Haque v State of Victoria
[2013] VCC 1035
•27 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
DEFAMATION DIVISION
Case No. CI-10-01354
| DR ZAHIDUL HAQUE | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
-AND-
Case No. CI-11-04327
| DR ZAHIDUL HAQUE | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| and | |
| NATALIE BENNETT | Second Defendant |
| and | |
| JOHN TSIANAKAS | Third Defendant |
| and | |
| MATTHEW LANDY | Fourth Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 July and 1, 2, 5, 6, 7, 8, and 9 August 2013 | |
DATE OF JUDGMENT: | 27 August 2013 | |
CASE MAY BE CITED AS: | Haque v State of Victoria; Haque v State of Victoria & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1035 | |
REASONS FOR JUDGMENT
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Subject: DAMAGES
Catchwords: False imprisonment – whether detention of plaintiff was unlawful – Battery – whether the placing of handcuffs on the plaintiff was reasonably necessary – malicious prosecution – whether prosecution of the plaintiff for theft was brought or maintained with malice or without reasonable grounds – defamation – whether an action in defamation lies in the absence of written or spoken words – whether conduct indicating that the plaintiff was under arrest in respect of a crime was capable of giving rise to an imputation that he was guilty of any crime
Legislation Cited: Magistrates’ Court Act 1989, s34(1)(b), s41(1); Evidence Act 2008, s178; Defamation Act 2005, s25, s30(1); Crimes Act 1958, s459; Police Regulation Act 1985, s123
Cases Cited:A v State of New South Wales (2007) 230 CLR 500; Slaveski v State of Victoria [2010] VSC 441; Walker v Hamm [2008] VSC 596; Woodley v Boyd [2001] NSWCA 35; McIntosh v Webster (1980) 43 FLR 112; Clavel v Savage [2013] NSWSC 775; Mirror Newspapers Ltd v Harrison (1982) 42 ALR 487; Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16; Webbie v Nationwide News Pty Ltd (1968) 12 FLR 271
Judgment: Judgment for the defendants in each proceeding.
APPEARANCES: | Counsel | Solicitors |
| The Plaintiff | The plaintiff appeared in person | |
| For the State of Victoria in both proceedings | Mr R Gipp | Victorian Government Solicitor’s Office |
| For the Second, Third and Fourth Defendants in proceeding number CI‑11‑04327 | Mr P Lawrie | Moray & Agnew |
HIS HONOUR:
1 Dr Zahidul Haque has brought two proceedings (CI-10-01345 and CI‑11‑04327) – the first against the State of Victoria and the second against the State and individual members of Victoria Police. In each, he seeks damages in respect of a number of causes of action which I shall detail shortly.
2 The two proceedings were heard together.
3 Dr Haque appeared in person, as he was entitled to do.
4 The causes of action pleaded in the two proceedings were relatively complex, and the Statements of Claim filed by Dr Haque were relatively lengthy and difficult to understand. On 11 June 2010, a Judge of this Court struck out both Statements of Claim but made orders permitting Dr Haque to file amended statements of claim.
5 Amended statements of claim were, in due course, filed and served. They were again drawn in an unusual manner which did not properly disclose the various causes of action relied upon by Dr Haque. I was advised at the outset of the hearing that the defendants had brought a further application to have the amended statements of claim struck out, but that when those applications came on for hearing, they were not proceeded with. I was told that following discussions with the Judge before whom the application was listed, the defendants advised the Court that they considered a more practical way of proceeding was to interrogate Dr Haque as to precisely what claims he was making against the various defendants in the proceedings. What followed was that interrogatories were served in each of the proceedings[1] and Dr Haque provided answers, although not in a sworn form, to each.[2] These answers, counsel for the defendants advised me, enabled the defendants to determine what it was that was being claimed against each of them in the proceedings.
[1]Defendants’ Court Book (“DCB”) 11-17
[2]DCB 18-31
6 At the commencement of the hearing, in order to properly determine the nature of the claims being brought in each of the proceedings, I clarified with Dr Haque the claims that he desired to bring against each of the defendants, and later reduced them to writing in a document entitled “Causes of Action”. On the second day of the hearing, and before the commencement of evidence, I confirmed with Dr Haque that these were the claims that he desired to bring. Dr Haque signed that document and it was tendered.[3] The defendants delivered a written response to those claims.[4]
[3]exhibit K
[4]exhibit 10
7 Counsel for all defendants advised me that the defendants understood the nature of each of the allegations made against them and that they had sufficient particulars of the allegations and were in a position to commence the proceedings.
8 The claims brought by Dr Haque arise out of various dealings that he had with members of Victoria Police between 2006 and 2010.
The first proceeding – CI-10-01354
9 In the first proceeding, Dr Haque claims damages, including exemplary damages, from the State of Victoria. The claim for damages is based upon three causes of action:
(a) False imprisonment occurring on 9 August 2009 in Melbourne
Dr Haque alleges that he was wrongfully arrested in La Trobe Street Melbourne, taken into custody on that date by members of Victoria Police, transported to the City West Police Station, and held there for some time.
(b) Battery on 9 August 2009 at La Trobe Street, Melbourne
Dr Haque was placed in handcuffs by members of Victoria Police and remained in handcuffs until he arrived in a police divisional van at the City West Police Station. He alleges that this constituted a battery upon him.
(c) Defamation
Dr Haque alleges that members of Victoria Police defamed him on 9 August 2009 by their conduct on that date when they, in view of a large number of members of the public, placed him in handcuffs, required him to sit on the kerb of La Trobe Street for 25 to 30 minutes, removed his mobile phone from his pocket, dialled a number and held it up to his face in order that he could speak to another person. He alleges that each of these actions implied to those members of the public that he was a criminal.
10 Dr Haque alleges that the State of Victoria is liable for each of the actions of members of Victoria Police referred to above.
11 The defendant denies that it is liable for any of the claims made against it.
The second proceeding – CI-11-04327
12 In the second proceeding, Dr Haque claims damages, including exemplary damages, from four defendants – the State of Victoria, Natalie Passalick, John Tsianakas and Matthew Landy. The second, third, and fourth defendants were, at the relevant time, members of Victoria Police.
13 The claim for damages is based upon two causes of action:
(a) Malicious Prosecution
Dr Haque alleges that the second defendant brought a malicious prosecution against him on 26 August 2008 relating to the alleged theft by him of two mobile phones, and maintained that prosecution until it was withdrawn in September 2010.
(b) False imprisonment
Dr Haque alleges that on 12 February 2010, he was unlawfully arrested at his home in Footscray by the third and fourth defendants, taken into custody, transported to the Footscray Police Station, and held there for some time.
14 Dr Haque alleges that the State of Victoria is liable for the actions of the second, third and fourth defendants referred to.
15 Each of the defendants denies the allegations made against them.
The Hearing
16 It appeared, following discussions in Court with Dr Haque, that he was not in a position to call appropriate evidence concerning quantification of damages and in particular:
(a) evidence relating to his medical condition and the extent to which such condition could be said to have been caused by any of the conduct of the various defendants alleged in the two proceedings; and
(b) evidence of pecuniary loss arising from each or any of the causes of action pleaded.
17 Rather than adjourn the whole matter to provide Dr Haque with further time to assemble such evidence, I considered it was appropriate to split the trial and to hear evidence relating to liability issues separately from evidence relating to quantification of damages. It followed that, in the event that Dr Haque failed to establish any of the causes of action alleged by him against the defendants, evidence concerning damages would be unnecessary.
18 All parties agreed with this course of action. Accordingly, the hearing concerned only evidence relating to the liability of one or more of the defendants in respect of the causes of action alleged in the two proceedings.
Background
19 Dr Haque was born in Bangladesh. He is aged 53. He came to Australia in about 1993. He is an Australian citizen. He is a well educated man. He has tertiary qualifications in Engineering and Technology from universities in Bangladesh. He had worked as a lecturer at Dhaka University. In Australia, he obtained a PhD in Electrical Engineering from Victoria University. He has lectured at various universities including the University of Ballarat, the University of South Pacific in Fiji and the Eastern University in Bangladesh.
20 Dr Haque was married, but is now divorced. He has two adult children.
21 For reasons not made clear in the evidence, by 2006 Dr Haque was working as a taxi driver in Melbourne. He continued driving taxis until August 2009.
22 I shall deal with the various causes of action, as far as possible, in chronological order.
Malicious Prosecution
23 In relation to the allegations of malicious prosecution, I find that the evidence established the matters set out below.
24 On 29 September 2006, Dr Haque attended at the Footscray Police Station and handed in two relatively old Nokia mobile phones to Probationary Constable Natalie Passalick (the second defendant) who was on duty at the front counter at that time. He advised her that he was a taxi driver and that the two phones had, at different times, been left in his taxi by unknown passengers.
25 The bringing of those phones to the police station was an entirely voluntary act on Dr Haque’s part.
26 Constable Passalick asked Dr Haque a number of questions concerning the circumstances in which he had found the phones, how long they had been in his possession, and whether he had used them. As a consequence of his answers, she formed the view that he might have stolen the phones. She requested him to attend at the police station at a later time in order to conduct a recorded interview. On 6 November 2006, Dr Haque voluntarily attended at the police station for that purpose.
27 The interview was recorded. A CD recording of it was played in evidence. That CD and a transcript of it were tendered.[5] The parties agreed that the transcription was accurate, aside from some indistinct passages which were marked as such in the transcript.
[5]exhibit 5
28 In the course of the interview, Dr Haque told Constable Passalick that:
(i) he had had the phones for approximately one year;
(ii) he had used the phones for his personal use for about a year after he found them;
(iii) he had used the phones with the SIM card in them for a time and had later placed his own SIM card in them;
(iv) when asked if he agreed that he had used the phones as his own, he initially said “Not really”, but later, when asked the same question, he said “Yeah, yeah, yeah”;
(v) he had not tried to find out to whom the phones belonged.
29 Towards the end of the interview, Constable Passalick advised Dr Haque that he would be charged with theft of the two phones. She formed a view that his admissions in the interview justified charges of theft.
30 Between the November 2006 interview and April 2008, little appears to have occurred in relation to those proposed charges. During that time, Constable Passalick had made some unsuccessful enquiries as to the identity of the owners of the two phones and as to whether the phones had been reported by any person as missing or stolen. The brief of evidence prepared by Constable Passalick went missing for a time but was later found.
31 Constable Passalick believed a case of theft was warranted against Dr Haque because, firstly, he had admitted that he held the phones for about a year before bringing them to the police station and, secondly, because he had admitted that he had used the phones as his own – initially with their original SIM cards and later with his own SIM card. She considered that his use of the phones as his own indicated an intention to permanently deprive the respective owners of them.
32 In order to proceed with the proposed charges, Constable Passalick required authorisation from her supervisor. She submitted the material to her correspondent Sergeant, Sergeant Quin, for authorisation to proceed.
33 Sergeant Quin advised Constable Passalick that she did not consider that charges should be issued because it involved a theft by admission and there was nothing to suggest that the phones were lost or stolen. She considered that they might have been abandoned. Sergeant Quin made written notes to this effect.[6]
[6]exhibit 24
34 Soon after, Constable Passalick was transferred to the Transit Safety Division of the Police Force. On 24 June 2008, Constable Passalick made an application for non-authorisation of the proposed charges. The evidence was that not only did she require authorisation to proceed with proposed charges, but that she also required authorisation not to proceed with them.
35 On 24 June 2008, Constable Passalick’s application for non-authorisation came before Acting Sergeant Martin Klooster, who, having seen Sergeant Quin’s notes, concurred with her that the brief should not be authorised as there was no evidence to indicate that the phones were stolen and that Dr Haque’s admission was merely that he should have handed the phones in to police earlier than he did. He further noted that the phones were old and could have been abandoned.[7]
[7]exhibit 22
36 Surprisingly, this was not the end of the matter. Sergeant Klooster’s views were conveyed to Acting Senior Sergeant Horan on the same date. On 26 June 2008, Acting Senior Sergeant Horan reviewed the brief, and advised Constable Passalick that:
“Although it is possible that this matter may not proceed to Court it should not impede our professional obligation to investigate the claims fully.”[8]
[8]exhibit 23
37 He directed her to make further investigations before re-submitting the brief.
38 The final decision regarding authorisation was made by Acting Sergeant Pugh who, on 9 August 2008, advised Constable Passalick as follows:
“I have looked through the brief and believe it is a theft by finding. There is sufficient evidence for it as you do not have to have an owner.
He assumed the rights of the owner by using it and he has made admissions.
I have spoken with Acting Sergeant Quin and she agrees and will authorise it with a view to put the defendant on a diversion. I recommend he pay $50 to a charity of your choice.”[9]
[9]exhibit 25
39 On 26 August 2008, a Charge and Summons was issued and filed at the Sunshine Magistrates’ Court.[10] The two charges were identically worded:
“The defendant at an unknown place between 1/1/2005 and 31/12/2005 did steal a Nokia mobile phone being property belonging to unknown victim and valued at approximately $50.00.” (sic)
[10]exhibit 1
40 The wording of the Summons directed that Dr Haque “must go to Court” (being the Sunshine Magistrates’ Court) on 16 October 2008.
41 Constable Passalick’s evidence was that on 5 September 2008, she attended at a particular flat in Eldridge Street, Footscray to serve the Charge and Summons on Dr Haque. Dr Haque had, at the time of the recorded interview, advised her that that was his address. She knocked on the door and it was opened by a young woman who identified herself as Zaara Zadia, of that address.[11] The young woman gave her date of birth which was recorded by Constable Passalick. Her Mobile Duty Return (also known as a Running Sheet) was tendered.[12] The notes in the Return were made contemporaneously by her. The date of birth provided by the young woman enabled Constable Passalick to calculate that she was 25 years’ old.
[11]Transcript (“T”) 754
[12]exhibit 16
42 Dr Haque admitted that, at all material times, he had resided at that flat in Eldridge Street. However, he denied receiving the Charge and Summons. Further, denied that he knew any person named “Zaara Zadia” or that any woman had ever resided at that address with him during the relevant period. He had shared the flat with other persons from time to time but not with a woman.
43 The evidence of one or other of Constable Passalick or Dr Haque must be incorrect. I accept that of Constable Passalick. It does not necessarily follow that Dr Haque’s evidence was untruthful. It may be that there was a young woman visiting temporarily of whom he now has no recollection. I accept that the Charge and Summons may not have been passed on to him by the person who received it from Constable Passalick. There may be other explanations consistent with honesty on his part.
44 I accept that Constable Passalick believed that she had served the Charge and Summons on a person apparently residing at the premises and apparently over the age of sixteen years. This would be proper service pursuant to s34(1)(b) of the Magistrates Court Act 1989 (as it was then worded).
45 In any event, Dr Haque did not appear at the Sunshine Magistrates’ Court on 16 October 2008. His evidence was that he had no knowledge of the requirement for him to attend because he had not received that Charge and Summons.
46 On that date, a Magistrate made the following Order:
“Order a Warrant to arrest issue for the apprehension of the accused who fails to appear on summons. Adjourned to a date to be fixed at Sunshine Magistrates’ Court.”[13]
[13]exhibit 2. A certified copy of the Magistrates’ Court Register was tendered.
47 The “accused” was identified on the Court record as Dr Haque.
48 Constable Passalick was later advised that Dr Haque had failed to appear on that date. She was not at Court on that day. The system was that, had Dr Haque appeared on that date and pleaded guilty, the matter would have been disposed of then and there, in her absence. If he had appeared and pleaded not guilty, the matter would have been fixed for a contested hearing at a later date and she would have attended then to give evidence.
49 Although he had been told clearly by Constable Passalick during the November 2006 interview that he would be charged with theft of the phones, Dr Haque heard nothing more about the matter until 9 August 2009.
50 On 9 August 2009, Dr Haque was driving a taxi in Melbourne when he was intercepted and pulled over by a police vehicle. The events that occurred on that date are canvassed more fully later in these reasons. In brief, a police officer requested him to provide his name and to produce his drivers licence, with which direction he complied. A standard check of the drivers licence was carried out. It disclosed that there was an outstanding warrant of apprehension for Dr Haque. Initially, the police officers in attendance did not have knowledge as to what offence the warrant of apprehension related. One of those police officers in attendance, Senior Constable Azzopardi, upon learning of the outstanding warrant, advised Dr Haque that he was under arrest. That arrest and events that followed are the subject of other claims in these proceedings and will be dealt with later in these reasons. It suffices to say that he was arrested, taken into custody and transported to the City West Police Station in a divisional police van by Senior Constables Nick Janiw and Georgia Haralam.
51 On arrival at the City West Police Station, Senior Constable Haralam proceeded to execute the warrant of apprehension. This involved locating the original warrant from the records section at the police station, arranging for a suitable date for Dr Haque to be bailed at Sunshine Magistrates’ Court, signing the warrant and sending that warrant to the Sunshine Court. Dr Haque was bailed to appear on the theft charges on 25 September 2009 at the Sunshine Court. He was given a copy of an undertaking of bail on that day.[14]
[14]exhibit G – exhibit CP-2 to the affidavit affirmed by the plaintiff on 8 June 2012
52 Senior Constable Haralam gave evidence that she had sighted and signed the warrant on 9 August 2009 at the City West Police Station.
53 It appears that Dr Haque again failed to appear on 25 September 2009. A further warrant for his apprehension was issued. It was executed on 12 February 2010. In due course, Dr Haque appeared at Sunshine Court and pleaded not guilty to two charges of theft. The matter was set down for hearing as a contest on 17 September 2010.
54 On 16 September 2010, one day prior to the scheduled hearing, Dr Haque was in attendance at the Sunshine Magistrates’ Court in relation to unrelated charges. He was advised there that the theft charges scheduled for the following day would not be proceeding and that they would be withdrawn.
55 Senior Constable Shoemaker was a police prosecutor at the Sunshine Magistrates’ Court at that time. She had the conduct of the prosecution case in relation to the charges of theft against Dr Haque. She had had no involvement in the matter until shortly before the scheduled hearing date. Two matters came to her attention. Firstly, she was advised that the informant, Constable Passalick, was, at that time, under suspension from duties and could not be contacted directly. Secondly, the recording of the record of interview conducted by Constable Passalick in November 2006 could not be located. The transcript of that record of interview, likewise, was not available. She regarded the record of interview as significant and without it, she did not believe the case could be sensibly prosecuted against Dr Haque. She made unsuccessful enquiries as to where the tape might be located. Constable Passalick had at one time been transferred to Maryborough. Enquiries of the Maryborough Police Station did not result in location of the tape.
56 Senior Constable Shoemaker stated that if she had had possession of the tape, she would have prosecuted the matter. Without it, she recommended withdrawal of the charges to her senior officer, and this was approved. Senior Constable Shoemaker completed a withdrawal report. An unsigned copy of it was tendered.[15]
[15]exhibit 12
57 On 16 September 2010, orders in relation to each of the two theft charges were made as follows:
“Struck out – withdrawn.”[16]
[16]exhibit 13
58 In order to establish a malicious prosecution, Dr Haque bears the onus of proving the following:
(a)that Constable Passalick initiated the criminal proceedings against him – this is conceded by her;
(b)that the criminal proceedings terminated in favour of Dr Haque – this is also conceded as the charges were struck out and/or withdrawn on 16 September 2010;
(c)that Constable Passalick, in initiating or maintaining the prosecution, acted maliciously; and
(d)that Constable Passalick acted without reasonable and probable cause.
59 Constable Passalick denies that the prosecution was brought maliciously or unreasonably.
60 It should be said that many people reading the history of this prosecution might be surprised, firstly, that it was commenced; and secondly, that it was maintained until the day before the contested hearing was scheduled. The mobile phones in question were brought by Dr Haque to the Footscray Police Station on a voluntary basis. This was not a case where he acted belatedly and when prosecution was inevitable. One might conclude that a less enthusiastic police officer would have accepted the phones and sent Dr Haque on his way. That this did not occur however, is not necessarily an indication of malice or that there was an element of unreasonableness in the issue of charges against him.
61 To constitute malice, I must be satisfied that the dominant purpose of Constable Passalick was a purpose other than the proper invocation of the criminal law. That is, I must be satisfied that there was some improper purpose that was the sole or dominant purpose of her commencing and maintaining the prosecution against Dr Haque.[17]
[17]A v State of New South Wales (2007) 230 CLR 500 at 531
62 I find that there was no evidence of malice on her part. She had not had any contact with Dr Haque before he brought the phones into the Footscray Police Station and had had none with him afterwards, save for the occasion when he attended at the police station in November 2006 to conduct a record of interview.
63 Constable Passalick had no apparent ulterior motive to bring any charges against Dr Haque. There is no evidence that she would benefit in any way by the bringing of charges.
64 Further, I do not consider that this is a case where the prosecution was launched on obviously insufficient material. I accept Constable Passalick’s evidence that she honestly believed that there was sufficient evidence to warrant the charges being laid against him. When discouraged from commencing such a prosecution by Sergeant Pugh, she made application for non-authorisation. It was only after a review of the matter by Sergeant Pugh that the prosecution was later authorised by her senior correspondent sergeant.
65 Although one might argue that the prospects of success of the prosecution were somewhat less than those anticipated by Sergeant Pugh, I do not consider that there was plainly insufficient material and that such insufficiency could be regarded as the basis of an inference of malice.
66 Likewise, I do not consider that Dr Haque has established that Constable Passalick had acted without reasonable or probable cause.
67 Constable Passalick had formed her view that there was sufficient evidence to proceed with the prosecution on the basis of answers given by Dr Haque in a record of interview conducted by her in September 2006. In particular, she relied on admissions by Dr Haque given during that interview that the phones had been in his possession for about one year and that, during that period, he had used them for personal use. He was asked about whether he had ever tried to find out who the phones belonged to, and said that he did not try and find that out.[18]
[18]exhibit 5
68 In his submissions, Dr Haque argued that the fact that the two charges of theft had later been withdrawn was, in itself, an indication of malicious prosecution. I do not consider that this is so. I accept the evidence of Senior Constable Shoemaker that the principal, if not the only, reason for the withdrawal of the charges was that the CD recording of the September 2006 record of interview could not be found at the time. Had it been available, I accept that she would have continued with the prosecution, even given the absence of Constable Passalick. Another police officer had been in attendance during the interview (Senior Constable Landy) and he would have been available as a witness to confirm that the CD was a true and accurate recording of the interview.
69 The fact that there were potential defences available to Dr Haque does not necessarily mean that they would have succeeded in court or, even if that were the case, that the prosecution was brought without reasonable and probable cause.
70 Whilst in attendance at the police station during the September 2006 interview, Dr Haque was advised by Constable Passalick that police wanted to take his fingerprints and could use reasonable force to obtain them if he did not consent. She told him that if he was not charged with this offence (that is, the theft of the phones) within six months, the fingerprints would be destroyed. Further, she told him that if the charge was not proceeded with or if he was found not guilty of the offence before the six months, then his fingerprints would be destroyed.[19]
[19]exhibit 5 – page 5 of the record of interview
71 Dr Haque interpreted these statements by Constable Passalick to mean that if the charges were not brought within six months, then the entire case against him would be destroyed. By this, I understand he meant that the entire case would be dropped and would proceed no further. He submitted that this was evidence that the prosecution was malicious and unreasonable. I reject that submission. Constable Passalick did not tell Dr Haque that the proposed prosecution would not be brought after any period of time had elapsed. Her words used in the record of interview and recorded in the transcript of it on this issue speak for themselves.
72 It should be noted that in the transcript of the record of interview (Exhibit 5), Constable Passalick is referred to as Constable Quinsee. I accept that as a consequence of various changes in her marital status, her surname changed from Bennett to Quinsee and then to Passalick over the period between 2006 and the date of the trial.
73 I conclude that Dr Haque has not discharged the onus of proving that Constable Passalick initiated and maintained the prosecution relating to the theft of the phones against him with malice or without reasonable and probable cause. That part of his claim will be dismissed.
False imprisonment – 9 August 2009
74 On 9 August 2009, Dr Haque was driving a taxi in Swanston Street, Melbourne. Near the intersection of Lonsdale Street, he was hailed by a man and a woman. They were Mr Paul Miles and a female companion. The female entered the rear passenger side seat of the taxi. Mr Miles opened the rear driver’s side door. What happened next is uncertain. What is clear is that Dr Haque ordered Mr Miles and his companion from the taxi and then drove in a northerly direction along Swanston Street.
75 Almost immediately afterwards, Mr Miles hailed a passing police vehicle and spoke to its occupants. The occupants were Sergeant Windhager and Senior Constables Azzopardi, Ince, and D’Andrea. They were members of the Force Response Unit (“FRU”) of Victoria Police.
76 Mr Miles complained to those officers that, when attempting to enter Dr Haque’s taxi, the vehicle had moved and run over his foot. He complained that Dr Haque had then ordered his companion and him from the cab and driven away north along Swanston Street a short time before. He gave those officers the registration number of the taxi.
77 The FRU vehicle was driven by Senior Constable Azzopardi. He proceeded north up Swanston Street, where they sighted Dr Haque’s taxi and intercepted it near the intersection of La Trobe Street. The two vehicles came to a halt in La Trobe Street, a short distance west of Swanston Street. He alighted from the police vehicle and approached Dr Haque. He asked him for his name and for his drivers licence. Initially, he said Dr Haque was pleasant. However, when he referred to Mr Miles’ account of the alleged incident at the Lonsdale Street intersection, he said that Dr Haque became quite agitated.
78 Once in possession of Dr Haque’s driver’s licence, Senior Constable Azzopardi returned to the police vehicle in order to run a routine check of the drivers licence and vehicle registration number. This was done by means of a mobile data terminal (“MDT”) situated in the rear of the police vehicle. The evidence was unclear as to which of the four police officers keyed in the licence and registration details but I accept that it was done. I accept that Senior Constable Azzopardi learned from information displayed on the MDT screen, that there was an outstanding warrant for Dr Haque’s apprehension. He returned to the taxi and informed Dr Haque of this. At the time of the arrest, the officers were aware that the warrant related to Dr Haque’s failure to appear in court but were unaware of the nature of the charges pending against him or of any details of his criminal record (if any).
79 Senior Constable Azzopardi determined that he would arrest Dr Haque pursuant to the outstanding warrant, and told him he was under arrest. Dr Haque denied any wrongdoing on his part.
80 Senior Constable Azzopardi arranged for a call to be made to D24 by one or other of the police officers in attendance to arrange for a divisional van to be sent to the intersection to convey Dr Haque to the nearest police station in order to execute the warrant. The FRU vehicle did not have any facility for transporting Dr Haque.
81 A divisional van arrived at the intersection some 20 to 30 minutes later. Dr Haque was conveyed in the divisional van to the City West Police Station where, as detailed above, the warrant was executed and he was bailed to appear at the Sunshine Magistrates’ Court on a later date.
82 As detailed above, some time after Dr Haque was placed under arrest, he was handcuffed and remained so until he was taken by a divisional van to the City West Police Station.
83 I find that Dr Haque was detained by police from about 12.45pm, when he was placed under arrest, until approximately 2.30pm, when he was released from the City West Police Station.
84 In order to make out the tort of false imprisonment, Dr Haque needs to establish, on the balance of probabilities, that he was restrained by police when there was no authority for them to do so or that the period of restraint was not justified in the circumstances.[20]
[20]Slaveski v State of Victoria [2010] VSC 441 at paragraphs [246] to [250]
85 The burden of establishing imprisonment is on Dr Haque. It was conceded by the first defendant that he had been imprisoned. The onus then lies on the defendant to prove justification for so imprisoning him. The defendant submits, and I accept, that the grounds for arresting and detaining Dr Haque on 9 August 2009 were lawful in that the officers in question were acting on the basis of an outstanding warrant of apprehension.
86 Dr Haque disputed the lawfulness of his arrest and detention on two bases.
87 Firstly, he submitted that a warrant for his apprehension had not been issued. I reject that submission. He based that submission on an enquiry that he stated he had made to Sunshine Court. I find that on 16 October 2008, a magistrate ordered that a warrant to arrest be issued for the apprehension of Dr Haque on the basis that he had failed to appear on summons at the Sunshine Magistrates’ Court on that date.
88 I am satisfied that, pursuant to s41(1) of the Magistrates’ Court Act 1989 (as it was then worded), the magistrate had power to issue a warrant to arrest Dr Haque on the basis of his failure to appear in court on that date.
89 Exhibit 2 was an extract of the Register of the Magistrates’ Court at Sunshine for 16 October 2008, certified by the Registrar of the Magistrates’ Court of Victoria. From that certified extract, it is evident that an order was made by Mr Bentley, Magistrate, on that date, for a warrant to arrest to issue for the apprehension of Dr Haque, who had failed to appear on summons. Section 178 of the Evidence Act 2008 provides that evidence of a fact relating to an order made by that Court may be given by a certificate signed by a registrar of the applicable court purporting to contain particulars of the order in question. The certified extract was admitted into evidence on that basis.
90 Dr Haque pointed to the fact that the original warrant had not been produced by the defendants. The defendants tendered a letter from the Senior Registrar of the Sunshine Magistrates’ Court which confirmed that the Court had been unable to locate the file relating to Case No X02610058 relating to the theft charges against Dr Haque.[21] The letter confirmed that the warrant had been issued by the Magistrate on 16 October 2008. Further, I note the evidence previously referred to of S/Constable Haralam that she had, on 9 August 2009, personally sighted and signed the warrant at the City West police station.
[21]exhibit 3
91 Secondly, Dr Haque submitted that because the charges of theft made against him were at a later time withdrawn and struck out, it followed that the arrest based on those charges must have been unlawful. I reject that submission. The warrant is a direction by the Court for the apprehension of the named person, in this case Dr Haque. I find that the police officers involved in the arrest and detention of Dr Haque in August 2009 acted properly and reasonably in taking him into custody once it came to their attention that there was an outstanding warrant for his arrest. Arguably it would have been a breach of their duties as police officers had they failed to do so.
92 I am satisfied, on the balance of probabilities, that a warrant for Dr Haque’s arrest was properly issued on 16 October 2008.
93 It was not submitted by Dr Haque that the period for which he was detained was excessive. In any event, I consider the period involved was reasonable in all the circumstances. Although it was unfortunate that a divisional van took some 20 to 25 minutes to arrive at the scene, I do not consider that this would constitute unreasonableness in the circumstances. The period from the departure from La Trobe Street until the time of Dr Haque’s release from the City West Police Station was a reasonable time to execute the warrant.
94 I conclude that Dr Haque has not discharged the onus of proving that his arrest and detention on 9 August 2009 was unlawful.
Battery – 9 August 2009
95 Dr Haque alleges that he was assaulted by way of a battery on 9 August 2009 when Senior Constable Azzopardi and Senior Constable Ince placed him in handcuffs at or near the intersection of La Trobe Street and Swanston Street. It is not disputed by the defendants that the placing of handcuffs occurred.
96 Nor is it disputed that some 20 to 25 minutes later, upon the arrival of the police divisional van, those handcuffs were removed but replaced with handcuffs applied by Senior Constable Janiw. Handcuffs remained in place until soon after Dr Haque arrived at the City West Police Station. I find that Dr Haque was in handcuffs from about 12.50pm until 1.40pm on that date.
97 The defendants conceded that the placing of handcuffs on Dr Haque constituted a battery. However, they contended that the use of handcuffs was reasonable and, in the circumstances, lawful.
98 Further, the defendants conceded that police officers are not entitled to use handcuffs merely because a person has been arrested. All of the circumstances must be examined to determine whether there were reasonable grounds for their use. If the Court considers that the use of handcuffs was unreasonable, this may constitute a battery.[22]
[22]Slaveski v State of Victoria (supra) at paragraph [131]
99 The defendants referred me to a number of authorities where courts had considered the reasonableness of such or similar conduct by police officers. These authorities confirm that evaluation of such conduct of police officers should be by reference to the circumstances applicable at the time to them and further, that it would not be appropriate to judge such conduct with convenient reference to hindsight.[23]
[23]Walker v Hamm [2008] VSC 596 at paragraph [55]; Woodley v Boyd [2001] NSWCA 35 at paragraph [37]; McIntosh v Webster (1980) 43 FLR 112 at paragraph [113]; Clavel v Savage [2013] NSWSC 775 at paragraphs [98] to [99]
100 I accept that detention of persons by police are sometimes made in an emergency and under considerable pressure. I note the reference by Connor J in McIntosh v Webster[24] to the fact that arrests are frequently made in circumstances of:
“… excitement, turmoil and panic [and] it would [be] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the court room and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.”[25]
[24]McIntosh v Webster (supra)
[25](Supra) at 113
101 The period leading up to the time when handcuffs were placed on Dr Haque may be summarised as follows:
(a)Senior Constable Azzopardi alighted from the police vehicle immediately after Dr Haque’s taxi came to a halt. Initially he said Dr Haque was quite pleasant but as soon as there was mention of the alleged incident at the Lonsdale Street intersection, he became quite agitated. Dr Haque denied the incident as alleged by Mr Miles. His fists were clenched and he was shaking his arms. His face was angry. His anger continued after he was told of the existence of the warrant. Senior Constable Azzopardi stated that he had not feared for his own safety and had not feared that he would be assaulted by Dr Haque. He did not feel physically threatened. Dr Haque was more agitated after being told of the outstanding warrant. He clenched his fists and had thrown his arms in the air. He paced back and forth and appeared to be behaving unpredictably. He was told to collect his belongings from the taxi and put them on the boot. He did so. Dr Haque was told to stay where he was at the rear of the taxi until a divisional van arrived. He did not comply with this direction. He was pacing back and forth from the taxi to the police vehicle, waving his arms around. He became more and more agitated. He and Senior Constable Ince decided to handcuff Dr Haque. This was because he was behaving erratically and unpredictably. At the time, Senior Constable Azzopardi did not know Dr Haque or his history. There was a lot of pedestrian and road traffic about. Senior Constable Azzopardi’s main concern was for the safety of Dr Haque himself – he was concerned he could hurt himself due to the close proximity of road traffic. Neither Senior Constables Azzopardi nor Ince warned Dr Haque that they would handcuff him unless he settled down. After the handcuffs were placed on him, Dr Haque became calm and stayed seated on the kerb. He presented no further problem.
(b)Senior Constable Ince also alighted from the FRU vehicle. He was present when Dr Haque was spoken to by Senior Constable Azzopardi. He said that, after Dr Haque had alighted from the taxi, he was told by Senior Constable Azzopardi of the existence of the warrant. At that point, Dr Haque became agitated and unpredictable. His hands started to fly about and he was talking more loudly. He was not compliant when Senior Constable Azzopardi told him to stay at the rear of the taxi. At one point, he walked away for some distance towards the driver’s door. Senior Constable Azzopardi decided to place him in handcuffs. Senior Constable Ince considered this was a good idea as Dr Haque had become unpredictable and increasingly agitated. After the handcuffs were applied, Dr Haque appeared to calm down.
(c)Sergeant Windhager was one of the occupants of the FRU vehicle. After Dr Haque’s taxi was intercepted, Sergeant Windhager remained in the police vehicle. He observed Dr Haque after he had alighted from the taxi and observed him talking with Senior Constables Azzopardi and Ince. At this point, Dr Haque appeared to be upset, frustrated, agitated, uneasy and was pacing back and forth. He observed Senior Constable Azzopardi put the handcuffs on Dr Haque with Senior Constable Ince assisting. He noted that Dr Haque did not resist the handcuffs. Sergeant Windhager considered Dr Haque was still frustrated for a time after the handcuffs were applied.
(d)Senior Constable D’Andrea was the fourth occupant of the FRU vehicle. He also stayed in the vehicle after Dr Haque’s taxi was intercepted. He observed Senior Constables Azzopardi and Ince alight from the police vehicle, approach Dr Haque and speak with him. He was unable to hear any conversation that occurred between them. After Dr Haque alighted from his taxi, he had his arms raised; he appeared angry and upset; he walked around between the taxi and the police vehicle. At one point, Senior Constable D’Andrea said that he knew that Dr Haque had yelled out something whilst his hands were raised and his face was angry. He observed Senior Constables Azzopardi and Ince arrest Dr Haque and place him in handcuffs. He expressed the view that from his observations, the handcuffing of Dr Haque was the right decision as he had seemed angry, upset and appeared non-compliant with instructions. He thought it was best for everyone’s safety and welfare.
(e)Dr Haque denied that he had acted in a way that warranted being handcuffed. He denied being agitated or non-compliant. He stated that he had been asked to get his belongings out of the taxi and understood that he was to place them in the boot. He retrieved his belongings from the taxi and, upon reaching the boot, he realized that he had forgotten to operate a lever in the taxi to open the boot. He had placed his belongings on the top of the boot and then went to return to the driver’s door with the intention of entering the taxi to open the boot. He took a couple of paces towards the driver’s door whereupon he was reprimanded for not staying at the rear of the taxi. Shortly after he was handcuffed.
102 I find that none of the four police officers considered that Dr Haque constituted a danger to them or to any of the pedestrians passing by. Nevertheless, they considered him unpredictable at a time when there were a relatively large number of members of the public nearby. Further, there was relatively heavy motor vehicle traffic passing close to the police vehicle and the taxi.
103 Although one might be critical in hindsight of the police for applying handcuffs, and one might argue that, especially with hindsight, it was unnecessary in all of the circumstances to do so, I am not of the view that Dr Haque has demonstrated that the application of the handcuffs was unreasonable or unwarranted at the time. It would be easy, in hindsight, to look at Dr Haque’s appearance in the courtroom, where he appeared generally to be of a quiet demeanour, as an indication of how he would have appeared to police officers back in August 2009 on La Trobe Street. However, plainly, that is not how I should approach the matter. All four police officers were of the view that he was acting in an agitated and unpredictable manner.
104 I also take into account that, at the time Dr Haque was handcuffed, the police officers concerned were aware that there was a warrant outstanding for his arrest but did not know to what offences or alleged offences it related, and further that an allegation had been made by a member of the public that he had, a short time before, driven his taxi over a person’s foot and the driven away from the scene.
105 In all of the circumstances, although I am not convinced that Dr Haque constituted a danger to police officers, members of the public or to himself, I am not satisfied that Dr Haque has discharged the onus of showing that the actions of the police officers involved was unreasonable in all of the circumstances.
106 Accordingly, Dr Haque’s claim in respect of battery is not made out.
Defamation
107 Dr Haque alleges that he was defamed by the police officers who arrested him on 9 August 2009. He alleges that, in full view of members of the public:
(a)he was placed in handcuffs, implying to members of the public in the vicinity that he was a criminal;
(b)he was forced to sit on the kerb and footpath whilst in handcuffs for some 25 to 30 minutes, implying to members of the public in the vicinity that he was a criminal; and
(c)his mobile phone was taken from his pocket, the number of the owner of the taxi was dialled by Senior Constable Azzopardi and the phone was held up to Dr Haque’s face in order that he could speak to the owner and request the taxi to be moved from the intersection. He alleges that this would have implied to passing members of the public that he was a criminal.
108 The defendant denies that the conduct of the police officers in placing Dr Haque in handcuffs, requiring him to sit on the kerb or in the alleged use of his mobile phone, constitutes defamation. It submits:
(a)that the conduct alleged by Dr Haque is not defamatory of him;
(b)the conduct as alleged does not constitute the publication of any defamatory matter;
(c)alternatively, if the conduct did constitute publication of defamatory matter, it relies upon defences of:
(i)justification, in that the defamatory imputations carried by the matter of which Dr Haque complains are substantially true – s25 Defamation Act 2005; and
(ii)qualified privilege, in that the members of the public who witnessed the conduct complained of had an interest in observing such conduct and that it was reasonable in the circumstances – s30(1) Defamation Act 2005.
109 Publication of a defamatory statement is normally achieved by the written word (libel) or the spoken word (slander). Dr Haque made no submissions concerning the manner in which defamatory imputations could be conveyed but I raised the issue with him and counsel for the defendants. Counsel were unable to refer me to any case where the defamatory imputation was achieved by conduct alone.
110 I note that the term “matter” where appearing in the Defamation Act 2005 is defined as including:
“… (d) a picture, gesture or oral utterance; and
(e) any other thing by means of which something may be communicated to a person.”[26]
[26]Section 4 Defamation Act 2005
111 For the purpose of these reasons, I shall assume that it is possible to convey defamatory imputations to another by way of conduct and in the absence of written or spoken words.
112 In essence, Dr Haque alleges that the fitting of handcuffs amounted to a communication (by that conduct) to pedestrians passing by that he was a criminal, in the sense that he was guilty of unidentified crimes.
113 The defendants submit that it is trite to say that a person is not a criminal until he is found guilty of a criminal offence.
114 Insofar as Dr Haque submitted that it could be inferred from his arrest or from the fitting of handcuffs that he was a criminal or guilty of a criminal offence, I was referred to a number of authorities indicating the contrary.
115 In Mirror Newspapers Ltd v Harrison,[27] Mason J said, at page 493:
“As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.”
[27](1982) 42 ALR 487 at [492] – [493]
116 At page 493, his Honour said:
“… there must be reasonable cause for the informant's belief that the plaintiff has committed the offence. When the plaintiff is arrested pursuant to a warrant under s 23 or s 59 of the Justices Act, the issue of the warrant is a consequence of a judicial discretion by the justice or magistrate issuing the warrant… But the ordinary reasonable reader, unaware of this refinement, will still conclude that it is the informant who suspects, with reasonable cause, that the plaintiff has committed the offence.”
117 These comments were made by his Honour in the context of a newspaper report indicating that the plaintiff had been arrested and charged with a particular criminal offence.
118 This is not the case before me. Here, at the very most, the sensible passerby might have concluded that Dr Haque had been placed under arrest for one reason or another. In fact, that was true – he had been arrested as a consequence of an outstanding warrant of apprehension that had been issued some time earlier by a judicial officer. No more could have been understood. So much was, in fact, true.
119 Even if one of the police officers present at the time had spoken loudly and clearly to a passersby that Dr Haque had been placed under arrest pursuant to an outstanding warrant for his apprehension, this could not bear the imputation that he was guilty or even probably guilty of any offence. It might be properly interpreted as being an indication that Dr Haque had been arrested and charged with some unidentified offence. Similarly, it could not, in my view, bear the imputation that he was guilty of any offence or that he was a criminal.[28]
[28]See Mirror Newspapers Ltd v Harrison (supra) at paragraph [493]; Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16; Webbie v Nationwide News Pty Ltd (1968) 12 FLR 271 at page 281
120 Accordingly, I consider that, even if I accept that the alleged conduct on the part of the police officers was capable of giving rise to defamatory imputations, I do not consider that they were capable of giving rise to the imputation that Dr Haque was a criminal. Rather, I consider that the conduct was capable of no more than imputing that he had been placed under arrest and that there were reasonable grounds for doing so. In that sense, I consider that the imputation was justified.
121 The defendant also submitted that a defence of qualified privilege was available in respect of any publication by conduct found to have been made. In view of my findings concerning the imputations that the alleged conduct was capable of bearing, it is not necessary for me to deal with this matter. For my own part, I would doubt that there was the necessary reciprocity of interest to justify a finding of qualified privilege. For the reasons stated, I come to no concluded view on the issue.
122 It follows that Dr Haque’s claim in relation to defamation must fail.
False imprisonment – 12 February 2010
123 On 12 February 2010, Senior Constable John Tsianakas (the third defendant) and Senior Constable Matthew Landy (the fourth defendant) arrested Dr Haque at his home in Footscray and took him into custody. He was transported by a police divisional van to the Footscray Police Station.
124 I find that the events leading up to this incident were as follows:
(a)On a date in or after November 2009, a person named Mohamad Alamgirr lodged a complaint with Senior Constable Hanah Chapman (then stationed at Footscray Police Station) that, on 5 November 2009, Dr Haque had deliberately driven his motor vehicle at Mr Alamgirr in Footscray. Mr Alamgirr had narrowly managed to avoid being run down by Dr Haque, according to the allegation. Senior Constable Chapman had spoken to two independent witnesses to the incident who had confirmed Mr Alamgirr’s version of events.
(b)Senior Constable Chapman wished to conduct a record of interview with Dr Haque concerning these allegations.
(c)On 12 February 2010, Senior Constable Chapman requested Senior Constables Tsianakas and Landy, who on that day were on mobile duty in Footscray, to attend at Dr Haque’s residence in Footscray and arrest him on suspicion that he had driven a motor vehicle deliberately at Mr Alamgirr with intent to cause him injury. She advised them of the allegations made by Mr Alamgirr and the two witnesses. Each of Senior Constables Tsianakas and Landy gave evidence to the effect that on the basis of what they had learned from Senior Constable Chapman, they formed a conclusion that there were reasonable grounds for believing that Dr Haque had committed the alleged offence.
(d)Senior Constables Tsianakas and Landy attended at Dr Haque’s flat in Eldridge Street, Footscray on that date. They advised him that he was under arrest, on the basis that he had, in the previous November, driven his car deliberately at Mr Alamgirr with intention to injure him. Dr Haque reacted calmly. At the time, he was given the opportunity to change into more appropriate clothing and gather belongings. He was then escorted to a divisional van, where he was then transported to Footscray Police Station.
(e)It had been the belief of Senior Constables Tsianaris and Landy that the interview of Dr Haque would be conducted by Senior Constable Chapman. However, on their arrival at the Police Station, Senior Constable Chapman was in a distressed condition for unconnected reasons and was unable to play any further role that day. Senior Constables Tsianakas and Landy were requested to conduct a record of interview with Dr Haque concerning Mr Alamgirr’s allegations. They spent a short time looking at the file relating to that complaint and then conducted a record of interview which was recorded by a visual DVD. That record of interview was played and tendered in evidence.[29]
(f)On completion of the record of interview, it was established by Senior Constable Landy that there was a further outstanding warrant of apprehension for Dr Haque relating to the alleged theft of the mobile phones referred to earlier in these reasons. Senior Constable Landy executed that warrant and arranged for Dr Haque to be re-bailed to a later date.
(g)Dr Haque was then permitted to return home.
(h)In all, Dr Haque spent approximately 1.5 hours in custody between the time of his initial arrest at his flat in Footscray and his release from the Footscray Police Station.
[29]exhibit 6
125 In evidence, Dr Haque denied that he had been told by either of Senior Constables Tsianakas or Landy the reason for his arrest. He had not challenged his arrest or complained about the absence of reasons for it because, he stated, he was too scared to do so.[30]
[30]T 291
126 Both Senior Constables Tsianakas and Landy were clear in their evidence that they had arrested Dr Haque pursuant to s459 of the Crimes Act 1958, on the basis that they believed, on reasonable grounds, that he had committed an indictable offence, in that he had deliberately driven his motor vehicle at Mr Alamgirr in November of 2009. Both gave evidence that they had formed that belief on the basis of their conversation with Senior Constable Chapman earlier that morning.
127 Dr Haque’s principal submission was that his arrest was unlawful because he had not been told the reason for it.
128 Having heard the evidence of Dr Haque and Senior Constables Tsianakas and Landy, I am satisfied that the Senior Constables did make clear to Dr Haque that he was being arrested in relation to the allegations brought by Mr Alamgirr that he had driven his motor vehicle at him the previous November.
129 Dr Haque also alleged that he had not willingly remained at the Footscray Police Station to give the record of interview to Senior Constables Tsianakas and Landy.
130 In the record of interview, Senior Constable Tsianakas is recorded as advising Dr Haque that he was not obliged to say or do anything but that anything he said might be given in evidence. When Dr Haque indicated that he had not fully understood this, Senior Constable Tsianakas told him again that he did not have to say or do anything, but that anything he did say or do was going to be recorded. Later, Senior Constable Tsianakas said:
Q: “So, you don’t have to say anything if you don’t wish to – to say. It’s your choice, okay. Do you understand that?---
A: Not completely, sorry.
Q: Do you understand that you don’t have to talk to me if you don’t want to? It’s your right - - - ?---
A: Okay.
Q: To say nothing at all?---
A: But I’m not going say nothing.
Q: Okay. Do you understand what I’m - - - ?---
A: Yeah.
Q: What I mean now?---
A: Yeah.
Q: So it’s your right?---
A: Yeah. Yeah. Yeah.
Q: Okay?----
A: Yeah. Okay.”
131 Senior Constable Tsianakas advised Dr Haque at that point that he may communicate with or attempt to communicate with a friend or relative, a legal practitioner or, in the event that he was not an Australian citizen, the Consular office of the country of which he was citizen.
132 Dr Haque gave evidence that, notwithstanding the matters recorded on the video and audiotape of the interview, earlier in the interview Senior Constable Tsianakas had paused the recording and told him:
“… you are under arrest, you’re obliged to conduct this interview.”[31]
[31]T 151, L23-25
133 Later in Dr Haque’s evidence, he said that it was difficult to remember exactly what was said during the interview.[32]
[32]T 326, L23-30
134 I have listened to the record of interview and watched the DVD film of it. It is my view that there is no indication of any break in the film or soundtrack of that interview and I reject the evidence of Dr Haque that the interview was paused or interrupted. I do not accept Dr Haque’s evidence that he was, in effect, told he had no choice but to participate in the record of interview. I consider that he was appropriately warned by Senior Constable Tsianakas of his rights not to participate in any record of interview. I consider that having been appropriately warned, he voluntarily agreed to participate in the interview.
135 Given the arrest and the occurrence of the record of interview and taking into account that Senior Constables Tsianakas and Landy wished to acquaint themselves with the file relating to Mr Alamgirr’s allegations against Dr Haque prior to commencing the record of interview, I do not consider that Dr Haque was detained longer than necessary at the Footscray Police Station on 12 February 2010.
136 Accordingly, Dr Haque’s claim of false imprisonment on that date fails.
Liability of the State of Victoria for the tortious behaviour of police officers
137 The State of Victoria submitted that it could not be vicariously liable for the conduct of the various police officers in connection with the various tortious acts alleged against them. It submitted that liability could only attach to the State if it were the case that s123 of the Police Regulation Act 1985 applied.
138 In view of my findings that Dr Haque has failed to make out his case in relation to any of the causes of action pleaded against the various police officers involved in the various events referred to in the above reasons, it is not necessary for me to come to any conclusion regarding these submissions.
Conclusion
139 For the reasons expressed above, I am not satisfied that Dr Haque has established any of the causes of action alleged by him in these two proceedings. It follows that each of the proceedings will be dismissed.
140 I shall hear the parties in respect of any consequential orders sought.
141 I should however say that, in reviewing the evidence that was put before the Court in these matters, it was impossible not to have some sympathy for Dr Haque in respect of the events that confronted Dr Haque on 9 August 2009. Notwithstanding the views of Constable Passalick and her superior, Sergeant Pugh, it is difficult to avoid the conclusion that many other police officers in Victoria would not have considered laying charges of theft against Dr Haque in the circumstances that existed in September 2006.
142 Given the differing views expressed by relatively senior police officers and the lapse of nearly two years following the date the phones were handed in, one might have thought that the charges were not of sufficient importance to warrant such authorisation. Had the authorisation issue been determined in the manner initially thought appropriate by Sergeant Quin and Sergeant Klooster, no charges would have issued; the matter would not have been scheduled to come before the Sunshine Magistrates’ Court; no warrant of apprehension would have been issued. Things would have turned out very differently for Dr Haque when intercepted by police in August 2009.
143 Nevertheless, although some police officers may have handled the matter differently, I do not consider that it could be said that any of the officers concerned in their authorisation behaved improperly or unreasonably. It was not improper for Senior Sergeant Horan to express the view that difficulties in the gathering of evidence to enable the case to proceed to court should not impede the professional obligations of police officers to investigate the claims fully.
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