Haque v State of Victoria
[2014] VCC 2035
•5 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-10-01354
| MOHAMED ZAHIDUL HAQUE | Plaintiff |
| v | |
| THE STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12, 13, 14, 17, 18, 19, 20 and 25 November 2014 | |
DATE OF JUDGMENT: | 5 December 2014 | |
CASE MAY BE CITED AS: | Haque v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2035 | |
REASONS FOR JUDGMENT
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Subject: Intentional torts
Catchwords: Whether restraint and handcuffing plaintiff constituted battery – whether conduct of police amounted to assault- false imprisonment – whether detention of plaintiff was unlawful – burden of proof – defamation, whether defamation is available in the absence of written or spoken words – whether conduct indicating that the plaintiff was under arrest in respect of a crime constitutes defamation – causation of injury – mental injury
Legislation Cited: s178(2) of the Evidence Act 2008; Defamation Act 2005
Cases Cited:Slaveski v State of Victoria [2010] VSC 441; Haque v State of Victoria [2013] VCC 1035; Tomasevic v Travaglini (2007) 17 VR 100; Love v Attorney-General (NSW) (1990) 169 CLR 307; Underhill v Sherwell [1997] NSWCA 325; Watkins v State of Victoria (2010) 27 VR 543; Mirror Newspapers v Harrison (1982) 42 ALR 487; Photi v Target Australia Pty Ltd [2007] NSWDC 265
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr M Haque (in person) | |
| For the Defendant | Mr R Gipp | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
1 On 9 August 2009, Dr Haque was driving a taxi in Swanston Street, Melbourne. It was a Sunday, around lunchtime, when a man and woman attempted to hail the taxi. According to Dr Haque, who was the only witness to give direct evidence on this matter, the woman boarded the taxi on the passenger side rear and the male passenger walked around the back of the taxi and claimed that Dr Haque had driven the taxi forward over his foot as he was attempting to board it. A short verbal altercation developed, the woman got out of the taxi and apparently the male passenger approached police officers who were nearby. Dr Haque continued to drive the taxi north in Swanston Street.
2 Leading Senior Constable Azzopardi was on duty in Swanston Street on that day as a member of the Critical Incident Response Team (then known as the Force Response Unit “FRU”). There were three other police members with him, Sergeant Windhager, Senior Constable Ince and Leading Senior Constable D’Andrea. The police officers were in a dark blue van specifically equipped to deal with particular events such as sieges. Although there was some dispute between the parties as to the precise type of vehicle, it was agreed that the police were not patrolling in a divisional van. In any event, the police vehicle was being driven by Mr Azzopardi on that day.
3 The male passenger who had been involved in the verbal altercation with Dr Haque approached the police vehicle and described a taxi running over his foot. According to Mr Azzopardi, the taxi driven by Dr Haque was still visible in Swanston Street and the police vehicle set off in pursuit. After some indication was given from the police vehicle, Dr Haque turned left into La Trobe Street and stopped his taxi. The police vehicle stopped just behind him.
4 Mr Azzopardi approached the taxi and spoke to Dr Haque who was still seated in the vehicle. His licence was requested and was taken back to the police vehicle by another police officer so that its details could be verified on the computer terminal available to the police. Mr Azzopardi informed Dr Haque of the report that had been made and shortly afterwards Dr Haque stepped out of the taxi. A short time later, Mr Azzopardi advised Dr Haque that he was under arrest. In a relatively short period of time, he was handcuffed and required to sit on the gutter whilst the police at the scene arranged for other police to attend with the divisional van to convey Dr Haque to the Melbourne West Police Station in Flinders Street.
5 The evidence revealed that the reason for Dr Haque’s arrest was based upon information given to Mr Azzopardi at the scene following the licence check conducted shortly after his taxi had been stopped. The evidence showed that the police had become aware that there was an outstanding warrant for the apprehension of Dr Haque issued by the Sunshine Magistrates’ Court in October 2008.
6 Dr Haque was not immediately handcuffed and the circumstances in which he was arrested, subsequently handcuffed and later dealt with by police are matters for determination in this trial.
7 Dr Haque’s proceeding claims that he was subjected to unlawful assault, battery, false imprisonment and subjected to actions which constituted defamation by reason of the events occurring on 9 August 2009. The hearing before me proceeded over some nine sitting days and was in effect a partial retrial of an earlier hearing.[1] Following that earlier hearing in which Dr Haque’s claim was dismissed, the State of Victoria consented to orders for a retrial in the Court of Appeal on 29 November 2013.
[1]Haque v State of Victoria [2013] VCC 1035.
8 Dr Haque was self-represented in prosecuting his case before me and I was assisted by a document entitled “Causes of Action” and signed by Dr Haque on 3 November 2014. Following some short discussion at the commencement of this hearing and with the agreement of Mr Gipp of Counsel who appeared on behalf of the defendant, it was determined that the hearing before me would deal with Dr Haque’s claims in relation to false imprisonment, battery, assault and defamation. I specifically ruled that Dr Haque was precluded from bringing a claim for malicious prosecution which had been dealt with in the earlier hearing in the County Court and was not the subject of any order for retrial from the Court of Appeal.
The evidence
9 Dr Haque gave evidence in support of his claim and called evidence from Dr Stella Kwong, his treating psychiatrist. The defendant called evidence from Leading Senior Constable Azzopardi and three other police officers who were with him on that day. Evidence was also led from the two police officers who attended in the divisional van and conveyed Dr Haque to the City West Police Station where he was bailed later that afternoon. Numerous exhibits were also tendered by both parties.
10 Ultimately very little of the evidence was greatly in dispute between the parties. The sequence of events described by Dr Haque in his evidence did not differ greatly from the evidence given by each of the police officers. There were many areas of common ground between the parties:
·Dr Haque, whilst driving his taxi in Swanston Street, Melbourne, had experienced a verbal altercation with an intending male passenger with the male claiming Dr Haque had run over his foot.
·The male person had complained to nearby police who were then in a Critical Incident Response van, also in Swanston Street.
·After receiving some indication from the police van, Dr Haque stopped his taxi in La Trobe Street just west of the Swanston Street intersection. The police van stopped two to three metres behind it.
·Dr Haque was compliant with the requests made by Leading Senior Constable Azzopardi, at least in the early stages of discussions with him at the scene.
·Dr Haque, once arrested and handcuffed, offered no resistance to police either at the scene or after being taken by divisional van to the City West Police Station.
·Whilst waiting at the scene seated on the kerb after being handcuffed, Dr Haque again offered no resistance and was compliant with police directions given to him.
·Immediately prior to being arrested, Dr Haque was not informed of the genesis of a warrant for his apprehension but merely that such a warrant was valid and needed to be acted upon.
·The charges which had led to the warrant for apprehension being issued were later withdrawn against Dr Haque.
·Dr Haque led no evidence in relation to any physical injury sustained by him as a result of the events occurring on the day, although he claimed damages in respect of non-physical injuries said to have been caused or at least aggravated by those events.
11 Although I expressed considerable concern as to the manner in which the plaintiff was giving evidence before me,[2] I was better able to assess the evidence given by the plaintiff having heard evidence from Dr Stella Kwong who is the plaintiff’s current treating psychiatrist.
[2]Transcript (“T”) 195, L27 – T198, L4.
12 Dr Kwong provided a report to the Court dated 12 November 2014 which was tendered in evidence.[3] Dr Kwong noted a diagnosis made many years ago of schizophrenia and depression. A referral letter from the general practitioner, Dr Margaret Vo, dated 28 January 2013 is attached to Dr Kwong’s report. That referral includes the following:
“Has a history of schizophrenia and depression diagnosed many years ago, requires review of meds as he states his symptoms not well controlled and he still gets AH and paranoid ideations, also issue with low mood recently involved in court cases and seeing a psychologist for psychological therapies.”[4]
[3]Exhibit F.
[4]Exhibit F Attachment 1.
13 Also included in the material provided by Dr Kwong is her letter to Dr Margaret Vo dated 11 September 2013. This is also part of Exhibit F.[5] That report is headed “Patient’s Progress” and states as follows:
“Diagnosis paranoid schizophrenia since 2009.
Medications: ZYPREXA (an antipsychotic) 2.5 mg nocte.
Avanza Soltab 30 mg (an antidepressant) 30 mg nocte.”
[5]Attachment 2.
14 In that report to Dr Vo the following comment is made:
“Chronic schizophrenic illness aggravated by perceived ‘unfair court case hearing’. Since then he is obsessed with finding justice and got self-involved in protracted court hearings representing own self. Needs continual counselling and medication. His obsession and paranoia are consuming all his cognitions and is rendering to be unfitted for any other pursuits and hence is unfit for employment.”
15 The oral evidence from Dr Kwong before me was expressed in somewhat more measured tones which would be expected given that her patient is the plaintiff in the proceeding.
16 Dr Kwong’s evidence included the following exchange:
“HIS HONOUR: If there is an underlying psychosis?---
A:Yes - - -
Q:Diagnosed in the form that you’ve diagnosed as, schizophrenia, can that affect a person’s comprehension of what others not affected in society might regard as normal or reasonable
events?---
A:Absolutely.
Q:In other words, might it cause a person to see things through different eyes?---
A:Absolutely. He actually could not see the other people’s point of view, whether they’re right or wrong. He is obsessional. … He has an underlying psychosis which he is really struggling to keep and hold intact. … So after that he lost everything. So he lost everything and he just broke down. And that’s why I turn up today because I can see he’s so distraught. I thought that if I don’t come he might break down again.”[6]
[6]T370, L3 – L30.
17 It is important to bear in mind the evidence given from Dr Kwong in evaluating areas of conflict between the evidence given by Dr Haque and that given by the various police officers concerning the events of 9 August 2009. I accept the evidence of Dr Kwong as to the underlying mental state which as a matter of probability has affected the plaintiff for many years.
18 Dr Haque is clearly a very well educated man holding the degree of Doctorate of Philosophy in Electrical Engineering. Notwithstanding his high academic achievement, I found his spoken English difficult and this, together with his diagnosed psychiatric condition, made the task of presenting his own case to the Court a most difficult one for him. In line with established authority, I assisted Dr Haque both in terms of leading him in terms of his evidence-in-chief where necessary and frequently seeking the concession of the defendant’s counsel to enable Dr Haque to give his version of events to the Court in as much detail as he regarded necessary, subject to my overall role in managing the case.
19 The evidence revealed the following matters which were not controversial:
·He was born in Bangladesh in 1960.
·He completed his basic university degree in engineering and electronics in 1983.
·He obtained first class honours and became a lecturer at that same university (Bangladesh).
·He completed a Master’s in Science and Electrical Engineering and was appointed an assistant professor.
·In 1989 he left Bangladesh for India on a scholarship program.
·He came to Australia in June 1991 under the Skilled Migration Program. At that time he was married and had a 12 month old daughter.
·He enrolled in Victoria University in 1992, obtained an Australian post-graduate scholarship and completed his PhD in 1997.
·After completing that degree, he obtained work in academic positions at the University of Ballarat, the University of South Pacific in Fiji and further work at Bangladesh University. This work continued up until about 2003 when he returned to Australia.
·When Dr Haque travelled first to Fiji and later to Bangladesh, his family, which now included two children, remained in Australia.
·In 2004 Dr Haque separated from his wife, divorcing in 2005.
20 Dr Haque related in evidence how his children had subsequently performed academically with his daughter obtaining a Bachelor of Biomedical Science from Melbourne University in 2012 and his son being named as the top student in Year 12 at his secondary college. Sadly, he also gave evidence of considerable distress following the breakdown of his marriage in 2004 and the subsequent divorce.
“It was very terrible for me. I was – mental breakdown and I was in a hospital for one month.”[7]
[7]Transcript (“T”) 96, L23-25.
21 As the evidence allowed me to conclude, it was clear that the aberrant behaviour leading to several conflicts with the police authorities and the Court system, commenced at around about the time of Dr Haque’s marital breakdown. There was no evidence suggesting that Dr Haque had ever obtained work in either an academic institution or in professional employment befitting his academic qualifications since returning to Australia in about 2003. He thus found himself in a position where he was driving taxis in 2009 when these events occurred.
22 The evidence conflicted mainly in terms of precisely what had occurred after Dr Haque was stopped in his taxi in La Trobe Street and spoken to by Leading Senior Constable Azzopardi. The plaintiff’s version of events can be summarised as follows:
·Two police officers came to his car when he was still sitting in the cab. They took his driver’s licence details and returned to their car.[8] They firstly took his driver’s licence, his Victorian Taxi Directorate driver’s licence and returned to their car. There was no real conversation at that stage.[9]
[8]T106, L24-28.
[9]T107, L8-12.
·After three or four minutes, they came back. Dr Haque at that stage got out of his taxi and stood behind it in an area of about two to three metres in front of the police vehicle and behind the taxi.[10]
[10]T107, L30 – T108, L4.
·The police officer who had taken his licence (later identified as Mr Azzopardi) stated:
“Do you know you have committed an offence to drive over the foot a person, do you know that?”[11]
[11]T108, L11-14.
·Dr Haque described the conversation as continuing as follows:
“AZZOPARDI: Do you know that?
DR HAQUE: I don’t drove over the - - -
AZZOPARDI: Yes, you have drove it. Do you know what we can do? We can cancel your driving licence, VTD licence, and fine up to $1,000. Do you know that?
Dr Haque described to the Court that the attitude of the police
“was not good and that’s why I kept silent.”
He recalled the conversation further:
“AZZOPARDI: What happened with the passenger? Tell me what happened to the passenger? Why you refused to carry them?”
Dr Haque then described giving an explanation and his evidence was that the police then returned back to their vehicle. When asked as to what he had said to the police, he replied
“I said, he’s an abusive passenger, that’s why I refused to carry them.”[12]
[12]T109, L4-5.
·The same scenario continued with the police again returning to their vehicle and coming back after two to three minutes. Dr Haque’s evidence continued,
“AZZOPARDI: Tell me what happened? You are not giving the truth as straight man.”[13]
[13]T109, L18-19.
He explained in answer to my question that it was being suggested by the police officer that he was not giving a truthful statement. Once again, the policeman pressed him on these matters and Dr Haque recited further snatches of recalled conversation.[14]
[14]T109, L25-30.
·Dr Haque’s evidence described the two police walking between the area at the rear of his vehicle and the police vehicle three to four times. On each occasion they would return to query him about the events which had occurred earlier in Swanston Street. He described this as going on over a period of 20 to 25 minutes. He could see other police in the vehicle as they had not got out during that time.[15]
[15]T110, L15-17.
·The conversation then continued with the police saying to Dr Haque:
“Then they said you’re not allowed to drive anymore. You’re not allowed to drive anymore. Collect all your belongings from your taxi.”[16]
[16]T110, L25-27.
·At this point Dr Haque returned to the front of his taxi to obtain his e-Tag, some coins and a taxi key. He had his mobile phone already in his pocket. He then returned back to the boot to place items on the boot lid. He had inadvertently forgotten to press the boot opener which was operated from the driver’s seat area.
·As Dr Haque attempted to return to the driver’s area of the taxi, he described:
“This police officer immediately hold my hand. … I'm not sure whether he say you’re under arrest or not but hold my hand. Then other police officer ready with the handcuff and he put the handcuff on.”[17]
·Dr Haque then described his hands being handcuffed behind his back and being directed to speak into his own mobile phone that was being held by the police officer (Azzopardi). The phone was being used to call the taxi owner and advise him of Dr Haque’s arrest and the need to move the taxi.
·After the phone call was completed, Dr Haque was directed to sit down on the footpath (he described the kerb area on the southern side of La Trobe Street). According to Dr Haque’s evidence, he requested to stay in either the police vehicle or his own vehicle but this was refused and he was told:
“You need to sit in the footpath.”[18]
·Dr Haque described sitting for somewhere between 20 and 30 minutes when two other police officers arrived, one male, one female. These police officers held a further short conversation with him before he was taken to the Melbourne West Police Station in Flinders Street in a divisional van.
·Dr Haque’s evidence stressed that he had not been provided with any seatbelt in the divisional van for his transportation to the police station.
·The police station to which he was taken was only a short distance away and he described being let out of the van once the roller door had shut behind the police vehicle and taken in a lift to one of the higher floors (Level 2 or Level 3). He was then released from handcuffs and placed in a holding cell. Dr Haque told the Court that the door was locked and he was kept there for 20 to 25 minutes.
·The plaintiff’s evidence was that he believed he had been arrested and taken to the police station because a person complained that he ran over their foot. Dr Haque had denied this allegation.[19]
[17]T111, L17-22.
[18]T113, L18-23.
[19]T119, L31 – T120, L12.
23 After being released from the police station, Dr Haque described taking another taxi to travel to his home in Footscray. His evidence continued in some detail describing how charges laid against him from those events were later withdrawn or dismissed by a Magistrate. No doubt these were matters considered relevant by Dr Haque. He was also at pains to describe how the earlier charges which had resulted in the warrant issuing from the Sunshine Magistrates’ Court were also later withdrawn against him. In the course of my discussions with Dr Haque, I explained the matters which needed to be proved and where the onus of proof lay in relation to the events described by him as having occurred in La Trobe Street on 9 August 2009.[20]
[20]T136, L2-25.
24 During the course of the discussion I had with Dr Haque, the following emerged:
“HIS HONOUR: You believe at that time presumably that the police are acting unfairly towards you generally?---
A:That is my main concern, your Honour.”[21]
[21]T138, L22-24.
25 As the evidence continued, it became increasingly apparent that Dr Haque wished to give evidence concerning other Court cases and acts of perceived injustice that had been occasioned against him by the Victoria Police. I spent considerable time and effort in explaining to him matters concerning the relevance of evidence and the necessity of relating particular torts to their medical consequences if personal injury damages were to be awarded.[22]
[22]T145, L20 – T149, L3.
26 Dr Haque gave evidence at some length about criminal charges laid against him by reason of a later incident which occurred in November 2009. No doubt, Dr Haque regards this matter as intrinsically related to the events of August 2009.
27 Dr Haque was cross-examined by Mr Gipp. Having heard the evidence from Dr Kwong, which I accept, I do not believe much is served by setting out expansive extracts of the subject matter of that cross-examination. Suffice to say Mr Gipp pressed the plaintiff in relation to three inpatient admissions to psychiatric hospitals in 1994, 1995 and 2004. The plaintiff eventually accepted that he had been admitted but vacillated on the circumstances and duration.
28 The plaintiff did admit in cross-examination that he had taken antipsychotic medication and antidepressant medication Zyprexa and Zoloft in 2003 and the combination of those drugs would cause drowsiness which would preclude the plaintiff from driving a taxi. He agreed that in the present proceeding, he had alleged in an affidavit that what police had done to him in August 2009 had required him to take these drugs which had stopped him from working.[23]
[23]T173, L5-28.
29 The cross-examination by Mr Gipp involved extensive puttage of evidence that would be given by the four police officers from the FRU who were later called. It also canvassed evidence to be given by the two police officers who later attended at the scene and conveyed the plaintiff to the City West Police Station. Unsurprisingly, Dr Haque did not agree with the differing versions of events put to him in that cross-examination.
30 Dr Haque tendered a large number of documents including medical material as part of his case. For the sake of completeness, I will briefly describe the exhibits tendered on his behalf.
Exhibit A – a charge sheet and summons dated 24 March 2010. This relates to the plaintiff being charged with a criminal offence arising out of an incident on 5 November 2009 where he drove his motor vehicle towards another person.
Exhibit B – a document from Western Health dated 28 August 2012 noting an attendance by Dr Haque at the Western Hospital in Footscray on 6 February 2004 diagnosed with “psychotic episode”. The exhibit also encloses a document from Werribee Mercy Hospital showing the plaintiff was admitted as a patient from 6 February 2004 to 19 February 2004 and from 20 February 2004 to 17 March 2004 under the care of Dr Paul Katz.
Exhibit C – a record of orders made in the criminal jurisdiction of the County Court on 30 August 2012 showing the plaintiff’s conviction of charges of reckless conduct endangering life and reckless conduct endangering serious injury and ordering him to serve a 12 month community corrections order commencing on 30 August 2012.
Exhibit D – a copy letter of Dr Haque from the Chief Commissioner of Police dated 15/4/14 inquiring specifically as to the number of seats in a Toyota Tarago microbus/van with the registration number MCH063. The exhibit includes a response from Inspector Mark Galliott dated 23/4/14 confirming:
“All Toyota Taragos have a capacity of eight seats.”
It also confirms that members of Critical Incident Response Unit are “authorised to issue penalty notices for traffic infringements.”
Exhibit E – a letter addressed to Dr Haque from the Manager, Public Inquiry Service of Victoria Police dated 17 January 2014. This exhibit relates to the method by which police members are able to search for outstanding warrants.
Exhibit F – the medical report prepared by Dr Stella Kwong dated 12 November 2014 to which I have earlier referred.
Exhibit G – three documents relating to the Federal Magistrates’ Court of Australia proceedings between the plaintiff and his former wife. The documents relate to care arrangements for the children of the marriage and financial settlement between the parties.
Exhibit H – a letter from Dr Margaret Vo at the Millennium Medical Centre in Footscray dated 13 September 2013 and addressed, “To Whom it May Concern”. This short report confirms the prescription of antidepressant and antipsychotic medication since 2009 together with anti-hypertensive medication. It also notes a referral of Dr Haque to Dr Kwong on 28 January 2013.
Exhibit J – the personal property sheet recording Dr Haque’s property taken at the Melbourne West Police Station at 1.37pm on 9 August 2009.
Exhibit K – a statement made by Leading Senior Constable Azzopardi on 16 September 2009 and addressed to Senior Sergeant Johnston. (I will refer later to this statement under the heading of Analysis.)
Exhibit L – a statement by Senior Constable Ince dated 16 September 2009, also addressed to Senior Sergeant Johnston. (I will again refer to this statement under Analysis.)
Exhibit M – a statement from Sergeant Windhager dated 3 September 2009. (Again, this will be referred to under the heading of Analysis.)
Exhibit N – is a document entitled “General Operations Member Activity Sheet” which is a running sheet of the FRU unit involved in the apprehension of Dr Haque on 9 August 2009.
Exhibit O – a certified extract from the Melbourne Magistrates’ Court dated 11 January 2011 noting that the careless driving charge against Dr Haque arising from the events of 9 August 2009 was dismissed with a notation that the charge was issued out of time.
Exhibit P – a statement made by Senior Constable Nick Janiw dated 8 September 2009 and addressed to Inspector Johnston. (This will be discussed under Analysis.)
Exhibit Q – a statement from Senior Constable Janiw dated 7 July 2010 which will also be discussed under Analysis.
Exhibit R – an undertaking of bail witnessed by Sergeant Nottle relating to two theft charges and requiring Dr Haque to appear on 25 September 2009 at the Sunshine Magistrates’ Court.
Exhibit S – a certified extract from the Sunshine Magistrates’ Court showing the withdrawal of two theft charges against Dr Haque and the withdrawal of a further charge of failing to answer bail on 25 September 2009.
31 Before turning to an analysis of the case, I should refer briefly at least to the evidence called by the defendant.
32 All four police officers from the FRU who had been present when Dr Haque was arrested were called to give evidence. The first witness called was Leading Senior Constable Azzopardi who had been the driver of the police response unit van and was the officer who arrested Dr Haque. I found Mr Azzopardi to be an impressive witness who did not, in my view, attempt to reconstruct or embellish the evidence he gave. Again, I will refer to particular aspects of his evidence under Analysis.
33 I was also impressed with the evidence given by Senior Constable Ince, Sergeant Windhager and Leading Senior Constable D’Andrea. Again, I felt the witnesses gave their evidence in a manner that was consistent with a reliable description of the events which are the subject of this proceeding.
34 Further evidence was called from the two police who attended with the divisional van to convey Dr Haque to the Melbourne West Police Station, Senior Constable Janiw and Senior Constable Haralam. Again, I was impressed by the generally forthright manner in which each of these police officers gave their evidence.
35 The defendant also tendered documentary evidence as follows:
Exhibit 1 – a notice of order from the Sunshine Magistrates’ Court on 9 March 2004 relating to proceedings in the Sunshine Magistrates’ Court arising from incidents in February 2004.
Exhibit 2 – certified extracts from the Sunshine Magistrates’ Court dated 16 October 2008 ordering a warrant to issue for the apprehension of Dr Haque in relation to two charges of theft dating from 2005.
Exhibit 3 – is a running sheet completed by Senior Constable Haralam from 9 August 2009.
Exhibit 4 – extracts from the attendance register at the Melbourne West Police Station, also dating from 9 August 2009.
Analysis
36 I had the advantage in this proceeding of hearing oral evidence from Dr Stella Kwong and also reading her report and annexures which were tendered in evidence.[24]
[24]Exhibit F.
37 Although Dr Haque appeared ostensibly courteous and extremely respectful both to the court and the various witnesses who gave evidence before me (including his own treating psychiatrist), it would defy logic for me to reject the opinions set out by Dr Kwong concerning the plaintiff’s mental health.
38 Dr Haque has conducted this litigation on his own behalf, and the law imposes a positive duty on the trial judge to conduct the hearing in such a manner as to ensure that fairness is afforded to Dr Haque as the self-represented litigant and also to the defendant. In a case such as the present one, it was necessary for me to provide assistance to Dr Haque not only as to matters of procedure but also the substantive legal aspects touching upon his claims. In this regard I am mindful that the trial judge “cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented.”[25]
[25]Tomasevic v Travaglini (2007) 17 VR 100 at [142] per Bell J.
39 In virtually every circumstance where I intervened to provide assistance to Dr Haque I did so after raising the matter with Mr Gipp, who appeared for the defendant. It should be noted that on no occasion did Mr Gipp take issue with my intervention to provide such assistance.
40 It is necessary to make findings as to the factual circumstances of the events occurring in La Trobe Street, Melbourne, on 9 August 2009, before proceeding to consider the issues relevant to the particular claims made by Dr Haque.
41 I accept the evidence of Leading Senior Constable Azzopardi in preference to that of Dr Haque as to the state of agitation of Dr Haque after being informed that a complaint had been made against him by an intending passenger. The evidence from Mr Azzopardi was that Dr Haque had become agitated and “unpredictable” in his behaviour after being informed of the complaint made by the passenger. This agitation and unpredictability occurred prior to Dr Haque being informed that he was arrested, and continued after that time, until he was handcuffed. There is no dispute that the incident occurred in La Trobe Street within the Melbourne CBD on a Sunday at around lunchtime, and that there were many pedestrians and cars in the vicinity. There are also tramlines in La Trobe Street, and these events were occurring within that vicinity. Mr Azzopardi’s statement made in September 2009[26] records as follows:
[26]Exhibit K.
“Haque provided me with his details and his Victorian driver’s licence. As soon as I asked Haque about what had occurred on Swanston Street, he became agitated and rude. He then seemed to struggle to comprehend what I was asking but had no problems with answering prior questions ...”
Reference is then made to Azzopardi being informed of a LEAP check showing an outstanding warrant. The statement continues:
“I informed Haque of the warrant and that he was under arrest, he was then given time to collect this belongings from the taxi as he was only the driver and not the owner. Haque was still agitated and kept walking from the boot to the driver door and kept looking in the glove box. I then made the decision to handcuff Haque for our safety and his. Haque was then asked to take a seat on the curb behind the taxi while we waited for a divisional van. Haque seemed to instantly calm down once handcuffed.”
42 Senior Constable Ince was a passenger in the police van driven by Azzopardi. He was probably seated in the front passenger seat. There was no doubt that he was the other police officer who was present whilst Azzopardi had the initial conversation with Dr Haque and later made the arrest. He was certainly present at the time of the arrest and may have taken some physical role in the actual arrest (although he denied such action when cross-examined about it by Dr Haque).[27]
[27]T493, L15–28.
43 Leading Senior Constable Ince also described Dr Haque as becoming agitated and unpredictable in his behaviour before he was placed in handcuffs. I again accept this as accurately describing what occurred.
44 The other two police officers who were with the FRU on that day did not leave the police vehicle prior to the arrest being effected. Sergeant Windhager gave evidence consistent with the contents of his statement made on 3 September 2009.[28] He was cross-examined at some length by Dr Haque as to whether he regarded the handcuffing as necessary. Mr Windhager initially responded that the decision was one for Leading Senior Constable Azzopardi.[29] When asked for his opinion as to how he would react, he responded “I may well have handcuffed you. I may not have. It’s very difficult for me to answer.”[30]
[28]Exhibit M.
[29]T581, L10–13.
[30]T582, L24–28.
45 I accept that it was Sergeant Windhager who had remained in the police van conducting the LEAP check which revealed the existence of the outstanding warrant for Dr Haque’s apprehension.[31]
[31]Exhibit M.
46 Leading Senior Constable D’Andrea was the final police witness called who had been present at the scene of Dr Haque’s arrest. I again regarded him as impressive and reliable witness. He was probably sitting in the rear of the police vehicle with Sergeant Windhager and was completing the running sheet on 9 August. I accept his evidence as an accurate description, particularly of the timing of events and the movement of particular officers relative to the plaintiff. Given that Mr D’Andrea’s role on that day was to complete the running sheet, he would have been in an advantageous position to make an accurate record of events as they occurred. I also accept that his observations of the behaviour of Dr Haque shortly prior to the arrest are likely to be accurate.[32]
[32]T607, L9–T608, L31.
47 When cross-examined about these events, Mr D’Andrea gave similar evidence to that which he had given in chief:
“At one stage you had your hands up and you were saying something.
Q: How do you say that?
A: I didn’t hear what you said but when you got out of the cab - - -
Q: Yes?
A: You walked around and you had your hands in the air as if you were yelling something or saying something and you had an angry look on your face.”[33]
[33]T618, L13–19.
48 All of the police officers described the plaintiff as becoming compliant once he had been handcuffed and was seated on the kerb.
49 It was not in dispute that the taxi had been intercepted by police at around 12.30 and the arrest made at 12.50. This seems consistent with the police evidence about enquiries being made to validate the warrant.
50 None of the police officers who were at the scene gave any good reason as to why the statements tendered from Sergeant Windhager, Leading Senior Constable Azzopardi, and Senior Constable Ince, referred to a warrant relating to an assault. Indeed, the evidence, which I accept, is that once the warrant had appeared on the police computer terminal it was then independently validated by a check with police command centre (D24) to ensure it was valid before any arrest was effected. Clearly this is an approach which appeared sensible and operates an additional safeguard to prevent people being arrested without valid cause. It is also consistent with the timing of events.
51 I should comment briefly on the evidence of the two other police who were called to give evidence, being Senior Constable Janiw and Senior Constable Haralam. In each case I regarded their evidence as reliable. Two statements from Mr Janiw were tendered.[34] Although Dr Haque was not being aggressive or abusive towards police after he had been arrested, I accept the evidence of Mr Janiw that Dr Haque did not respond to questions when Mr Janiw approached him after he had been arrested. Indeed, this was consistent with the evidence which had been given by Dr Haque himself.
[34]Exhibits P and Q.
52 Having had the benefit of hearing evidence in the present case from Dr Kwong, it seems quite understandable that the feeling of indignation or loss of respect that has no doubt fuelled much of Dr Haque’s obsession with this litigation was certainly well in existence by the time Mr Janiw arrived on the scene shortly after 1pm on that Sunday afternoon.
53 I also accept the explanation given by Mr Janiw for not placing a seatbelt around Dr Haque when he was placed in the rear of the divisional van. The trip from the point of arrest in La Trobe Street to the Melbourne West Police Station took no more than ten minutes, and I am not persuaded that the failure by either Mr Janiw or Ms Haralam to place a seatbelt on Dr Haque adds anything to the overall assessment of this case.
54 I was satisfied on the basis of the evidence set out in Exhibit 3 that Senior Constable Janiw spoke to Dr Haque shortly after 1.07pm, and he and Constable Haralam left the scene with Dr Haque in the divisional van at 1.15pm, arriving at the City West police complex at 1.25pm, where the warrant was executed. I am also satisfied that he was released on bail at 2.25pm.
Resolution of the issues
55 In keeping with my obligation to assist Dr Haque I prepared a document entitled ‘guidelines for final addresses’ which was provided to Dr Haque and Mr Gipp prior to final addresses. A copy of that document is annexed to this judgment.[35] Mr Gipp made oral submissions and also provided a document entitled ‘Submissions on behalf of the State of Victoria’, which I have also included as Annexure C. Dr Haque did not seek to address orally but provided me with a document entitled ‘Outline of Submission by the Plaintiff’ which is attached to this judgment and marked as Annexure D.
False Imprisonment
[35]Annexure B.
56 Central to the resolution of this case is a determination of the circumstances leading to the arrest of Dr Haque on 9 August 2009. I am satisfied that the plaintiff was lawfully arrested in accordance with an outstanding warrant of apprehension which had been issued at the Sunshine Magistrates’ Court on 16 October 2008. I am satisfied on the evidence, particularly from Leading Senior Constable Azzopardi, that the plaintiff was informed that he was under arrest and further informed of the reasons for his arrest.[36]
[36]Slaveski v State of Victoria [2010] VSC 441 esp at [103]–[117].
57 It is unnecessary and indeed irrelevant for me to consider the final disposition of charges made against Dr Haque (in this case the theft charges) in determining whether or not there was in existence a valid and lawful warrant for his apprehension on 9 August 2009.
58 I specifically find that Dr Haque was not arrested for an assault, nor was he at any time informed as such, either by Mr Azzopardi or Mr Ince, who was also present in the time immediately prior to Dr Haque being placed under arrest.
59 I reject the argument advanced by Dr Haque challenging the validity of the warrant for his apprehension as not being a judicial order but an instrument made pursuant to a circumscribed statutory authority. Dr Haque refers to the High Court authority in Love v Attorney-General (NSW) (1990) 169 CLR 307. In my view such a challenge to the validity of the warrant is misconceived. I am satisfied that the documents forming Exhibit 2, being the certified extracts from the Sunshine Magistrates’ Court dated 26 May 2011, are sufficient proof in accordance with s178(2) of the Evidence Act 2008 to establish that the warrants were validly issued.
60 I also accept the evidence which was given by several of the defendant’s witnesses that the appearance of a warrant “on the system” would prompt police to make further contact with the central records area to confirm that the warrant was then outstanding prior to any arrest being made. It seems to me that this is a most prudent and logical practice, as the power to arrest is not one that ought be exercised lightly.
61 For the avoidance of any doubt, I specifically find that the arrest of Dr Haque made by Leading Senior Constable Azzopardi was lawful and was not an arrest made on the basis of a void warrant.
62 It is unnecessary in this case to consider submissions concerning the sections of the Crimes Act 1958 which deal with the power of arrest in circumstances where there is no warrant in existence. The defendant led no evidence, nor advanced any argument, to justify the arrest of Dr Haque other than one based upon the existence and validity of a warrant that had been issued in October 2008.
63 Once the arrest had occurred, was it reasonable or necessary for Dr Haque to be placed in handcuffs? The plaintiff specifically argued in this case that there was no basis, and certainly no necessity, for him to be placed in handcuffs - especially handcuffed behind his back. I accept the plaintiff’s contention that the use and application of handcuffs where not justified may constitute a battery.[37]
[37]Slaveski v State of Victoria [2010] VSC 441 at [131].
64 I prefer the evidence given by Leading Senior Constable Azzopardi to the effect that Dr Haque had become agitated when questioned about the incident with the passenger, was observed to clench his fist, wave his arms around with an angry appearance on his face, and specifically that he appeared to become more agitated, pacing between the rear of the taxi and the front door, and acting in an unpredictable manner when informed about the warrant.
65 I accept that the plaintiff did not present any immediate threat to any of the police officers at the scene prior to being placed in handcuffs, and I also accept that he became compliant once the handcuffs were applied. I do find, however, that given these events were occurring in a city street on a Sunday at lunchtime, with numerous pedestrians and vehicles present, and provision for trams, it was a reasonable decision for Leading Senior Constable Azzopardi to place Dr Haque in handcuffs largely to avoid the risk of him being inadvertently involved in a traffic accident due to his apparent unpredictable behaviour and state of agitation. I further find that there is nothing unusual about the handcuffs being applied to the hands behind a person’s back. It would seem perfectly reasonable and prudent to adopt this course, and there is no evidence from any of the police officers to suggest that another method is regularly used.
66 The period of detention in this case is quite short, with the arrest being effected probably at 12.50pm, and Dr Haque was released from the City West Police Station at 2.25pm. He was in custody for a total of one hour and thirty-five minutes. I find this to be a reasonable time. I accept in particular the evidence of Constable Haralam, who was at the time a relatively inexperienced police officer who appears to have made clear notations on the running sheet that was tendered as Exhibit 3. Again, Exhibit 4, the attendance record at the City West Police Station, contains no information which would suggest that the plaintiff remained in custody for a period any longer than necessary to ensure the warrant was executed and he was correctly admitted to bail.
67 I am therefore satisfied that the plaintiff has not made out his case on liability in respect of the tort of false imprisonment.
Assault
68 The claim in respect of the tort of assault is dealt with by the plaintiff in paragraphs [64]–[75] of his outline of submissions annexed hereto. In those submissions Dr Haque quite correctly notes a definition of assault as “an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect”.[38]
[38]Plaintiff’s Outline of Submissions at [71].
69 The particulars relied upon are in my view quite unrelated to any overt act indicating an immediate intention to commit a battery. The plaintiff has complained that he was threatened by Leading Senior Constable Azzopardi with the loss of a driver’s licence, a $1000 fine, and arrest, if he did not tell the truth about what had occurred with the intending passenger in Swanston Street. There was no threat of battery. I am not satisfied, in any event, that the words complained of by the plaintiff were actually said by Mr Azzopardi or any other police officer. Even if these words had been said, they would not be capable, in my assessment, of supporting any claim based on assault.
70 For the sake of completeness, I do not regard the action taken by Senior Constable Janiw in changing the handcuffs on the plaintiff before he was taken from the scene as in any way constituting an assault. The plaintiff does not specifically address this conduct in his outline of submissions, but it was part of the overall circumstances occurring on the day, and it is appropriate that I should make some finding in relation to it.
Battery
71 The tort of battery could be established by the evidence in this case, which is uncontradicted, that the plaintiff was forcibly touched, at least by Leading Senior Constable Azzopardi, and handcuffed without his consent. I am persuaded that on balance Leading Senior Constable Ince, as a matter of probability, also made physical contact with the plaintiff at or about the time of his arrest without the plaintiff’s consent. In Slaveski’s case, Bell J states:
“ If a police officer physically restrains a person for the purpose of effecting an arrest, the officer will be liable in battery if the arrest is unlawful.”[39]
[39]Slaveski v State of Victoria [2010] VSC 441 at [243].
72 Therefore, in the present case the actions taken by Leading Senior Constable Azzopardi and probably Leading Senior Constable Ince are capable of constituting battery.
73 Physical contact made in the course of affecting a lawful arrest is a defence to the tort of battery. The onus of proof rests with the defendant to establish that the contact with the plaintiff otherwise constituting the battery was lawful, in that it was occasioned whilst effecting a lawful arrest. I have been referred by the defendant’s counsel to authorities of Underhill v Sherwell[40] and Watkins v State of Victoria.[41] These authorities each deal with the establishment of “reasonableness” or “proportionality of response”.
[40][1997] NSWCA 325.
[41](2010) 27 VR 543 at [74].
74 It is clear that the defendant bears the burden of such proof. Having found that the arrest of Dr Haque was lawfully carried out, I am satisfied that the defendant has established that the contact made with the plaintiff in the course of affecting the arrest and conveying him to the Melbourne West Police Station was lawful and by no means disproportionate to what could reasonably be expected. The plaintiff’s claim in respect of battery is also dismissed.
Defamation
75 The plaintiff’s final claim is in relation to defamation. The plaintiff’s outline of submissions deals with this aspect of his claim in paragraphs [49] to [63]. I accept that the plaintiff has been particularly aggrieved by the events of 9 August 2009. I also accept that conduct alone can constitute a defamatory matter. This is accepted by the defendant.[42]
[42]Submissions on behalf of the State of Victoria at [18].
76 The defendant submits that the conduct (ie placing the plaintiff in public view seated on the footpath for 25 minutes when handcuffed) does not impute that the plaintiff is a criminal. The defendant says that the imputation that should reasonably be drawn is that the plaintiff has been arrested and is suspected of having committed an offence. Reference was made to the High Court authority in Mirror Newspapers v Harrison.[43] Reference was also made by the plaintiff to a decision of the New South Wales District Court in Photi v Target Australia Pty Ltd[44] which concerned a plaintiff falsely accused of shoplifting at a Target store.
[43](1982) 42 ALR 487 at [492]–[493] per Mason J.
[44][2007] NSWDC 265.
77 I accept that the placing of the plaintiff, in full view of pedestrians on a busy city street, in handcuffs, on a Sunday, would at the very least imply that he had been lawfully arrested and was probably guilty of an offence. The actual circumstances of this case, involving four officers from the FRU, together with two other police officers arriving in a divisional van, would do nothing to lessen the perception of criminality that would most probably be conveyed to the ordinary reasonable passer-by.
78 Notwithstanding any negative imputation, whether of criminality or something less than that, I have come to the conclusion that the actions leading to the plaintiff being placed “on display” were based upon a belief that was substantially true; ie, that a warrant existed for the apprehension of the plaintiff, and, too, that the unpredictable behaviour by the plaintiff immediately before and at the time of his arrest was such that it was reasonable to handcuff him before he was conveyed to the police station.
79 Section 25 of the Defamation Act 2005 provides a defence of justification:
“It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”
80 In the present case I am satisfied that the defendant has established that the arrest was lawful, the handcuffing of the plaintiff was reasonable and justified in the circumstances, and the requirement that the plaintiff sit on the pavement awaiting the arrival of the divisional van was, in the circumstances of this case, proved both reasonable and justifiable. Thus, any imputation, even to the extent of the plaintiff being guilty of a criminal offence (which I have not found), would not be sufficient to sustain an action in defamation, given that I am satisfied that a defence of justification has been made out.
Conclusion
81 Dr Haque undoubtedly has a fervent belief in the validity of the claim pursued in this proceeding. Sadly, he has suffered from mental illness for many years. Additionally, there are many features of the factual matrix in this case that would give any person cause for concern, absent any mental health issues.
82 This case has tragic undertones, as there is little doubt that Dr Haque once enjoyed the acclaim of professional peers for his high academic achievements. This is no longer the case, as his mental health condition precludes him from returning to his former profession, or indeed any work, on the evidence before me.
83 I have found that Dr Haque was lawfully arrested by police in accordance with an arrest warrant that was valid and capable of being executed upon him on 9 August 2009. The fact that the charges in respect of which that warrant was issued were later withdrawn must vex Dr Haque considerably. It may appear harsh to members of the community to recognise that the law provides validity to an arrest on a warrant for offences that are subsequently withdrawn. Nonetheless, it is the validity of the warrant, and not the underlying offences, which provides the lawful character to the action taken by the police on 9 August 2009.
84 Dr Haque’s proceeding will be dismissed. I will hear the parties further in relation to formal orders and the question of costs.
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