had not genuinely misinterpreted the message given to him. It was also put to Patton that when he sat down and spoke to the plaintiff about what he had heard that he was laughing. That is not my interpretation of the video and I do not think any such conclusion can be drawn from it.

156. Patton denied, either by himself or on his orders, informing the plaintiff’s employer or the media about the arrest.

157. Patton gave evidence about threats to the plaintiff. I do not think I need record all of the evidence. However, he acknowledged that Mr B was the sort of person that might have made threats but, on the other hand, he was surprised that the plaintiff did not seem concerned about the possibility of threats. The plaintiff’s version is, of course, quite different. According to the plaintiff her actions were motivated by her fears and included leaving Australia to work in Dubai. It is to be recalled that the plaintiff left Australia on 17 December 2006.

158. Patton was taken to paragraph 5.7 in Exhibit 3 which is the reference to Part 9 of LEPRA. He was then taken to reasons (T 554.26) for arresting alleged criminals concurrently and the benefits of doing so. The defendant was concerned in the presentation of its case, that I should appreciate the benefits and necessities which arise when people are arrested jointly. Although a good deal of evidence was given on these matters they are essentially questions of commonsense.

159. The real issue here is whether or not it was necessary to arrest the plaintiff. It is not a matter of whether a co-ordinated arrest was the appropriate method. The plaintiff says in the most simple terms, co-ordinated or otherwise, she should not have been arrested.

160. Exhibit 7 is an affidavit of Patton that was originally read in the suppression application on the first day of the hearing. It was ultimately admitted in the substantive hearing essentially to short cut the detective’s evidence on relevant matters contained in the affidavit. I drew the detective’s attention to paragraph 13 of his affidavit because I thought, at least at first sight, it contradicted his oral evidence that Mr B was the type of person who might have threatened the plaintiff. A good deal of time was spent by senior counsel for the defendant taking the detective through affidavit and other material to dispel this initial impression. The detective’s comment was clearly a reaction to an affidavit sworn by a Ms Mandy Safi on 16 September 2008. Exhibit 13, I conclude, can only be read in conjunction with Ms Safi’s affidavit and cannot be seen as inconsistent with his oral evidence.

161. Under cross examination Patton, in general terms, rejected the matters put to him which contradicted the evidence he had given in chief. I do not think it necessary to set out every matter put to him but I do note in particular the following matters arising from his cross examination.

(a) Although the detective had earlier said that Mr B did not have a lengthy criminal record he conceded that his record, including fire arm and violence matters, was a significant record. As ultimately stated by Patton: “He is a criminal. There is no doubt about that.” (T 569.1).

(b) As with Dale and Phillips, Patton was asked to comment on Exhibit F page 17 (an excerpt from a document written by Detective Superintendent McKay). Patton said that he agreed with the first sentence, that the second sentence was often the case and he agreed with the third sentence. I note here that Phillips agreed with all three sentences. Of equal importance, in the same document, are these words:-

“It is a common and accepted investigative practice to not initiate proceedings against people for minor offences, in particular, those who indicate that they will assist the investigation and prosecution of those involved in more serious offences such as supply.”

I think there is a danger of too much being made of DS McKay’s words. In my view he is talking about policy and practicality. He is not talking about legality. The case put by the plaintiff seems to suggest that any person falling within DS McKay’s description should not be arrested. In my view he does not say that at all. He says no more than that there is little point in arresting such people. He certainly does not prohibit their arrest.

(c) Patton agreed that at least some of the information leaked to the media had come from the NSW Police Department (T 569.28).

(d) According to the detective it was necessary to arrest the plaintiff to firstly ensure her appearance in court and secondly to prevent a continuation of offences. He did not agree that once a search warrant had been declined that it was inappropriate to use the arrest power to obtain property. The difficulty I have with this statement is that one must wonder what method is then appropriate in order to obtain property. The particular relevance here concerns the plaintiff’s mobile telephone which, as I have already discussed in respect of Dale, was obtained from her under the pretence of keeping her goods safe whereas the obvious and real intent was to obtain the data contained within the phone.

(e) Patton agreed that the three male persons of interest were in a different category to the plaintiff and that it was useful to have a statement from her as a purchaser for the prosecution of Mr B. Other than the plaintiff no other purchaser was available to give such evidence. He said that no further evidence was required to obtain a conviction against Mr B. He did not, certainly at this stage, distinguish between a conviction following a trial and a plea of guilty. No doubt the authorities would consider a plea of guilty preferable and I do not criticise that attitude. I also have no doubt that the statement obtained from the plaintiff could be viewed as a significant tool in obtaining not only a conviction against Mr B but an early guilty plea.

(f) In relation to the need to arrest the plaintiff, Patton disagreed that the same purpose could have been achieved by way of a CAN (T 582.21). He said he was aware that the plaintiff had no prior convictions and he anticipated that she would probably be granted bail. He was aware of her employment and that she had been at the same address for some time. The detective said that he would have sought a bail condition that her passport be surrendered. It was put to him, in effect, the suggestion was ridiculous and that based on his experience he knew that no such bail condition would ever be granted. He said that an authorised police officer would have granted the condition if it was asked for, although, if not in terms, he did not dispute that no such condition would be upheld by a court. He agreed that no document had ever been produced expressing his “concerns about Ms Hage-Ali not fronting court unless she was arrested” (T 588.31).

(g) Although Patton had no evidence to suggest that the plaintiff was obtaining drugs from any person other than Mr B, he was of the view that “it’s a common practice of drug users or drug addicts to have multiple sources of drugs” (T 589.42). Therefore, the fact that Mr B had been arrested did not necessarily mean that the plaintiff would not continue to offend. I have already noted that it was Mr B’s phone, and not the plaintiff’s, that was being intercepted.

(h) Patton did not however have any positive evidence that the plaintiff had other suppliers. This is an example of the police acting on a ‘stereotype’ basis rather than on information personal to the person being arrested.

(i) It was put to the detective that being let out on bail with conditions would not stop a committed drug user from continuing illegal activity. The detective then gave this evidence in response to a question that I asked:-

“Q. I think really what's being put to you is that if she would have wanted to carry on using drugs, the fact that there was some bail conditions wouldn't necessarily have stopped her.
A. No, but it takes a step - it's a step towards stopping her. It's a lot more serious when they get caught offending on bail. It's a bigger discouragement than, perhaps, serving her with a field CAN or a summons.

Q. It's a warning of a more severe consequence.
A. That's right, and if she does offend, well, then she may not get bail .” (T 591.5)

His use of the word “they” is perhaps another indication of the detective applying the stereotype approach I have just referred to.

(j) In relation to what the plaintiff clearly advanced as the major issue in the case Patton had this response:-

“Q. What I want to suggest to you is - I think I've put it fairly clearly, I'll do it one last time - the only reason Ms Hage-Ali was roped into these arrests on that morning was to get information against Mr B and his associates.
A. The only reason she was arrested on that morning was to be put before a court for an offence that she'd committed. That plan changed during the day.” (T 604.35).

(k) Another passage of evidence that I thought was important was the following:-

“Q. And you made it quite clear to Ms Hage-Ali that you were concerned about her safety and that's why you wanted to go by alternate routes and other such matters to the interview room?
A. That had nothing to do with her safety. That had to do with them seeing her and yelling out, "Shut your mouth," you know, "We'll look after you." That's normal to keep people - people who are going to cooperate, you keep separate from people who aren't. It had nothing to do with her safety. Nothing was going to happen to her in a police station.” (T 607.23)

The importance, at least to me, of this evidence was that it indicated that Patton was not advancing a pretence that he acted in the best interests of the plaintiff. His decision was tactical and designed to advance the investigation. The prime target of the investigation was Mr B.
(l) Patton had an uncompromising demeanour. I have some reservations about his capacity to have recalled the detail of a number of conversations when no notes had been taken but I do not reject his evidence simply because he described a conversation in a different way to the plaintiff or any other witness. A number of conversations were alleged by the plaintiff and the police officers against each other which were either denied or attributed to a different time or person. I did not form a conclusion about any of the witnesses which would enable me to safely conclude that a conversation had or had not occurred. I do not think I need to. This is because the fundamental question is whether the police officers should have arrested the plaintiff.

162. In re-examination Patton said that the maximum penalty for an offence of the type apparently committed by the plaintiff was 15 years imprisonment. There is absolutely no suggestion, however, that had the plaintiff been convicted of supplying the drugs she had purchased from Mr B that she would have attracted anything like this sentence, let alone a term of imprisonment.

163. I have already referred to a number of matters relating to the evidence of Phillips. Because there was a good deal of overlap between his evidence and that of Patton, both the examiner in chief and his cross examiner did not seek the same detail as they had from Patton. I should say, however, that I was particularly impressed by Phillips in the manner in which he gave his evidence. He made concessions which I thought were appropriate and maintained his case where he appeared to hold a firm belief.

164. Demeanour not a final testing tool for the reliability of a witness. The way a person behaves in a witness box does not dictate their believability. Particular care must also be taken when a witness is, in a sense, a professional witness, like a police officer, used to entering the witness box and dealing with often aggressive questioning. Thus the mere fact that Phillips gave his answers in a calm and measured manner does not enhance their chance of being accepted. At the same time an emotional reaction to questioning, as displayed by the plaintiff from time to time, could not be held against her because the effects of her experiences on arrest and detention were no doubt deeply felt both then and until she gave evidence. I make these remarks to stress that my conclusions are not a product of simple observations of demeanour.

203. It follows that I must reject the defendant’s case as put in paragraph 11A above. Turning to 11B I also reject the defendant’s case at this level. I do so because:-

(a) There is no evidence that Patton, or any other senior officer, told or discussed with Dale or Dyson any of the purposes in Section 99(3).

(b) There were no doubt discussions within the strike force about the persons of interest but there is no evidence that the Section 99(3) purposes were discussed. For example there is no suggestion the officers spoke about the plaintiff taking flight or destroying evidence.

204. The final level at which the defendant says it has proved that the arrest was lawful is described in paragraph 11C above. Because it is by far the strongest, in the defendant’s favour, of the three levels, I think it worth repeating here:-

205. This level is the strongest because the arresting officers both said that they took into account Section 99(3) in making the arrest and, moreover, they would not have arrested had they not formed their own individual assessment. I have already said that I prefer the evidence of Phillips about whether an officer in the position of Dale or Dyson would effectively disobey the direction given by Patton both orally and in the written orders (Exhibit 3).

206. Lest there be any doubt about my finding: I do not accept that Dale or Dyson gave any consideration to the arrest of the plaintiff which might have involved contravening the direction to arrest given by Patton. Assuming that independent consideration is required by the arresting officer, this finding should end the liability issue. In case I am wrong I think it necessary to look at the justifications for arrest given by Dale and Dyson.

207. Both officers referred to the potential for loss of evidence, the possibility of flight on the part of the plaintiff and of her reoffending. Dyson also relied on the seriousness of the offence.

208. Whether an offence is serious is not listed in Section 99(3). I do acknowledge that there may be some offences of a very serious nature in which the Section 99(3) purposes would almost automatically be present. This is not the case here and despite the defendant’s submission that any supply is serious and that three grams was a trafficable quantity, the reality is that as serious as supply is, the plaintiff’s criminality must be regarded as at that end of the scale where her personal circumstances had to be addressed. To quote Patton:-

“A. My view was that there was only minor drug trafficking. She had only just begun supplying drugs, and it was more or less to support her own habit. She had only just started. In the scheme of drug trafficking, it was an unimportant level at that stage. It was a lower level - very low level, drug trafficking.”

209. Accordingly, I do not take Dyson’s reference to the seriousness of the offence into account.

210. In relation to the other factors, which essentially reflect subparagraphs (a), (b) and (c) of Section 99(3) I make the following comments:-

(a) These things were known to the officers: the plaintiff had no criminal history, she lived with her parents and had done so for the last six years and she was in apparently stable employment in the Attorney General’s Office.

(b) The amount of cocaine purchased from Mr B was of such a small quantity that there was unlikely to be a risk of the plaintiff disposing of any remnants of the drug in her possession.

(c) The only item of evidence which may have been of significance to the police was her mobile phone, including the SIM card.

(d) Although there was always a theoretical possibility that the plaintiff might get in touch with some other drug user, possessor or supplier with a view to evidence being destroyed there was absolutely no evidence, besides speculation, that this might occur.

(e) The plaintiff had returned from Korea two days before her arrest. She therefore obviously had travel documents which would enable her to leave the country. As properly conceded by Mr Bodor QC, the evidence did not establish that Dale or Dyson were aware that the plaintiff had been overseas. Even with such knowledge, the fact that a person has a passport cannot, without more, lead to a reasonable suspicion of flight.

(f) There was no other reason to suspect ‘flight.’

(g) In relation to reoffending, the offence which is relevant is ‘supply’. I have already noted that the plaintiff accepted that the telephone intercepts could have given rise to a conclusion of ongoing supply by her. However, all the cocaine she ‘supplied’ had come from Mr B. Absent this source she could not supply. It is possible she may have had other suppliers or sought new suppliers but this was only conjecture. There was no evidence suggesting the plaintiff obtained cocaine from any person other than Mr B.
(h) There is no information in Exhibit 3 about the plaintiff from which any conclusion of flight, destruction of evidence or reoffending could reasonably be drawn. For good reason the plaintiff is only a bit player amongst the other persons of interest described in this document.

211. It follows that I reject the defendant’s case as described in paragraph 11C above. In summary I have done so for three reasons:-

(a) I do not accept that Dale and Dyson gave individual consideration to the justification for the arrest against the background of Exhibit 3 and the plain direction from Patton. I think it relevant that Dale’s statement, made in November 2007, did not include the Section 99(3) purposes she gave in her oral evidence. One of the purposes behind the statement was to justify the arrest. (See paragraph 120, above).

(b) There was no consideration of matters personal to the plaintiff as opposed to a general conclusion to this effect: if she has been supplying drugs then there must be a risk of flight, reoffending or destruction of evidence.
(c) In any event there were not reasonable grounds to suspect any of the purposes in Section 99(3) needed to be achieved.

212. I therefore find that the defendant has not proved that the arrest of the plaintiff was lawful.

213. Although there is a strong flavour of the arrest being made for the purpose of obtaining evidence against Mr B I do not think there is enough evidence to make a positive finding to this effect. I certainly could not conclude that this was the sole purpose.

Damages

214. I set out in paragraph 16 above the bases upon which the defendant said the plaintiff’s case on damages should fail. I note here that in respect of proving damages the onus is on the plaintiff.

215. The defendant’s first argument is that the plaintiff is not entitled to compensatory damages because of Section 54 of the CLA. This section is as follows:-

“54. Criminals not to be awarded damages

(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that:

(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and

(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.

(2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).

Note

. Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant’s conduct constitutes an offence.

(3) A serious offence is an offence punishable by imprisonment for 6 months or more.

(4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981 .

(5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.”

216. I note first that the Section 54 defence was only raised by the defendant very late in the hearing and seemingly as a result of an observation from me (T 712.38). Despite its late arrival the defence was argued with much enthusiasm in final submissions. These four matters are not in dispute:-

(a) The supply of cocaine is a “serious offence” as defined by Section 54(3).

(b) Section 54 only applies to personal injury damages (because of Section 51).

(c) Failure to comply with Section 99(3) (LEPRA) is not an offence.
(d) Compensatory damages do not include aggravated or exemplary damages.

217. I think the following three questions require resolution to establish the validity, or otherwise, of the Section

54 defence:-

(a) Whether the injury or damage to the plaintiff occurred “following” the conduct of the plaintiff, which conduct was a serious offence (Section 51(1)(a)).

(b) Whether the plaintiff’s criminal conduct “contributed materially to the … injury or damage …” (Section 54(1)(b)).
(c) Whether the compensatory damages claimed by the plaintiff are personal injury damages.

218. On one reading of the section the conduct referred to in subsections 1(a) and (b) would not be the supply of cocaine but rather the use or possession. This is because this was the actual conduct of the plaintiff, although the police had good reason to suspect her of supply. In addition, the conduct relied upon by the defendant is the plaintiff’s use of cocaine on the Monday evening before the arrest on the Wednesday. I do not think it matters much whether the offence is supply or use or possession because the latter are also a “serious offence”.

219. The real question is whether the injury or damage ‘followed’ the plaintiff’s use (including possession) of the cocaine on the Monday evening. Obviously the damage (which is assumed for the present argument) followed the offence in a temporal sense. I do not think a simple before and after interpretation is contemplated by the section. In my view there must be some closer connection between the offence and the damage. In the classic case a robber who has broken into a bank and is fleeing the scene is involved in a motor vehicle accident. There is an unquestionable connection between the offence and the flight where the injury occurs. In my view there is no material connection in the present case between the use of drugs on the Monday evening and the arrest on the Wednesday.

220. In Sangha v Baxter [2007] NSWCA 264 Young CJ in Eq, as he then was, said this in relation to the word “following” in Section 54:-

“It seems to me that it cannot be that every action after someone has committed a serious offence can be caught by the words “following … “. Just where the cord must be cut is unclear. It may be that if one were to set down a test one would do it in similar words to those of Lord Normand in the Privy Council in Teper v R [1952] AC 480 at 487 (a res gestae case) that the injury must occur “if not absolutely contemporaneous with the” crime then “at least so clearly associated with it, in time, place and circumstances” that it can be considered part of the criminal conduct.”

221. Applying the broadest possible interpretation the defendant argues that if the plaintiff had not used drugs on the Monday or in fact any other previous day she would not have come to be arrested. Therefore the damage follows the conduct. I do not accept this argument. One event comes after the other but does not follow it in the manner described by Lord Normand.

222. I also think the defendant fails in relation to Section 54(1)(b). Once again, it would take an interpretation in the broadest terms to suggest that the plaintiff using cocaine on the Monday or any previous day “contributed materially” to the damage caused by her arrest on the Wednesday. The fact that the plaintiff used the cocaine has nothing to do with the damage suffered.

223. There is a further point which is against the defendant. The plaintiff was arrested for supply of cocaine. Her actual conduct was use and possession of the illegal substance. I do not see how it can be said that any supply, which she did not do, could have contributed to the damage caused by the arrest.

224. The third issue in relation to Section 54 is whether or not the damages claimed are personal injury damages. Both parties referred me to State of New South Wales v Ibbett (2005) 65 NSWLR 168. The Chief Justice was of the view that:-

“21. The concept of “personal injury” is reasonably well established in Australian legal practice. It has rarely, if ever, been used to refer to harm to reputation, deprivation of liberty, or to injured feelings such as outrage, humiliation, indignity and insult or to mental suffering, such as grief, anxiety and distress, not involving a recognised psychological condition.”

225. Ipp JA was of the opposite opinion. He said, at paragraph 124:-

“In my view, anxiety and distress would be an “impairment” of a person's mental condition in accordance with the ordinary meaning of “impairment”, as the word is used in s 11.”

226. Basten JA, in paragraph 216, referred to personal injury damages as being damages “which may properly be awarded in proceedings in negligence”. I did not read his Honour as coming down firmly in favour of the position taken by the Chief Justice or by Ipp JA.

227. Cooper AJ in Houda v State of New South Wales [2005] NSWSC 1053 at paragraph 359 and in Andrews v New South Wales (2004) 1 DCLR 230 was of the same view later taken by the Chief Justice in Ibbett. Murrell DCJ also seems to favour the plaintiff’s interpretation in Corby v State of New South Wales [2009] NSWDC 117.

228. I have decided not to reach a conclusion on this point. My views on the first two issues concerning Section 54(1), expressed above, are so strong that I do not need to consider the point. In addition, I was informed that Corby is under appeal and the matter will be dealt with in the Court of Appeal.

229. The next point is the defendant’s submission that, if the Section 54 argument fails, compensatory damages should be assessed under the CLA unless my findings bring the case within Section 3B(a). This means that I would need to find the wrongful arrest was “an intentional act that is done with intent to cause injury …”. This reliance on the CLA is another example of the defendant using this legislation despite its opening stance that the Act was apparently not applicable (T 124.14). I do not criticise the defendant however for taking points which it thought had merit.

230. In any event the matter has now been raised and needs to be dealt with. I have no doubt that the act of arrest was an intentional act. The real question here is whether it was done with “intent to cause injury”. In my view it must have been because an intent to wrongfully arrest must carry with it an intention to effect the natural consequences of an arrest. These consequences will include the damage which will inevitably flow from a wrongful arrest. I am therefore of the view that the CLA damages regime does not apply here because the circumstances of this case fall within the exclusion provided by Section 3B(a).

231. The next matter to be dealt with is the nature and extent of any damage suffered by the plaintiff. She seeks general damages and economic loss as well as aggravated and exemplary damages. Besides simply being wrongfully arrested, the plaintiff’s case is that she was subjected to a deliberate harassment and humiliation.

232. I should state at this stage a matter that has concerned me throughout the trial and has permeated my thoughts on damages. The plaintiff’s case is that she has been wronged by the actions of the NSW Police Force. As a result she says she has suffered greatly and this suffering has extended beyond the humiliation of her arrest and subsequent detention to her treatment by the press, her loss of her award and the need to give up her job and move to Dubai.

233. The difficulty I have is that notwithstanding the wrong doing of the police force, as I have found, the plaintiff was conducting her life in a manner inconsistent with the picture of the person she claims has been so significantly affected. In blunt terms, she was a regular user of an illegal substance and conducted herself in a manner which gave the police grounds to conclude that she was a supplier of the drug to other persons even if on a very low scale. My finding of wrong doing on the part of the police is not in any way an exculpation of her conduct. It is no more than a conclusion that the police should not have arrested her.

234. In accepting the award, after she had been arrested, the plaintiff must have accepted the risk that her arrest, or at least her cocaine use, would become public. She knew that her employer had been informed so that the same leak could well reach the press. In addition, had the selection authorities for the award been aware that she was a regular user of cocaine (and nothing more) I have little doubt that she would not have received the accolade.

235. The plaintiff says that the press coverage on, and following, 13 December 2006 played a major part in her humiliation and subsequent actions. This coverage would not have occurred, it is said, had the plaintiff not been arrested. That is true as a matter of simple logic, but has these difficulties as a starting point for damages:-

(a) Had the plaintiff not been arrested she may well still have come before a court. One of the alternatives suggested to arrest was the issue of a Court Attendance Notice (CAN). This would have brought the plaintiff to a court where her name would probably have been noticed in the list and publicity would have followed. Even if neither arrested nor issued with a CAN the plaintiff’s involvement with cocaine may have become public.

(b) In one sense it could be said that it ought to have become public because of its inconsistency with the high character she held out in accepting the award, and standing for the national position.

(c) Although the press coverage was widespread and ‘front page news’ it also, at least in respect of every excerpt that has been tendered, made it clear that the plaintiff had not been charged (Exhibit E).
(d) The press reports are replete with various statements and accusations which, no doubt, would have affected the reputation of the plaintiff. However, they do not go further, in their allegations of her wrongdoing, in suggesting anything beyond the use of cocaine. For example, in the Daily Telegraph on 16 December 2006 this appears:-

“Eight days before receiving the State’s highest honour from Governor Marie Bashir, she had been arrested in a cocaine raid by the Middle Eastern Organised Crime Squad. She was not charged, but the allegations were serious enough to blemish a reputation. Sources confirmed the youth leader and employee of the State Attorney General’s Department was suspected of using drugs.”

The same article goes on to sympathise with the plaintiff:-

“If Hage-Ali had gone on to win the national award – as many believed she would – her name would have sat alongside previous winners, including swimmer Ian Thorpe, tsunami widow and charity worker Tricia Broadbridge and rugby union great Mark Ella. It will not happen now – and that is a tragedy for the young woman who did so much to help young Muslims find their way in Australian society.”

236. I do accept that the publicity damaged the plaintiff’s reputation and that it may not have occurred had she not been arrested. However, if the publicity, in its final analysis alleged no more than that the plaintiff was a cocaine user then I do not see how the damages she alleges flow from the publicity can be attributed to the wrongful arrest.

237. If the plaintiff’s case is that she would not have relinquished the award but for the arrest then I have some difficulty in accepting the humiliation of the return of the award as a basis for general damages. This is because, as I have generally already covered, there is a fundamental inconsistency in accepting that the winner of such a prestigious youth award could at the same time be a cocaine user, behaving in a manner inconsistent, no doubt, with the ideals of the award.

238. I can envisage many recipients of awards not being of perfect character. For example, a person receiving a award for an act of courage should not be denied the public’s appreciation because he happened to smoke marijuana the day before. The difficulty I have with the plaintiff’s situation, however, is that her conduct as a cocaine user and pretending supplier is entirely at odds with the public persona of the winner of such an award. Had there been no publicity and, for example, it emerged during a trial of Mr B that he had supplied drugs to the plaintiff then, I feel sure, the plaintiff would have relinquished the award if it was not first withdrawn.

239. The effect of the above observations and findings is that, as far as general damages are concerned, I am of the view that they should be restricted to the immediate effects of the wrongful arrest, in particular the hours of detention and perhaps some days thereafter but not affected by the subsequent media interest.

240. On this basis it is important to reach some conclusions about what occurred at the police station. If the plaintiff’s allegations of mistreatment are correct then the level of damages must be affected. If they are not correct then damages will still flow but be restricted to the stress and humiliation which one would attribute to a wrongful arrest but without the extra features alleged by the plaintiff.

241. The evidence from the police officers denied any misconduct on their part. The plaintiff’s case on this aspect relies on three elements.

(a) Her own evidence about the threats and treatment she received at the police station.

(b) The evidence of Witness A to the extent that it corroborates the plaintiff’s allegations.
(c) The use of the arrest for an ulterior motive, in particular the obtaining of her mobile phone, but much more significantly the application of pressure on her to co-operate and assist in the strengthening of the case against Mr B.

242. I think, on the probabilities, the facts generally favour the defendant’s position but not entirely. For example the plaintiff’s evidence at T 130.5 was not challenged (see paragraph 41 above).

243. I do not accept that the plaintiff has so little credit that I simply should not accept any allegation she makes. However, and this is to some degree a product of the defendant’s wrongdoing, there is an air about the plaintiff’s allegations which suggests an approach of “defence is the better part of attack” so that as a salve to the humiliation and loss of reputation which she suffered she has painted a picture of the police conduct in which she sees their actions as a personal attack on her rather than an objective assessment of their conduct. Thus, for example, if while in the police station she heard Mr B and his colleagues making a noise she might well have interpreted the situation as being deliberately intended to intimidate her.

244. I have already stated how impressed I was with Phillips and it would be inconsistent with this acceptance to find that he and his colleagues were engaging in acts of intimidation and threatening behaviour. On the other hand, one must also recognise that the police were acting to secure the best possible result from their point of view and one can readily imagine comments being made which might, to the plaintiff, seem like attacks on her personally.

245. One matter in my view is beyond dispute, and despite the submissions of the defendant about an almost innate evilness in the plaintiff, she was unquestionably distressed at the police station. Exhibit 4, the ERISP recording, may show that the plaintiff appeared to answer questions voluntarily but it also depicted a very distressed young woman. The plaintiff’s reaction to her predicament would have been enough, in my view, to encourage her to co-operate with the police in regard to Mr B, but I would also accept that there may have been comments made to aid this encouragement. I also note that the “meat” comment was not allegedly made by any of the officers that gave evidence (T 135.9).

246. The police conduct in relation to the mobile phone is an example of the officers acting in a manner which, while not being unlawful, indicated their preparedness to make the most of a situation. I have no doubt that the detectives at the plaintiff’s home, when suggesting the plaintiff bring her mobile phone, did not do so out of any sympathy for the plaintiff but rather in order to access the records within the mobile device.

247. See separate document.

248. The plaintiff was arrested at about 7am and released at about 10.30am. Thus her ordeal lasted some 3 ½ hours. During this time she would have been confused, humiliated, distressed and worried about the implications of her arrest.

249. The plaintiff submitted that general damages should be in the order of $25,000 or more. This assessment was based on the general damages continuing through the following weeks including the effects of the publicity. I have already concluded that the plaintiff’s general damages should be restricted to the period following her arrest and detention but not including the effects of the publicity. Thus the plaintiff’s assessment must be reduced.

250. The defendant’s submission was that $5,000 would be the maximum I might consider. As an indication of the level of damages that would be applicable I was referred to Coyle v State of New South Wales [2006] NSWCA 95 where a person who had been wrongfully arrested and detained for some hours received, on appeal, compensatory damages of $10,000. At paragraph 99 Tobias JA gave a concise description of what a person wrongfully arrested might endure. He said:-

“It is difficult to imagine, for a person who is otherwise generally a law abiding citizen, a more humiliating experience or a greater shock to one’s equilibrium than being forcefully deprived of one’s liberty for even a relatively short period of time in circumstances which are entirely unjustified. This is all the more so where that curtailment of liberty is accompanied, as in the present case, by the detained person being handcuffed and marched through a crowd of onlookers and then incarcerated in a police paddy wagon, locked in a cell at the police station and fingerprinted and photographed as a criminal. Not surprisingly, the whole experience must have been both humiliating and highly embarrassing.”

251. The defendant said that the plaintiff’s case was not as serious as Mr Coyle’s experience and also pointed out that the plaintiff was not “otherwise generally a law abiding citizen”.

252. The plaintiff submitted that I should not take too much from Coyle because every case needed to be assessed on its merits and the distress of one person was not necessarily comparable to the distress of another. I did not think that the defendant relied on Coyle for any greater purpose than as a guide but I nevertheless take the plaintiff’s point that I should assess Ms Hage-Ali individually. There is no contributory negligence in this case, nor does the plaintiff’s conduct as a cocaine user affect her right not to be arrested lawfully. However, in assessing her compensatory damages I think I can take into account the background upon which her wrongful arrest arose. On this basis, and in the light of my above findings, but accepting the distress, humiliation and upset caused to the plaintiff, I assess compensatory damages at $7,000.

Economic loss

253. The submission made by the plaintiff is as follows:-

“It is submitted that adopting ordinary principles of causation, her wrongful arrest and imprisonment played a material contribution to her decision to leave the country, at least in part, because of fears for her safety.”

I have the following difficulties with this submission:-

(a) The plaintiff’s fears for her safety are not a product of the wrongful arrest. They are a product of the threats made by Mr B.

(b) Had the plaintiff been given a CAN this presumably would have come to the attention of Mr B and his reaction may have been the same.

(c) It can reasonably be assumed that even had the plaintiff not given a statement to assist in the prosecution of Mr B that he would have viewed her as a source of information against him and would have given her to know that she ought not co-operate with the police. In that circumstance the threats may have been more severe.
(d) The defendant offered to assist the plaintiff with her security but she apparently denied there was a problem.

254. For the reasons just stated I am not satisfied that the plaintiff has suffered economic loss as a result of the wrongful arrest.

Aggravated and exemplary damages

255. The defendant submitted that aggravated or exemplary damages should not be awarded absent proof of malicious conduct on the part of the police. I do not agree that that is a correct statement of the law, in particular regarding exemplary damages (New South Wales v Riley (2003) 57 NSWLR 496 at paragraph 138).

256. In New South Wales v Ibbett (2006) 229 CLR 638 at paragraph 31 the High Court said that:-

“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.”

The court then went on to quote with approval the judgment of Spigelman CJ in the NSW Court of Appeal in relation to the distinction between aggravated and exemplary damages (paragraph 34). The High Court then went on to say this:

“In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobration of that conduct, the court may choose to award one sum which represents both heads of damages and no element more than once.”

257. My findings in this case essentially confine the wrongful conduct, or at least its effects to the arrest and subsequent detention. If the starting point is that arrest is an action of last resort then I think it must follow that making an arrest in disregard of this fundamental principle will be an indication of the wrongfulness of the conduct (attracting exemplary damages) and the resulting need for some extra damages to reflect the harm to the plaintiff (aggravated damages). On this basis I intend to allow one sum for both heads of damages.

258. In assessing the amount of these damages I also take into account the plaintiff’s conduct which brought her to the attention of the police and gave them grounds for suspecting she may have been involved in the supply of cocaine. Were it not for the fact that the wrongful arrest was a contravention of a person’s most basic rights I do not think the facts would have given rise to aggravated or exemplary damages. Taking both sides of the argument into account I assess aggravated and exemplary damages, in total, at $7,500.

259. In summary, the damages I have awarded are $7,000 for compensatory damages and $7,500 for a combination of aggravated and exemplary damages. As the damages are for a closed period I will allow interest for 2.9 years at 10%. This is $4,205. The total is $18,705. I will give judgment for this sum.

260. Absent any special costs orders I will order that the defendant pay the plaintiff’s costs.

CITATION:	Hage-Ali v State of New South Wales [2009] NSWDC 266
HEARING DATE(S):	8/12/08-12/12/08, 17/12/08, 30/3/09-3/4/09, 6/4/09-7/4/09, 4/5/09, 1/7/09, 21/9/09-24/9/09
JUDGMENT DATE:	14 October 2009
JURISDICTION:	Civil
JUDGMENT OF:	Elkaim SC DCJ
DECISION:	See paragraph 259
CATCHWORDS:	Wrongful arrest - Imprisonment for collateral purpose
LEGISLATION CITED:	Civil Liability Act 2002 Civil Procedure Act 2005 Law Enforcement (Powers and Responsibilities) Act 2002
CASES CITED:	Andrews v New South Wales (2004) 1 DCLR 230 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Corby v State of New South Wales [2009] NSWDC 117 Coyle v State of New South Wales [2006] NSWCA 95 Houda v State of New South Wales [2005] NSWSC 1053 Mason v Demasi [2009] NSWCA 227. New South Wales v Ibbett (2006) 229 CLR 638 New South Wales v Riley (2003) 57 NSWLR 496 Re Bolton; ex parte Beane (1987) 162 CLR 514 Sangha v Baxter [2007] NSWCA 264 Sangha v Baxter [2009] NSWCA 78 State of New South Wales v Ibbett (2005) 65 NSWLR 168
PARTIES:	Iktimal Hage-Ali (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	1883/07
COUNSEL:	G Melick SC and J Sheller (Plaintiff) P Bodor QC and P Saidi (Defendant)
SOLICITORS:	Greg Walsh Solicitor (Plaintiff) Crown Solicitor’s Office (Defendant)