Jamal v State of New South Wales - [2020] NSWDC 377

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Jamal v State of New South Wales [2020] NSWDC 377
Hearing dates: 6, 7, 8 and 9 July 2020
Date of orders: 17 July 2020
Decision date: 17 July 2020
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
(1) Judgment for the Plaintiff in the sum of $7863.00
(2) I will hear from the parties as to costs.

Catchwords:
TORTS – False Imprisonment – Plaintiff arrested by police for inclosed lands offence – In custody for longer than 6 hours – Whether arresting officer suspected on reasonable grounds under s 99(1)(a) – Whether arresting officer believed arrest reasonably necessary under s 99(1)(b) – Whether the arrest complied with s 99(3)
DAMAGES – Compensatory Damages – Aggravated Damages – Exemplary Damages

Legislation Cited:
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 89
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 117

Cases Cited:
Lule v State of New South Wales [2018] NSWCA 125
Nu v NSW Secretary of Family and Community Services [2017] NSWCA 221
Robinson v State of New South Wales [2019] HCA 46; (2019) 94 ALJR 10
State of New South Wales v Delly [2007] NSWCA 303
State of New South Wales v Le [2017] NSWCA 290
State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496
State of New South Wales v Zreika [2012] NSWCA 37

Category: Principal judgment
Parties: Jon Jamal (Plaintiff)
State of New South Wales (Defendant)
Representation:
Counsel:
Ms L. Goodchild (Plaintiff)
Ms E. Bathurst (Defendant)
Solicitors:
Eddy Neumann Lawyers (Plaintiff)
Norton Rose Fullbright (Defendant)

File Number(s): 2019/395465
Publication restriction: N/A

Judgment

Introduction

The Plaintiff was arrested by police on 14 June 2017 at his home at Majors Bay Road, Concord NSW. He brings proceedings asserting that he was falsely imprisoned by two officers, being Detective Sergeant Macnamara (DS Macnamara) and Detective Senior Constable Alexander (DSC Alexander) at Burwood Police Station. [1] Compensatory, aggravated and exemplary damages are consequently sought. [2]
1. Statement of Claim at [7].
2. Statement of Claim at [29]-[31].
The issues in the case were whether the arrest and consequent imprisonment were lawful in the terms of s 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). It was not in issue that the Defendant bore this onus. According to its pleadings, the Defendant contended that DS Macnamara was the arresting officer who at the time of arrest did suspect on reasonable grounds that the Plaintiff had committed an offence, being trespass on the grounds of a Coptic Church in Rhodes, contrary to a banning notice dated 20 November 2016 and served on the Plaintiff. [3] The Defendant contended that DS Macnamara was satisfied that the arrest was reasonably necessary to:-

Stop the Plaintiff repeating the offence or committing another offence, pursuant to s 99(1)(b)(i) of LEPRA;

Prevent the harassment of, or interference with any person who may give evidence in relation to the offence, pursuant to s 99(1)(b)(vii) of LEPRA; and

Protect the safety or welfare of any person, pursuant to s 99(1)(b)(viii) of LEPRA. [4]
3. Defence at [8(b)] and [10(a)].
4. Defence at [10(b)].

At the outset, the parties provided the Court with a Joint Tender Bundle of documents, which was marked as Exhibit A1. Other documents were also tendered by both parties.

Witnesses

The Plaintiff alone gave evidence in his case. The Defendant called the arresting officer, DS Macnamara, and Sergeants Craig Unger and Simon Moore, who were the Custody Managers at Burwood Police Station at the relevant time.
In assessing the witnesses, I found Sergeants Unger and Moore gave their evidence in a straight forward way which I have no difficulty in. Much of DS Macnamara’s evidence was largely consistent with contemporaneous records. In the time that followed the events he conceded that he had arrested a lot of people and there was a lot of associated paper work. [5] He conceded that at some point prior to giving evidence he had re-read the documentation in the case. [6] However, it was apparent that in giving evidence he sought to give a hindsight reconstruction of what he believed his intentions and actions were. Accordingly, whilst I found him generally reliable I have not been able to accept parts of his evidence, particularly as to his intention to charge the Plaintiff.
5. T 178.14-.18.
6. T 178.20-.180.47.
The Plaintiff gave his evidence through an interpreter although at times was inclined to answer directly in English. I have taken into account his language difficulties and the frustration he exhibited in seeking to express himself. He no doubt felt some grievance, particularly in so far as his relationship with the Coptic Church. Nevertheless, I found him to be a largely unreliable witness who sought to reconstruct events and exaggerate their occurrence to the point of being implausible.

Events of 14 June 2017

The Plaintiff gave evidence that he was a parishioner at St Mary and St Merkorious Church at 2 Cavell Avenue, Rhodes (the Church). The Plaintiff stated that he started going to the Church in 2003 and never stopped. He further stated that he never had a problem with the Church before the date of the arrest or thereafter. [7]
7. T 19.04-.08.
The Plaintiff’s evidence was that he received text messages on WhatsApp to attend prayer meetings on a Friday. [8] He stated he continued to receive messages from the Church until the date of the hearing. [9]
8. T 18.25-19.38.
9. T 20.09-.10; T 20.40-21.20. Tendered as Exhibit E were the text messages.

Morning of the Arrest

The evidence of DS Macnamara was that he was the investigations supervisor of the Burwood Proactive Crime Team. He stated that in that role, it would be typical for him at the beginning of his shift to conduct a review of all the crime that had happened in the preceding 24 to 72 hours to gain an understanding of what had occurred within the command. He stated that on the morning of 14 June 2017 he reviewed a COPS Event 989613590 from 11 June 2017. [10] That indicated that Mr Wafaie Gayed, the Church Administrator of the Church, had been an informant to a matter that had been narrated in the following terms:-

Due to earlier incidents involving the LOC [the Church] and the P/N [the Plaintiff], he had been issued a banning notice and told not to return to the LOC. At the above T/D [about 9.30am, 11/06/2017], the P/N attended the LOC. The P/R [Mr Gayed] told the P/N to leave, however the P/N became argumentative with the P/R. The P/R called for Police to attend.
About 10.40AM, Police attended the LOC and spoke to the P/R. The P/R stated that the P/N eventually left, and no property damage had occurred today. The property damage the P/R referred to on the phone to the police operator was the result of a previous incident. The P/R provided Police with the details of the P/N. A check of the COPS system did not return any person with matching details. [11]
10. T 119.33-120.03.
11. Exhibit A1, Tab 8 at 31.

The record indicated that two officers, Constable Gough-Fuller and Senior Constable Wood, attended the location and spoke to Mr Gayed on 11 June 2017 between 10.34 and 10.45am. Subsequent to that, an entry is made in the COPS report that the two officers again attended upon the Church at 15.41. Ultimately, an entry was made on 13 June 2017 that no further investigations were needed and that all reasonable enquires were completed. [12]
12. Exhibit A1, Tab 8 at 33.
DS Macnamara was asked in cross-examination whether he had listened to the triple-0 call with respect to the 11 June 2017 incident. [13] He indicated that he did not remember mentioning the triple-0 call at any point during his evidence in chief, and in any event, he would not have access to the triple-0 call unless he had requested to have it through another system. [14]
13. This was a call, a transcript of which was contained in Exhibit A1, Tab 9 at 37.
14. T 175.26-.34.
DS Macnamara stated that he then did a person search putting in the Plaintiff’s surname Jamal and first name Jon. It came up as Jon Jamal from a Majors Bay Road, Concord. He stated that what stood out was that the Plaintiff was on bail for a charge then before the Court. [15]
15. T 122.29-.34 and T 123.05-.08.
DS Macnamara stated that as the consequence of his inquiries he saw that the Plaintiff had been charged in relation to an attempted break and enter and malicious damage of a motor vehicle. He also saw that he was on bail, selected the facts and circumstances for what he had been charged with, and read the entirety of the fact sheet electronically. He identified the facts sheet as that contained in Exhibit 2. [16]
16. T 123.05-.45 and 124.05-.13.
The fact sheet related to an allegation of the Plaintiff, having on 20 December 2016 attended the home of a victim, the son of a Priest at the Church, who was known to the Plaintiff for 15 years through the Church activities and then:-

Attempted to break and enter with intent to damage/destroy property at the home of the victim contrary to s 113(1) Crimes Act 1900 (NSW) (the 1900 Act).

Damaged a vehicle belonging to the victim by removing mirrors and the rear windscreen wipers contrary to s 195(1)(a) of the 1900 Act. [17]
17. Exhibit 2.

DS Macnamara stated that he also had regard to a COPS Entry 261096595, relating to an investigation in relation to the damage to a motor vehicle belonging to the son of the Priest at the Church. [18] The COPS entry indicated that the Plaintiff had been identified through personal knowledge of the victim through CCTV footage as the person responsible and was charged on 9 February 2017. [19]
18. T 234.01-.34.
19. Exhibit 6.
DS Macnamara stated that there were about 60 events linked to the Plaintiff and he started to go through a number of those events to get some background in relation to the Plaintiff. [20]
20. T 126.01-.18.
DS Macnamara stated that he looked at a document, [21] being COPS Entry 223515897 which related to a report to police on 28 August 2016. [22] As part of the “Narrative Details”, the informant PR (Person Recording) was recorded as Mr Maher Malik, while the Plaintiff was identified as the PN (Person Named). The narrative of the report indicated:-

Over the past couple of months the PR has contacted the police on two separate occasions alleging that the PN has been harassing him. On both occasions the allegations have not been proven, resulting in a record only being recorded.
At 8:00pm on Sunday the 28^th of August 2016, police once again attended the home address of the PR being [redacted] for a report of similar allegations.
On arrival police spoke to the PR who stated that earlier that morning the PN proceeded to follow the PR and his family after church service. The PR informed police that after the church service had commenced the PR stood out the front of the church building until the PR exited the building. The PN starred at the PR until he got in his vehicle and started to drive off. The PR [sic] then quickly got into his vehicle and followed the PR for a short distance before turning off and travelling in a different direction.
Police advised the PR that based on his version of events there was not enough evidence to proceed with any formal action. The PR was content with a record only being recorded. [23]
21. T 176.10-.12.
22. Exhibit 3.
23. Exhibit 3 at 2.

In the earlier summary of the document, the document records that the informant was being stalked by a male named “Gamal Thilopos”. [24] When questioned whether he made any inquiries into that person, DS Macnamara stated not that he could recall. [25] The matter was followed up in re-examination, where DS Macnamara stated that on the Plaintiff’s central name index, it records a number of aliases, and he believed “Gamal” was one of those aliases. [26] Leaving that matter aside, the narrative of the text clearly identifies the Plaintiff as the PN. DS Macnamara next stated that the references to PR and PN in the statement he believed were mixed up, and was able to interpret it, notwithstanding the fact that “Gamal Thilopos” was being referred to. [27]
24. Exhibit 3 at 1.
25. T 176.18-.23.
26. T 234.07-.10.
27. T 176.25-.36.
DS Macnamara then stated he also had regard to a document, being COPS Event Summary 62658812, [28] relating to an allegation of malicious damage of four air conditioning units and engine unit for a cool room at the Church premises said to have occurred between 17 and 19 November 2016. The person reporting was again Mr Gayed. The report recorded that there were CCTV cameras at the front of the Church premises but not at the rear where the air conditioning units were. The narrative indicated that the CCTV cameras showed a “male suspect looking at where the cameras are but not at the rear of the building.” It further recorded that this “suspect” had been banned from the Church.
28. Exhibit 4.
DS Macnamara stated that in addition to the information contained in these COPS reports in their tendered form, there would have been a “CAD job” linked to that event. [29] He conceded that may not take the matter any further than what was contained within the narrative. DS Macnamara confirmed that the narrative indicated that the police attended the site on 21 November 2016 and spoke with a Mr Abeed Mikhail, however, that there were no cameras at the Church, no witnesses and that the area had not been touched since the incident. DS Macnamara confirmed that he had access to that narrative before he himself spoke to Mr Gayed. [30]
29. T 174.17-.18.
30. T 175.25.
The evidence thereafter was that DS Macnamara spoke to Senior Constable McKenzie (SC McKenzie) from Burwood Police Station in relation to the matter that the Plaintiff had been arrested for. After speaking to SC McKenzie, DS Macnamara formed the view that the particular incident of 11 June 2017 required a follow up and consequently he made a follow up call to Mr Gayed asking some clarification questions. [31]
31. T 131.15-.27.
At 8.30am, it appears that a telephone conversation was had with Mr Gayed. DS Macnamara was informed that there were some dignitaries scheduled to attend to pay their respects on behalf of the Prime Minister in relation to some recent incidents that had occurred over the Coptic Church in Egypt. [32] DS Macnamara’s notebook indicates that the Immigration Minister was to be in attendance. [33] DS Macnamara stated that he proceeded to carry out background checks in respect of prior incidents, intelligence and events concerning the Church. A meeting was scheduled presumably with Mr Gayed for 11.30am. [34]
32. T 131.34-.37.
33. Exhibit A1, Tab 13 at 62.
34. Exhibit A1, Tab 13 at 62-3.
At approximately 11.15am, DS Macnamara’s notebook records that he telephoned Mr Gayed again, who informed him that three dignitaries would be in attendance at the Church, including the Assistant Minister for Immigration and the Federal Minister for Reid. DS Macnamara’s notes record that Mr Gayed had CCTV records of a person of interests and recorded that he “will get copy of banning notice”. [35] He arranged to meet with Mr Gayed at 12.00pm. [36] This chronology was also referred to in oral evidence. [37]
35. Exhibit A1, Tab 13 at 63.
36. T 131.44-132.01.
37. T 131.34-.45.

Meeting with Mr Gayed

The evidence of DS Macnamara was that at around 12pm he met with Mr Gayed at the Church who informed him there was CCTV footage in relation to the Plaintiff. He also received some background in relation to a number of incidents relating to the Plaintiff, other than those contained in the event of 11 June 2017. He stated that he gave him a copy of a banning notice, which he observed to be dated 20 November 2016. [38] The notice stated inter alia:-

By receipt of this letter, you are hereby formally warned that you have no longer any right, either express or implied in any form to enter upon or to remain at St Mary & St Merkorious Coptic Orthodox Church 2 Cavell Avenue, Rhodes, and all other adjoining church properties: including 2c Cavell Avenue, Rhodes and 59 Blaxland Road, Rhodes upon which this notice of trespass is given, at any time whatsoever, and for whatever purpose.
38. Exhibit A1, Tab 3 at 8.

DS Macnamara stated that whilst he was there he was given an overview and he commenced making some notes in his notebook about the matters Mr Gayed told him. He stated Mr Gayed played some footage of CCTV recording, indicating the Plaintiff on 2 May 2017 walking in the carpark of Cavell Avenue premises. Consequently, after watching the rolling footage in relation to that and what had been shown to him, at 12.33 he received an email of that footage. [39]
39. T 132.28-.41 and Exhibit 5.
DS Macnamara conceded that the incident of 11 June 2017 was about 6 months after the notice was apparently given. [40]
40. T 136.09-.11; T 218.36-.42.
The statement obtained from Mr Gayed recorded in DS Macnamara’s note book was as follows:-

…
7. HE [the Plaintiff] WASN’T AROUND THE CHURCH FOR SOME TIME, BUT STARTED TO RETURN IN THE LAST COUPLE OF YEARS.
8. THERE IS A FATHER MATTHEW WHO IS A PRIEST AT COPTIC ORTHODOX CHURCH AT KENSINGTON. I WAS AWARE THAT FATHER MATTHEW WAS SUPPORTING THE WIFE AND CHILDREN OF JON JAMAL AS THEY HAD SEPARATED.
9. SOME TIME PRIOR TO THIS 17/11/2016 JON JAMAL WAS CAPTURED ON CCTV VIEWED BY JOE DAVID, A COMMITTEE MEMBER AND SECRETARY OF THE CHURCH. HE APPEARED TO BE LOOKING AT ALL THE CCTV CAMERAS.
10. BETWEEN 17/11/2016 AND 19/11/2016, ABOUT $40,000 (DAMAGE) WAS OCCASIONED TO BOTH DUCTED AIR CONDITIONING FROM OUTSIDE TO THE SUNDAY SCHOOL BUILDING AND BOOKSHOP.
11. I AM AWARE THAT FATHER ZAKI, WHO IS A PRIEST AT THIS CHURCH, HAS A SON CALLED MORKOUS ZAKI WHO HAD HIS HOUSE AT BAULKHAM HILLS BROKEN INTO. JON JAMAL WAS CHARGED FOR THIS. I BELIEVE THIS WAS DONE AS IN OUR FAITH AND CULTURE NO PERSON CAN TOUCH OR HARM A PRIEST DIRECTLY. FATHER ZAKI IS [redacted] YEARS OF AGE.
12. AS A RESULT OF THESE 2 INCIDENTS, ON 20 NOVEMBER 2016 A BANNING NOTICE WAS CREATED BY THE COMMITTEE OF THE CHURCH. BETWEEN THIS DATE AND 23/12/16 WHEN I NEXT SAW JON JAMAL, I SERVED THIS NOTICE ON HIM IN THE LAST BENCH OF THE CHURCH. I HANDED IT TO HIM, BY HAVING TO LAY IT ON HIS LAP AS HE REFUSED TO ACCEPT IT BY HAND AND I EXPLAINED IT TO HIM. HE PROVIDED NO REACTION TO THIS BUT LEFT A SHORT TIME LATER. THIS WAS EXPLAINED TO HIM IN ARABIC.
13. ON A WEDNESDAY OR FRIDAY IN JANUARY 2017, JON JAMAL CAME BACK TO THE CHURCH AS WITNESSED BY MR BADAWY (GAMIL). HE IS A COMMITTEE MEMBER. JON JAMAL CONFRONTED FATHER MATTHEW ATTIA IN THE FRONT ENTRY OF THE CHURCH WHILE SWEARING, USING INAPPROPRIATE OFFENSIVE LANGUAGE IN A LOUD VOICE, BECAUSE FATHER MATTHEW IS SUPPORTING HIS WIFE THROUGH THE KENSINGTON CHURCH.
14. I BELIEVE IN FEBRUARY 2017 JON JAMAL CAME BACK TO THE CAR PARK OF THE CHURCH JUST STARING AT PEOPLE THEY CALLED ME AND I STARTED TO WATCH HIM. HE WAS WALKING UP AND DOWN. I SAID LOUDLY IF YOU DON’T LEAVE THE CHURCH I’M GOING TO CALL THE POLICE. HE LEFT WALKING OUT TO BLAXLAND STREET.
15. ABOUT 9.20 AM ON 11/6/2017 JON JAMAL CAME BACK TO THE CHURCH AS WITNESSED BY MR NAGI BASTA. I WAS RANG BY HIM AND TOLD HE WAS HERE. I SAW JON JAMAL INSIDE THE CHURCH GROUNDS WALKING IN THE FRONT ENTRY. I CALLED 000 TO REPORT THIS AS I BELIEVED A NUMBER OF DIGNATORIES FROM FEDERAL PARLIAMENT WERE DUE AT THE CHURCH THIS DAY. JON JAMAL LEFT BEFORE THE POLICE CAME.
16. THE NEXT MORNING ON 12/6/17 BEING A MONDAY, I GOT A CALL ABOUT 8.30 AM FROM JOE DAVID. HE TOLD ME THAT CCTV FOOTAGE SHOWS JON JAMAL TALKING TO SAMEEM WHO IS A MEMBER OF THE CONGREGATION INSIDE CHURCH GROUND. JON JAMAL LEFT. HE WOULD HAVE BEEN HERE AT 8 AM AND ON A MONDAY THERE IS NO LAWFUL OR LEGITIMATE REASON TO BE AT CHURCH OTHER CLEANERS OR A MASS FOR 4 PEOPLE [sic].
17. I FEAR FOR MEMBERS OF THE CHURCH DUE TO THE BEHAVIOUR OF JON JAMAL. HE WAS BANNED FROM 20/11/16 FROM COMING TO CHURCH BUT CONTINUES TO DO SO AND CONFRONTS PRIESTS.

18. ON SUNDAY 18^TH JUNE 2017 WE ARE DUE TO HAVE THE HONOURABLE ALEX HAWKE AND CRAIG LAUNDY COME TO THE CHURCH TO PASS THE IMMIGRATION MINISTERS CONDOLENCES FOR RECENT CHRISTIAN KILLINGS IN EGYPT.
19. JON JAMAL IS NOT TO REATTEND OUR CHURCH FOR ANY REASON.

DS Macnamara’s notebook indicates that the statement was signed at 1.35pm. It also records that the banning notice was provided on 20 June 2017. DS Macnamara indicated that this was an error [41] and it appears common ground that the notice was in possession of DS Macnamara on 14 June 2017.
41. T 135.29-.48.

Attending the Plaintiff’s Home

DS Macnamara’s evidence was that after he had the statement, the USB and the banning notice, he suspected on reasonable grounds that the Plaintiff had committed a number of entering inclosed land offences, and upon doing a risk assessment from the police computer, it was his intention to attend the Plaintiff’s premises. He stated that he didn’t identify any threats to police, and that nothing stuck out that he would be at risk with one other plain clothes officer. [42] He noted that because the Plaintiff was on bail at the time, he didn't think there was any other alternative other than to arrest him for the offences. Consequently, at about 2.07pm he picked up DSC Alexander who he had dropped off at another location in relation to another matter. [43] He stated that he collected him in front of Coles on Majors Bay Road and from there they went to the Plaintiff’s residence at 171 Majors Bay Road at 2.07pm. [44] When he arrived, he stated that he notified police radio that he was going into the location, which recorded him “going off there” at 2.08pm. [45] When he arrived, he stated that he had a conversation with the Plaintiff. He stated that he had a police lanyard with his identification on and he identified himself as being from Burwood Police Station, along with DSC Alexander and that they were investigating the Plaintiff going to the Coptic Church at Rhodes. He stated he wanted to speak to him in relation to that. At that point he had his mobile phone which had an audio recording app on it, and he proceeded to electronically record a conversation with the Plaintiff after telling him that was what he intended to do. [46] He estimated that the conversation before the recording would have been approximately 90 seconds and would have comprised of only a few sentences. [47] The transcript of the recorded interview was tendered in evidence. [48]
42. T 134.38-135.03.
43. T 135.05-.09.
44. T 136.09-.19.
45. T 135.23-.25 and Exhibit A1, Tab 8 at 30.
46. T 136.47-137.04.
47. T 137.06-.12.
48. Exhibit A1, Tab 16.
The Plaintiff stated that he recalled police arriving at his home at 14 June 2017 at 1.50pm. He stated that DS Macnamara and DSC Alexander knocked on his door, he opened and asked who they were, and they responded that they were the police. [49] He asked what they wanted and they asked him to open the door as they wanted to talk to him. He stated that he opened the door, stated “What’s wrong” to which they said, “You’re under arrest because of a trespass to the church.” [50] According to the Plaintiff, DS Macnamara then asked if he went to the church, to which the Plaintiff responded, “Yes, I go to church regularly”. He stated that he was then told that he was banned from entering that church and they said to him “You were not supposed to go to that church”. He then responded “I’m unaware that I was prevented from entering the church. No one had told me this before.” He then asked who made the allegations against him and was told “You come with us to the police station, and you'll know everything there." [51] According to the Plaintiff this conversation occurred before the recorded interview commenced.
49. T 14.01-.04.
50. T 14.06-.09.
51. T 14.11-.37.
In cross-examination the Plaintiff stated that DS Alexander was scary and he felt he was aggressive. When it was put to him that DSC Alexander did not threaten him in any way he stated “that’s what I believe”. When it was put to him that nothing happened he conceded that that this was so but added that he was scared and DSC Alexander was angry. [52]
52. T 68.3-69.17.
The Plaintiff stated that police then asked for his permission to start recording and he gave them permission, and that recording occurred on a mobile phone. He was then asked how long he had been speaking to police from the time they came to the door until the time they started recording. He stated initially that he did not remember because it all happened suddenly. [53] Subsequently, his attention was drawn to his earlier evidence that police attended his home at 1.50pm. The transcript of the recording indicates that it started at 2.10pm. [54] It was put to him that there had been a 20 minute interval between when police arrived and when the recording commenced. He accepted that this was correct. [55] He then stated that his solicitor told him that the recording was around 8-9 minutes and “18 seconds”, and that everything that was transcribed in that recorded interview was said before the recording. Thereafter he was told that they were going to start recording. [56]
53. T 15.35-.40.
54. Exhibit A1, Tab 16 at 73.
55. T 17.01-.12.
56. T 17.33-.50 and T 18.17-.21.
In cross-examination it was put to the Plaintiff that before the recording started, the conversation that he had with DS Macnamara was in the order of 1 or 2 minutes. [57] The Plaintiff said it was more, as the transcript was over 8 minutes and what was said in that transcript was what was said beforehand. [58] The Plaintiff conceded that he did not have a watch. [59]
57. T 60.31-.38.
58. T 60.40-.43 and 61.12-.22.
59. T 61.47.

Recorded Interview and Arrest of the Plaintiff

It is not in issue that during the record of interview that the Plaintiff understood what DS Macnamara was saying to him. He conceded going to the Church on 11 June 2017 and that was the last occasion he had been there. [60] When it was put to him that they were investigating an allegation that he had been banned from the Church and he had kept going there, the Plaintiff was recorded as asking who banned him. He was told that it was the committee on behalf of Church that had banned him, and he responded that there was no evidence that they gave it to him. He added that no one banned him and no priest told him so. [61] The Plaintiff informed DS Macnamara that he received messages to attend meetings at Church, which he acknowledged were automated. [62] He stated that he did not speak to anyone on the last Sunday that he attended and that he left straight away. At one point in the interview, the Plaintiff stated to DS Macnamara that it was unnecessary for him to come to his home and waste his time, but he was happy to come to the Police Station and he could give them his number and he would come to them. At that point in the interview, the transcript records:-
60. Exhibit A1, Tab 16 at 79-80.
61. Exhibit A1, Tab 16 at 80-1.
62. Exhibit A1, Tab 16 at 81.

SERGEANT MACNAMARA
143. What we need to do because we are investigating this, um, you need to back to us, come back with us to Burwood police station and we need to talk further about the allegation that’s been made in relation to what the Church is talking to us about.
JON JAMAL
144. I want –
SERGEANT MACNAMARA
145. Are you happy to do that?
JON JAMAL
146. [Unintelligible] for tomorrow?
SERGEANT MACNAMARA
147. Ah, no. I need to do that now. So, but, I want you to understand, in fairness to yourself, that you are under arrest. Okay.
JON JAMAL
148. Now?
SERGEANT MACNAMARA
149. Yeah, yeah, you’re under arrest.
JON JAMAL
150. For what?
SERGEANT MACNAMARA
151. For trespass at the Church.
JON JAMAL
152. [Laughs] Okay, okay I go with you.
SERGEANT MACNAMARA
153. That’s okay, this is the thing we are investigating this and we need to get the side of the story, but we need to arrest you in relation to that and understanding your rights that you don’t have to say or do anything. You understand that?
JON JAMAL
154. Yes. [Laughs]. [63]
63. Exhibit A1, Tab 16 at 83-4.

Just prior to the conclusion of the interview, the Plaintiff described the attending police as “very good people.” [64] He stated in cross-examination that he did this as he had no option as he could be “hit” and “charged with anything. [65]
64. Exhibit A1, Tab 16 at 83.
65. T 69.19-.25
The evidence of DS Macnamara was that based on the content of the statement that Mr Gayed had given him, the banning notice of 20 November 2016, the fact that the Plaintiff was on bail as at 20 December 2016 for an offence that was one month after the banning notice, the CCTV recording and having regard to the fact sheet, he saw no other alternative than to arrest the Plaintiff in relation to the offence. [66] Despite that, when he arrived at the premises, he did not indicate to the Plaintiff that he was under arrest or that he proposed to charge him.
66. T 138.27-.37.

Conveying the Plaintiff back to Burwood Police Station

In evidence, DS Macnamara stated that the interview was completed at 2.19pm. This was the time indicated in question 181. However, in question 171, just moments before, DS Macnamara indicated that the time was 2.16pm. [67] He conceded there were not 3 minutes between those two times, and could not explain it. [68] In any event, it was not in issue that after the recording concluded the Plaintiff requested to get some things within his house, including his keys, wallet and mobile phone. After securing the front door, the Plaintiff and the officers walked through the back of the house. DS Macnamara then took possession of the Plaintiff’s property and searched him, before walking down the driveway to the unmarked police vehicle. [69]
67. Exhibit A1, Tab 16 at 85.
68. T 220.05-.21.
69. T 137.41-.49.
The Plaintiff stated that when arrested, police took him inside to get his keys, phone and wallet and he was told belongings. [70] He stated that he took the wrong phone, stating he had two phones at the time; one that he used for making international calls and his personal phone. [71] The Plaintiff stated that he was driven to the police station following the recorded interview and taking his belongings. He stated that he was put in the back of the car in an “undercover police vehicle”. [72]
70. T 22.19-.23.
71. T 21.45-22.17.
72. T 22.40-23.09.
According to the property docket which was completed by Sergeant Unger on behalf of DS Macnamara at the police station, DS Macnamara indicated the recorded time of 2.20pm was a reference to the time of when the property had been retrieved from the Plaintiff. [73] He further stated that the Field Arrest Form which was completed with DSC Alexander recorded the convey start time as 14.20 and the arrival time as 15.21. [74] However, in the COPS entry, the recorded attendance time ended at 14.26. [75] In his notebook, DS Macnamara indicated that he conveyed the Plaintiff back the Police Station at 2.30pm, [76] and that he arrived at the Police Station at the custody area around 2.45pm. [77] In cross-examination, DS Macnamara could not explain what happened between the time he said he arrived at 2.45pm and 3.21pm indicated on the Field Arrest Form. [78] He indicated that he thought the time of 3.21pm was incorrect. [79] The timing recorded in DS Macnamara’s notebook would appear to accord with the estimate given by the Plaintiff that the time between his residence and the Burwood Police Station would be between 10-15 minutes. [80] However, Sergeant Unger recorded 15.21 as the set time of arrival being when custody was entered and the Plaintiff was introduced to him. He stated, however, that he would speak with the arresting officers and ask the time of arrival so that he could manually change it if required if there had been a delay. [81]
73. Exhibit B and T 140.49-141.12.
74. Exhibit A1, Tab 17 at 87 and T 141.16-.29.
75. Exhibit A1, Tab 8 at 30.
76. Exhibit A1, Tab 13 at 65.
77. Exhibit A1, Tab 13 at 66.
78. T 220.45-.47.
79. T 220.49-221.05.
80. T 65.01-.03.
81. T 242.3-.17
During the travel to the Burwood Police Station, DS Macnamara:-

…We were just making small‑talk in relation to his background. Nothing in order to build ‑ to build rapport with Mr Jamal, but also during that time I commenced asking him whether he needed ‑ would need an interpreter, because of the fact that he was from a non‑English speaking background; that the custody sergeant would offer him one. He indicated that he didn't require an interpreter. I offered him ‑ brought up about whether he needed a support person as well, because, again, the custody sergeant would ask him these questions, and he advised that he has friends, but he didn't need a support person as well. [82]

82. T 139.09-.18.

Arrival at Police Station

After arriving at the Police station and completing the Field Arrest Form as earlier described, DS Macnamara stated that he spoke with the Plaintiff in relation to his mobile phone as to whether he could supply the password for it. The Plaintiff informed him that he would not supply the password because it contained sensitive images, but he was happy to enter his password and then proceeded to use his finger print to unlock the phone. [83] That request appears to have been made at 3.10pm, according to DS Macnamara’s notebook. [84] When going through the phone, DS Macnamara found a travel document from September 2016 belonging to Mr Gayed with all his family’s details in it, and a medical record of Father Yacob, who was referred to in the banning notice. [85]
83. T 142.06-.15.
84. Exhibit A1, Tab 13 at 66; T 142.29-.33.
85. T 143.06-.30.
Those images were photographed. The Custody Management Record indicates that at 15.21, the Plaintiff was cautioned and received a summary of his rights by Sergeant Craig Unger. [86] The Custody Manager completed an acknowledgement in relation to having read the Part 9 rights to the Plaintiff at 3.30pm on 14 June 2017. [87]
86. Exhibit A1, Tab 19 at 108.
87. Exhibit A1, Tab 28 at 274.

Request for Interpreter

DS Macnamara informed the Custody Manager at about 3.40pm of the need to get an interpreter regardless of whether the Plaintiff requested it, on the advice of SC McKenzie who had advised that during the February 2017 proceedings there was no interpreter. [88] The request for an interpreter appears to have been acknowledged as having been submitted by the Department of Immigration and Border Protection Translation and Interpreting Services as 4.05pm. [89] At 4.17pm the interpreting service advised that they were unable to supply an Arabic interpreter of Egyptian dialect and at 4.19pm the request was updated to be an Arabic interpreter. [90]
88. T 144.30-.41.
89. Exhibit A1, Tab 24 at 169.
90. Exhibit A1, Tab 24 at 174
Ultimately at 4.53pm, the interpreting service informed that they were unable to provide an interpreter, and this was communicated to DS Macnamara at 4.54pm. [91] DS Macnamara indicated that he did not receive the email immediately as he was in a meeting with Mr Gayed. His notebook indicates that that occurred between 4.35 and 5.15pm. In that meeting he asked Mr Gayed as to how the Plaintiff had possession of the documents and no explanation was able to be provided. [92] Thereafter, the notes record that in light of no interpreter being available DS Macnamara requested SC Dejani, who spoke Arabic, to speak to the Plaintiff in the dock to advise him of the outcome of the request and ask if he required an interpreter. SC Dejani returned to inform DS Macnamara that the Plaintiff now wanted an interpreter. [93] DS Macnamara stated that he then reviewed the CCTV cover stills and printed some images. He thereafter went to see the Plaintiff. According to his notebook this was at 6.13pm. [94] In evidence, DS Macnamara stated that this was at 6.15pm. [95] DS Macnamara stated that he informed the Plaintiff that no interpreter was available, but the Plaintiff then stated he still wanted to be interviewed and understood his rights. [96] DS Macnamara stated that the Plaintiff was willing to participate in the electronically recorded interview, and that he told him anything he did not understand could be explained to him, and that DS Macnamara would speak slowly in relation to it. He conceded that he didn’t inform the Plaintiff of the next stage of the process, being that he “most likely would have been charged” or that that he “would have been charged in relation to the offences that he was arrested for.” [97] He stated that he had the view that he intended to charge the Plaintiff when he arrested him and he believed there was sufficient evidence to do so, and had the Plaintiff declined at that time to be interviewed he would have started the charge process. [98]
91. Exhibit A1, Tab 24 at 179.
92. Exhibit A1, Tab 13 at 66.
93. T 146.47-06; Exhibit A1, Tab 13 at 66.
94. Exhibit A1, Tab 13 at 66.
95. T 147.12.
96. T 147.08-.15; Exhibit A1, Tab 13 at 67.
97. T 147.36-.42.
98. T 147.46-.50.

Events leading up to and including the ERISP

Mr Gayed left Burwood Police Station at around 5.15pm. [99] It was not in issue that shortly thereafter Sergeant Moore came on duty. The shift was to commence at 6.00pm. He stated that there was an agreement amongst Sergeants to start a little earlier at 5.00pm. [100] At 5.19pm the Plaintiff was spoken to in the dock by Sergeant Unger. At 5.28pm, Sergeant Moore noted that the Plaintiff “appeared well.” [101]
99. Exhibit A1, Tab 13 at 66.
100. T 236.17-.20.
101. Exhibit A1, Tab 19 at 109.
The Plaintiff’s evidence was that while he was at the police station, he asked for his medication from the Custody Manager. [102] He stated that he asked for it several times, but wasn’t sure. Later he stated that he may have asked two or three times. [103] In cross-examination he stated that he was supposed to take his medication at 6.00pm and that while he was in the dock he asked for a painkiller and was told “we don’t have it.” [104] The Plaintiff subsequently added that the first time he asked about the specific medication was during the interview as that was the time he was supposed to take it. [105] Sergeant Moore’s evidence was that he did not recall being asked to provide Panadol, and had he been asked it would have been recorded in the Custody Management Records. [106] He added that he would not give medication without knowing what a person’s conditions were and as he was not medically trained he would call an ambulance officer down to check things. [107]
102. T 34.14-.22.
103. T 34.43-35.05.
104. T 86.24-.31.
105. T 87.05-.09.
106. T 239.32-.35.
107. T 240.01-.05.
Although the Custody Management Records record the Plaintiff having stated that he had back pain and took medication as a result, it also notes him as appearing fine. At 6.40pm, Sergeant Moore records checking on the Plaintiff and again noting that he was seated in dock and appeared well. [108]
108. Exhibit A1, Tab 19 at 109.
At 6.13pm, DS Macnamara records that he spoke with the Plaintiff and advised him no interpreter was available. He recorded that the Plaintiff still wanted to be interviewed and understood his rights. [109] The Plaintiff’s evidence was that he was told that he had to do the interview now or he would have to “stay here until tomorrow.” [110] He stated that he was told this by DS Macnamara and DSC Alexander and he stated them “I take medications; I can’t stay here until tomorrow. I’m happy to do whatever you want.” He added that he couldn’t recall where this was, and it could have been outside of the dock. [111]
109. Exhibit A1, Tab 13 at 66-7.
110. T 28.07-.09.
111. T 28.35-.41.
The Plaintiff’s evidence in this respect is in my view implausible. During the ERISP interview, the Plaintiff made a number of references to his medication. At question 56, the following exchange appears:-

Q56   No, this is me. Do you agree that I, to me, that you initially said that you didn’t want a translator, um, or a support person with you?
A.    Yes. I’m agree because uh, um, I, I want to go back to my home because, it’s the time of my medicine and I have a lot of problem.
Q57    OK. [112]
112. Exhibit A1, Tab 26 at 187-8.

Later on, the following exchange appears:-

Q64   Yep.
A    --- yeah, I don’t, I have no problem with you, it’s this matter, key one I wanted to finish because ---
Q65    I understand.
A   --- I really, I need a, I need my medicine. [113]
113. Exhibit A1, Tab 26 at 188-9.

Subsequently, the interview reveals:-

Q76    In a general sense, can you tell me what your rights are as to what this piece of paper ---
A    I have a ---
Q77    --- explains to you?
A    --- he explained for me, I have a right to Arabic interpreter, I wait, but I wait until he’s come if I like. And, uh, give it to me, ‘cause I’m not rem ---
Q78    Yes.
A    --- I’m not remember. I read until here. He said to me, You are going to….. um, I don’t care, please. I’m, I’m not understand ---
Q79    Well, I just wanted to make sure you ---
A    Oh I’m ---
Q80    [19:04] --- understand
A    --- understand. I won’t finish because at 6’oclock should…..take my medicine
Q81    OK. Well, we’ll go through that and ---
A.    Don’t worry
Q82    --- we can, and if you need to get some medicine we can make ---
A    Ah.
Q83    --- whatever arrangements.
A    No. At, at home.
Q84    Yep, yep.
A    At home.
Q85    But do you understand that the police can ---
A    Yes.
Q86    --- keep you here for 6 hours?
A    Yes. [114]
114. Exhibit A1, Tab 26 at 190-1.

Later on, the transcript records the following:-

DETECTIVE SENIOR CONSTABLE ALEXANDER
Q115    Um, how do you feel at the moment? You feel OK?
A   I’m not too bad, OK
Q116   Yeah.
A   I guess
Q117   Uh ---
A   …..
Q118   --- when you mentioned your medication, what’s that for?
A   I have a medicine, should take it at 6 o’clock for my back and for my, uh, uh, arthritis.
Q119   Oh, so you have some back pain, do you? Or ---
A   Back pain and joint pains. And that’s all, it’s ---
Q120   [19:08] And where’s your arthritis for? Where, where is ---
A   For ---
Q121   --- that in you?
A   --- all my joints.
Q122   OK. All right. How do you feel right now?
A   I’m good.
Q123   You OK?
A   Don’t worry. Don’t worry.
Q124   OK
A   yes. Go ahead.
Q125   All right.
A   I can, squeeze my, my …..
Q126   Yeah, no. I just wanted to make sure that you were comfortable and that ---
A   I am comfortable. I wanted to go ---
Q127   You, you ---
A   --- to home, but it ---
Q128   --- yeah, no, I underst, I understand that but, I, I just wanted to make sure that you weren’t, um ---
A   Thank you so much for that.
Q129   --- you weren’t, like, what we’re doing here isn’t affecting you.
A   It’s OK. Thank ---
Q130    [19:08] Yeah.
A   --- you so much. Thank for you, for kind. [115]
115. Exhibit A1, Tab 26 at 194-5.

At 6.40pm, Sergeant Moore made a notation in the Custody Management Record stating “seated in dock – appears well”. [116] At 6.45pm he was taken to the ERISP Room by Sergeant Moore who asserts that the Plaintiff was read his Part 9 rights. When questioned about it, the Plaintiff is recorded as stating “yes I understand it all. My English is not bad”. [117] The Plaintiff denied that this occurred. [118] Despite denying it however, he conceded he said “Yes. I understand it all. My English is not bad”, [119] though he stated that he said this to DS Macnamara, not Sergeant Moore. [120] Subsequently, however, he denied the contents of the entry in the Custody Management Record relevant to him being read his Part 9 rights. [121] Sergeant Moore reiterated when he moved the Plaintiff in the ERISP room, he gave him a copy of his Part 9 rights, which had already been read and signed by the Sergeant Unger and he read them aloud to him. He reiterated that when he had been spoken to about his Part 9, the Plaintiff said he understood it all and his “English was not too bad.” [122]
116. Exhibit A1, Tab 19 at 109.
117. Exhibit A1, Tab 19 at 109.
118. T 101.01-.03.
119. T 101.05-.10.
120. T 101.12-.18.
121. T 101.39-.48.
122. T 237.33-.42.
On completion of this step, DS Macnamara asked the Plaintiff a number of pre-interview questions, which DS Macnamara signed noting the time as 6.52pm. [123] Although the Plaintiff could not recall signing the questionnaire, he acknowledged that that was his signature. [124] The ERISP was recorded between 6.54pm and 8.47pm.
123. Exhibit A1, Tab 25 at 180.
124. T 24.24-.43.

Consideration

In circumstances where there was no request for medication recorded in the Custody Management Records, Sergeant Moore’s evidence that had such a request been made it would have been recorded, and the observations made and recorded in respect of the Plaintiff, I am not satisfied that the Plaintiff made a request for any medication, Panadol or otherwise, while he was sitting in the dock.
The Plaintiff’s evidence leading up to and including the ERISP was confusing and somewhat inconsistent. Sergeant Moore was not cross-examined as to his rereading of the Part 9 rights. At the outset of the ERISP the Plaintiff appeared to confirm that the Custody Manager had just prior read him a caution and a summary of his Part 9 rights, responding “yeah, we discussed this matter and we agreed to…..this matter, er, regarding interpreter, interpreter, and you promised to helping me, speak slowly.” [125] In all the circumstances, I prefer the evidence of Sergeant Moore which was not only documented but confirmed by the Plaintiff in the interview.
125. Exhibit A1, Tab 26 at 186.
The ERISP makes it clear that the Plaintiff was told police could detain him for 6 hours. It was also recorded amongst the rights contained in Part 9 which had been read to him read to him beforehand. [126] I do not accept in these circumstances that the Plaintiff was told that he had to do the interview or stay there until tomorrow for an interpreter. He was offered the opportunity for his medication to be brought to him but declined. Whilst he may have felt the need to conclude the interview so that he could go home, he was prepared to proceed without an interpreter, provided DS Macnamara spoke slowly and explained anything he didn’t understand. [127] The fact that the Plaintiff was willing to participate in a record of interview was noted by DC Macnamara in his notebook. [128]
126. Exhibit A1, Tab 28 at 273-4.
127. T 147.35-.39.
128. Exhibit A1, Tab 13 at 67.

Post-ERISP

After the ERISP, Sergeant Moore completed the ERISP Adoption Process with the Plaintiff. [129] The Plaintiff was asked about his signature to the Independent Officer’s ERISP Adoption Questions. [130] He stated that he wasn’t sure if it was his signature, but stated that maybe he was scared at the time as his “hand is not good.” [131] The document records that he made no complaints about the interview at the time. Moreover, Sergeant Moore took two checks on the Plaintiff at 7.57pm and 8.54pm and noted that he appeared well. [132] At 9.04pm, the Plaintiff appears to have been returned to the dock. [133] Thereafter, the Plaintiff had a short toilet break between 9.05 and 9.07pm and a cup of coffee at 9.07 to 9.15pm. [134] Although the Custody Management Record states that he was offered a dinner, he declined to eat it. [135] DS Macnamara gave evidence that he offered food to the Plaintiff, however, he declined. [136] Between 9.15pm and 9.30pm, DS Macnamara records that he contacted Mr Gayed to inquire about matters, including the date the banning notice “was served on him”. He also inquired as to whether there was any CCTV available for inside the Church, and notes that it was not and it was only in the foyer. The notebook records that a Personal Violence Order (PVO) was to be issued. [137]
129. Exhibit A1, Tab 26 269-71.
130. Exhibit A1, Tab 27 272.
131. T 24.45-25.07.
132. Exhibit A1, Tab 19 at 110.
133. Exhibit A1, Tab 19 at 110.
134. Exhibit A1, Tab 19 at 110.
135. Exhibit A1, Tab 19 at 111.
136. T 228.17-.24.
137. Exhibit A1, Tab 13 at 67.
Following the interview, the evidence of DS Macnamara was that as the Plaintiff had been adamant during the ERISP interview that the notice had not been served on him, and there was reference to him being overseas later at that stage in the latter part of 2016, there was a tiny bit of doubt. He stated that he was processing what had taken place and what had been said. [138] Later he stated that he believed that during this time the Plaintiff had spoken to him about checking his passport about him being out of the country at the time. [139] In fact, the Plaintiff had not made such an assertion, a matter conceded during submissions. [140] In any event, DS Macnamara determined that a PVO be made to protect the Church. DS Macnamara spoke in terms of another effective means or an alternative way to mitigate the risk to the community of the Church which would prevent the Plaintiff in the short-term returning to the Church until he could substantiate some of the claims the Plaintiff was making during the ERISP. [141]
138. T 151.17-.29.
139. T 152.11-.15.
140. T 261.03-.23.
141. T 153.05-.15.
At around 10.00pm, DS Macnamara’s notebook records that he spoke with the Plaintiff in what was referred to as the “BAS room”. [142] According to DS Macnamara, he advised the Plaintiff that a PVO application was going to be made and that he would be released from custody pending further investigation. DS Macnamara stated that he advised he had the power to issue a direction under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the 2007 Act). [143] However, according to DS Macnamara, he stated that he did not issue such a direction as the Plaintiff was cooperative, indicated that he was willing to stay, was consenting to the PVO and would not attend the church. [144] Accordingly, he stated that at 10.09pm he released the Plaintiff from custody and escorted him via a corridor to the front foyer of Burwood Police Station, giving him a copy of the banning notice which he had requested. His notebook entry records that the Plaintiff was thankful and respectful and confirmed that he would not be going back. [145] This corresponds with Custody Management Records, where Sergeant Moore records at 10.09pm “PVO to be applied for PIC [Person in Custody] to be released to await PVO”. [146] Sergeant Moore reiterated the terms of that notation in oral evidence. [147] He was not cross-examined in respect of it.
142. Exhibit A1, Tab 13 at 67.
143. T 153.25-.29 (Section 89).
144. T 153.29-.31.
145. Exhibit A1, Tab 13 at 67.
146. Exhibit A1, Tab 19 at 111.
147. T 239.09-.14.
DS Macnamara was challenged in relation to his account on what occurred when he spoke to the Plaintiff at around 10.00pm. He denied telling him that he wasn’t going to be charged but confirmed saying that the Plaintiff was no longer under arrest and that they intended to apply for a PVO. He conceded stating that he would be released pending further investigation. [148] It was put to him that he never advised the Plaintiff that there was going to be an application for a PVO, stating that he did, he explained it to the Plaintiff and the Plaintiff consented to it. [149] He further denied telling the Plaintiff to stay in the foyer and not to leave. [150]
148. T 230.32-.39.
149. T 230.41-.47.
150. T 231.06-.12.
The Plaintiff’s account, given through an interpreter, was that DS Macnamara put his arm around his shoulders and took him to an area under a camera and told him he was going to stay there until DSC Alexander told him to leave. Speaking directly, he stated that DS Macnamara told him that he would take him outside to some area until DSC Alexander told him to go home. He stated that DS Macnamara did not tell him why and ultimately told him to stay in the reception. [151] He was cross-examined on this evidence and conceded that he made a promise to never go to the Church, but stated there was no discussion about PVO/AVO application “or anything”. [152] The Plaintiff conceded signing a Receipt of Documents. The time recorded on the receipt is 10.10pm. [153] It appears at one point his property was returned to him, although Exhibit B did not record the circumstances in which that occurred and the Plaintiff could not remember. [154] The Plaintiff said that as DS Macnamara left, he told him he did not want to be involved in the case anymore. [155] He stated that he wanted DS Macnamara to help him leave him so he could leave the police station unharmed. [156] He stated that he was scared sitting in the foyer. [157] He added that he did not understand why he was sitting there in respect of a PVO being applied for. [158] He stated that after he called the police officer in the foyer to ask why he was waiting there, he was put through to the DSC Alexander who told him not to move otherwise he would be arrested and charged for a “serious offence”. He stated he was scared and remained there past 12.00am, after which he was told he was free to go home. [159]
151. T 31.07-.26.
152. T 113.03-.11.
153. Exhibit A1, Tab 21 at 113A; T 114.20-.34.
154. T 115.07-.10.
155. T 116.18-.32.
156. T 116.36-.40.
157. T 116.47.
158. T 117.09-.11.
159. T 117.17-.30.
It is not in issue that at about 12.15am, DSC Alexander advised the Plaintiff that he could leave the Police Station. [160] The Plaintiff stated that he was not advised that the PVO application had been unsuccessful.
160. T 01.30-.37.
On 14 June 2017, DS Macnamara and DSC Alexander completed a COPS Entry. In that COPS Entry:

Following an examination of all available material, investigating police believe that they are not yet in possession of sufficient evidence to proceed with criminal charges. JAMAL has been informed of the condition of the issued exclusion order, and the intention of police to amend the AVO currently in effect upon him. JAMAL has stated that he will abide by any official order issued by police. [161]
161. Exhibit C.

When questioned about this document DS Macnamara stated that he did not have any input into the document. He did not accept that the document was accurate and correct in all ways but did not identify in what way he disputed it. [162]
162. T 232.01-.09.
Following the unsuccessful application, a request was written by DS Macnamara to Mr Gayed seeking additional information. That request was in respect of a number of items, which intersect with the criminal investigation he had been undertaking. Items were provided by Mr Gayed on 15 June 2017. [163] The police records indicate no further investigation was to be undertaken on 20 June 2017. [164]

FINDINGS

163. Exhibit D.

164. Exhibit A1, Tab 8 at 34.

Period of Detention

Submissions

The Defendant particularised its case on the basis that the Plaintiff had been detained as follows:-

The Plaintiff was lawfully detained from about 2:10pm on 14 June 2017 to about 10:09pm on 14 June 2017;

The duration of the Plaintiff’s detention (being approximately 6 hours and 7 minutes) during that period was reasonable:-

the approximately 19 minute period reasonably required to convey the plaintiff from his place of his arrest at 171 Majors Bay Road Concord NSW 2137 to Burwood Police Station between 2:26pm and 2:45pm being disregarded in accordance with s 117(1)(a) of the LEPRA;

the approximately 1 hour and 25 minute period reasonably required to wait for confirmation of whether an Arabic interpreter would be available to assist with the ERISP, between 3:50pm and 5:15pm on 14 June 2017 being disregarded in accordance with s 117(1)(h) of the LEPRA;

the approximately 8 minute period reasonably required to allow for refreshments, between 9:07pm and 9:15pm on 14 June 2017 being disregarded in accordance with s 117(1)(j) of the LEPRA.

On the basis of this calculation, the Defendant contended that the detention period in total was for 7 hours and 59 minutes, from which a period of 1 hour and 52 minutes could be deducted. [165]
165. T 78.15-.30.
The Plaintiff claimed a period from 1.52pm on 14 June 2017 to 12.15am on 15 June 2017, being a period of 10 hours and 25 minutes.

Consideration

The transcript records the interview at the Plaintiff’s residence commenced at 2.10pm. [166] However, at line 89 (7 pages into the transcript), DS Macnamara states “I don’t know if I mentioned the time before, it is 2.10pm.” [167] This discrepancy was not referred to by the parties. The evidence of DS McNarmara, however, was that he notified police radio as to the time of his arrival at the Plaintiff’s home as 2.08pm as recorded in the COPS event reference 989613590. [168] In the circumstances, I am satisfied that the DS Alexander and DSC Alexander did arrive at the Plaintiff’s residence at 2.08pm and that the recorded conversation commenced at around 2.10 pm. I do not accept the Plaintiff’s evidence which asserted an arrival time of 1.50pm. This appeared to be a reconstruction. It is apparent from the content of the recorded interview that apart from some introductory questions confirming what had earlier been stated, the balance was not rehearsed. In particular, I do not accept that the Plaintiff was arrested immediately following police arrival. The content of the interview and in particular, the Plaintiff’s response when ultimately advised of his arrest, seeking the reason and then laughing, is inconsistent with having been arrested at an earlier point.
166. Exhibit A1, Tab 16 at 73.
167. Exhibit A1, Tab 16 at 79.
168. Exhibit A1, Tab 8 at 30.
As to the question of whether the Plaintiff continued to be detained after DS Macnamara asserts the Plaintiff was released, I prefer DS Macnamara’s recollection of these events. His account is not only consistent with the Custody Management Records and his notebook, but also consistent with his actions of removing the Plaintiff to the foyer of the Police Station. I accept that the Plaintiff was cooperative during the conversation, supporting DS Macnamara’s decision not to give him a direction under s 89 of the 2007 Act. [169] Based on the contents of DSC Alexander’s COPS Entry of 14 June 2017 [170] I am satisfied that the Plaintiff was in fact informed of the application for the PVO and indicated a willingness to abide by any order, and on that basis had been released from custody.
169. T 153.15-.40 and T 160.33-.42.
170. Exhibit C.
The Plaintiff gave evidence that he did not recall deleting images from his mobile phone in the foyer. [171] The Plaintiff’s evidence in cross-examination was that he was scared because they showed him in the interview a big fire and they said to him that they were “going to ask you all about this allegation.” He said he knew nothing about a big fire, but “he mentions it in the transcript”. [172]
171. T 116.36-.38.
172. T 117.01-07.
In all, I found the Plaintiff’s account variable and implausible. I give it little if any weight. In particular, I found implausible his account that he wanted DS Macnamara to help him to leave the police station unharmed. There is no evidence that he going to come to harm when he was in a location which he observed had cameras.
The earlier suggestion in cross-examination that he was scared of DSC Alexander is difficult to accept when all the questioning in the recorded interview was by DS Macnamara and the Plaintiff described police as “good people.” When pressed in cross-examination, the Plaintiff could not identify any threat by DSC Alexander. In his interview, he conceded that DS Macnamara had not threatened him. The Plaintiff’s attempt to explain his reference in the interview to police being “good people” to his fear of being hit or charged for anything is implausible and cannot be accepted.
I accept DS Macnamara’s evidence that as he was leaving the police station that night, he observed the Plaintiff as being cheerful and happy and deleting things from his phone. [173] I do not accept the Plaintiff’s evidence that DSC Alexander came down at one point to tell him he was not to move or otherwise he would be charged with a serious offence. DSC Alexander was preparing Exhibit C with a view to apply for an urgent PVO, indicating in that application there was insufficient evidence to proceed with charging the Plaintiff. The suggestion that he would nevertheless threaten the Plaintiff with charging him with an unspecified “serious offence” if he left is inherently implausible. DSC Alexander was not called. Although the assertion was not directly challenged the Plaintiffs’ credit is such that I can afford it little, if any, weight. [174]
173. T 154.01-.08.
174. See Nu v NSW Secretary of Family and Community Services [2017] NSWCA 221 at [57]-[61](Beazley P, with McColl JA and Schmidt J agreeing).

Beyond that the Plaintiff had been informed both through being advised of his Part 9 rights and in the interview that he could only be detained for 6 hours to conduct investigations.
In the circumstances, for reasons earlier given, I am not satisfied that there was a detention of the Plaintiff after he had been released from custody and was asked to sit in the foyer. I am satisfied that he remained voluntarily and I do not accept his evidence that he was threatened of being charged with a serious offence by DSC Alexander. Whilst the Plaintiff was advised that if he declined to stay he could be directed to do so this does not equate with a threat of force, as referred to in State of New South Wales v Le [175] but rather was the use of lawful power.
175. [2017] NSWCA 290 at [3], [6], [7].
The Plaintiff’s claim for a period from 1.52pm on 14 June 2017 to 12.15am on 15 June 2017, being a period of 10 hours and 25 minutes, cannot be accepted. Accepting that the arrest was at around 2.10pm and concluded at 10.09pm, the total period of detention on my findings is one of 7 hours and 59 minutes. In light of my findings as to the lawfulness of the arrest, it is unnecessary to consider exclusions under s 117 of LEPRA.

Section 99(1)(a)

Submissions

The Defendant contended that the imprisonment was lawfully justified as the Plaintiff had been lawfully arrested pursuant to s 99 of LEPRA (as in force at the time of arrest).
It was not in issue that at the time of the arrest, s 99 relevantly provided:-

(1) A police officer may, without a warrant, arrest a person if:
(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:
(i) to stop the person committing or repeating the offence or committing another offence,
…
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested).

…
(3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.
…
(4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.

The Defendant accepted that it bore the burden of proof in proving the arrest was lawful. [176]
176. Defendant’s Written Submissions at [67].
The Defendant contended that the requirements of s 99(1)(a) were satisfied as at the time of the arrest, as following the interview at the Plaintiff’s home, DS Macnamara suspected on reasonable grounds that Jamal had committed the offence of trespass on the property of the Church on 11 June 2017. [177] This offence was in reference to s 4 of the Inclosed Lands Protection Act 1901 (NSW) (the 1901 Act), being entering inclosed lands without a lawful excuse. DS Macnamara in fact stated that he suspected a number of entering enclosed lands offences. [178]
177. Defendant’s Written Submissions at [71].
178. T 134.28-.29.
The Plaintiff claimed that this was insufficient, submitting that the communication was a “bit vague”. [179]
179. T 301.05-.06.
The Defendant next relied on the following evidence as indicating that at the time of the arrest, DS Macnamara suspected on reasonable grounds that the Plaintiff had committed an offence:-

The statements made in the COPS Event Report 989131590 [180] relating to the 11 June 2017 Triple 0 call;
180. Exhibit A1, Tab 8 at 31.

The matters of which Mr Gayed had informed DS Macnamara in their telephone call before DS Macnamara went to meet him at the Church;

The provision of a Banning Notice by Mr Gayed to DS Macnamara, which was observed to be on the Church official letterhead, was addressed to the Plaintiff, was readily produced by Mr Gayed to DS Macnamara and was signed by the “Church committee”;

Mr Gayed provided a statement to DS Macnamara in which he recorded that between 20 November 2016 and before 23 December 2016 when he next saw the Plaintiff, he served the Banning Notice on him on the last bench of the Church; [181]

Mr Gayed had provided DS Macnamara with CCTV images, which he viewed, showing the Plaintiff in the premises of the Church, including on the day the Triple-0 call was made, being 11 June 2017; and

Mr Gayed provided information as to witnessing the Plaintiff the premises of the Church on 11 June 2017 and 12 June 2017. [182]
181. Exhibit A1, Tab 13 at 69, [12].
182. Exhibit A1, Tab 13 at 69, [15]-[16].

The Defendant contended that armed with this information, DS Macnamara suspected on reasonable grounds that the Plaintiff had committed the offence of trespass on the premises of the Church on at least 11 June 2017.
The Plaintiff’s contention was that prior to the arrest, as he saw it, DS Macnamara had available to him the contents of the recorded interview with the Plaintiff on his front door, such that the court would not be satisfied at the time of arrest and it was not subjectively reasonable for DS Macnamara to conclude that the Plaintiff had committed the offence contrary to s 4 of the 1901 Act. It asserted that the Plaintiff had disclosed a lawful excuse, in that it was his church that he attended regularly, he received invitations by way of messages from the church and he had never received the banning notice. Further, it submitted that the Plaintiff’s attendance since the banning notice up until 11 June 2017 had not prompted any action from the Church, whilst the material confirmed that the Plaintiff had entered the Church on numerous occasions since the banning notice. It asserted that DS Macnamara did not seek from the Plaintiff any evidence of the messages from the Church inviting the Plaintiff to attend. In the circumstances, despite indicating that he was investigating, the Plaintiff submitted that he had no regard to the information provided to him by the Plaintiff such that the arrest was unreasonable. [183]

Consideration

183. Plaintiff’s Written Submissions at [52]-[58].

I do not accept that the reason given by DS Macnamara for the arrest was vague, as asserted by the Plaintiff. To the extent this submission was advanced it cannot be accepted as the Plaintiff was informed of the general nature of the offence for which he was being arrested. [184]
184. State of New South Wales v Delly [2007] NSWCA 303 at [10] and [63].
The relevant principles in respect of the application of s 99(1)(a) of the LEPRA were summarised by Macfarlan JA in Lule v State of New South Wales [185] as follows:
185. [2018] NSWCA 125.

62 As pointed out by the High Court in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-1; [1990] HCA 26, statutory provisions permitting the issue of search warrants or, I add, the arrest of individuals, “authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect”. The High Court indicated that in those circumstances strict compliance with the conditions on the exercise of the powers is required.
63 Section 99(1)(a) of LEPRA requires the arresting police officer to have a subjectively held suspicion that the person to be arrested is committing or has committed an offence (George v Rockett at 112)…The section also requires that the suspicion be held “on reasonable grounds”. This involves an objective test; that is, whether a reasonable police officer in the position of the arresting officer would, or perhaps could, have held that suspicion. As stated in George v Rockett at 115, “[t]he facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown”. Their Honours at 115 referred with approval to Kitto J’s statement in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 at 303; [1966] HCA 21 that:
“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a ‘slight opinion, but without sufficient evidence’, as Chamber’s Dictionary expresses it ...”
See also Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441 at [4], [24], [73] and [98]-[100].

64 “Reasonable grounds” must be determined objectively by undertaking “an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue in question” (McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 at [10]- [11]). The existence of reasonable grounds for a belief (and therefore of a suspicion) “depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it” (Hyder v Commonwealth [2012] NSWCA 336; (2012) 217 A Crim R 571 at [15(8)] per McColl JA, referring to O’Hara v Chief Constable of the Royal Ulster Constabulary [1996] UKHL 6; [1997] AC 286 at 298, 310 and 303).
65 The statutory provision in George v Rockett referred to both suspicion and belief. The High Court at 115 described these as different states of mind. The following observation at 117, concerning belief in relation to the identification of an object, is equally applicable to the suspicion to which s 99(1) refers:
“Where the object is identified by description, the broader and less specific the description, the more difficult it is likely to be to satisfy the requirement of reasonable grounds for believing that a thing answering the description will afford evidence of the commission of an offence.”

66 In Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [40], the plurality observed that “what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time”. This observation is also equally applicable to the “reasonable grounds” to which s 99 refers.

Consistent with what was stated by Macfarlan JA in Lule v State of New South Wales (supra) at [63], the facts identified by DS Macnamara satisfy me that he had requisite suspicion on reasonable grounds for the purposes of s 99(1)(a). The Plaintiff appeared to concede that it did not challenge DS Macnamara’s state of satisfaction in cross examination. [186]
186. T 290.01-.30.

Section 99(1)(b)

Submissions

Section 99(1)(b)(i) – to stop the person committing or repeating an offence or committing another offence

The Defendant particularised this aspect of its case, asserting that DS Macnamara was satisfied that the arrest was necessary to stop the Plaintiff committing another offence by reason of the following matters:-

The CCTV images with which Mr Gayed had provided DS Macnamara which showed the Plaintiff on the premises of the Church on numerous occasions; and

Before the arrest (which the Defendant contended occurred during the course of the electronically recorded interview at the plaintiff’s home) the Plaintiff said to DS Macnamara and DSC Alexander that he regularly attended the Church, including on 11 June 2017.

In submissions, however, the Defendant sought to rely upon evidence that DS Macnamara was aware of the banning notice that had been issued on 20 November 2016 and the break and enter and malicious damage offences that the Plaintiff had been bailed in respect of on 20 December 2016, such that the break and enter offences had been committed one month after the banning notice had been issued. It stated that having regard to the CCTV evidence, DS Macnamara saw no other alternative than to arrest the Plaintiff in respect of the offences. [187]
187. Defendant’s Written Submissions at [76] referencing T 138.27-.37.
The Plaintiff stated that DS Macnamara could have issued a Court Attendance Notice to the Plaintiff and advised him not to attend the church until the matter was resolved. It submitted that there was no suggestion of urgency and the Plaintiff was not an immediate threat to the community. He had been attending church regularly for some time prior to the complaint of 11 June 2017 and there had been no explanation preferred for the acquiescence to the Plaintiff’s previous attendance. [188]
188. Plaintiff’s Written Submissions at [65]-[66].
It was submitted that the Plaintiff was co-operative, compliant, answered all questions of him, made admissions against interests and was prepared to attend the police station the next day. The arrest was not proportionate to any risk and there were numerous alternatives to arrest. [189]

Section 99(1)(b)(vii) – to prevent the harassment of, or inference of, any person who may give evidence in relation to the offence

189. Plaintiff’s Written Submissions at [67].

During the course of cross-examination, DS Macnamara conceded that as at 14 June 2017, there was nothing in existence that would cause him to consider concerns such that the Plaintiff had to be arrested and detained due to harassment or interference with any person who may have given evidence in relation to the offence. [190]
190. T 217.32-.37.
This was accepted by the Defendant, who acknowledged that at the time of the arrest, DS Macnamara had not informed the Plaintiff that Mr Gayed had given a statement. [191] Whilst DS Macnamara stated that the arrest was reasonably necessary to prevent the harassment of Mr Gayed, the Defendant accepted that this was the weakest of the three alternatives. [192]

Section 99(1)(b)(viii) – to protect the safety or welfare of any person

191. T 216.39-.41.

192. T 260.31-.35.

The Defendant particularised DS Macnamara’s state of satisfaction as reasonably necessary to protect the safety and welfare of the Church community by reason of the following matters:

Mr Gayed providing a statement to him which stated, “I fear for members of the Church due to the behaviour of Jon Jamal. He was banned from 20/11/16 coming to Church but continues to do so and confronts priests”;

Mr Gayed informing DS Macnamara that federal parliamentarians, together with some Egyptian dignitaries were attending the Church in the forthcoming weekend;

DS Macnamara’s review of the COPS Events and Fact Sheet which reported the Plaintiff’s involvement in, or alleged involvement in incidents involving the Church or persons connected to the Church.

The statement that DS Macnamara had from Mr Gayed was:-

I FEAR FOR MEMBERS OF THE CHURCH DUE TO THE BEHAVIOUR OF JON JAML. HE WAS BANNED FROM 20/11/16 FROM COMING TO CHURCH BUT CONTINUES TO DO SO AND CONFRONTS THE PRIESTS. [193]
193. Exhibit A1, Tab 13 at 65, [17].

Mr Gayed had informed DS Macnamara in his statement that on Sunday, 18 June 2017, the Church was due to have a number of dignitaries from the Federal Parliament to pass the Immigration Minister’s condolences for recent Christian killings in Egypt. [194] DS Macnamara stated that he had regard to this as well the incident involving malicious damage to the vehicle to the victim, who was the son of a Father of the Coptic Orthodox Church, subject of COPS Event 261096595; [195] the incident of 28 August 2016 regarding Mr Malik, subject of the COPs Event 223515897; [196] and the incident on 19 November 2016 involving the damage to the Church’s air conditioning unit, subject of the COPS Event 62658812. [197]
194. Exhibit A1, Tab 13 at 65, [18].
195. Exhibit 2.
196. Exhibit 3.
197. Exhibit 4.
The Plaintiff submitted that apart from relying on earlier submissions there was no evidence that DS Macnamara would be reasonably satisfied that the safety and welfare of the church community needed protection. It was submitted that there was no dispute that the Plaintiff cared for his church and there was not a threat to the parliamentarians visiting the church. It was further submitted that there was nothing to suggest that the events involving the priest’s son some 6 months previously had any relevance to the possible actions of the Plaintiff other than they had an association with the Coptic church. [198]

Consideration

198. Plaintiff’s Written Submissions at [68]-[69].

For reasons that follow in respect of s 99(3) (see [116]-[123]) it is strictly unnecessary to address s 99(1)(b), although in deference to the parties submissions I would seek to do so.
There is no evidence to support engagement with s 99(1)(b)(vii); a matter which was all but conceded by the Defendant. [199]
199. T 260.31-.35.
The particularised facts relevant to ss 99(1)(b)(i) and (viii) do overlap. Some matters need to be noted, however.
Firstly, Mr Gayed’s statement did not establish that the banning notice had in fact been served at a time the Plaintiff was on bail. Mr Gayed’s account was that it was served at some time between 20 November 2016 and 23 December 2016. The offences were said to have occurred on 20 December 2016 and the Plaintiff was charged and subsequently bailed on 9 February 2017. There was no evidence of any bail conditions at that time. Moreover, it was not suggested that since being on bail and being the subject of a PVO (in respect of Mr Zaki) he had violated any conditions.
Secondly, information obtained from Mr Gayed as recorded in the COPs entry indicated that the Plaintiff had attended the Church premises on 11 June 2017, and became argumentative, but when he was told to leave he eventually did. [200] That account however (of being argumentative and told to leave) was not replicated in the statement of Mr Gayed obtained by DS Macnamara. It instead stated that a call was made on 000 because a number of dignitaries from the Federal Parliament were due at church that day. [201]
200. Exhibit A1, Tab 8 at 31.
201. Exhibit A1, Tab 14 at 69, [15]. The 000 call also did not replicate it: see Exhibit A1, Tab 9 at 39.
Thirdly, according to Mr Gayed’s statement the Plaintiff attended the Church on one occasion being in February 2017. After allegedly staring at people he was asked to leave and did so. [202]
202. Exhibit A1, Tab 14 at 69.
Finally, on 12 June 2017 when the Plaintiff is said to have attended the Church premises and spoken to a member of the congregation on Church grounds, no complaint appears to have been made following this attendance.
Standing alone and based on the particularised matters, I am not satisfied that DS Macnamara could have been satisfied that it was reasonably necessary to arrest the Plaintiff to prevent him repeating or committing the same or another offence. Quite apart from the circumstances, his own evidence was that he chose to arrest as the Plaintiff was on bail at the time for offences which he saw as being interrelated to the Church. [203] That does not indicate that he formed the view that that it was necessary to arrest the Plaintiff to stop him from committing or repeating the offence or committing another offence.
203. T 164.01-.07 and T 197.01-.08.
In so far as the reliance on s 99(1)(b)(viii) is concerned, the COPS Events indicates that the incident involving Mr Malik occurred in August 2016. There was no evidence that the Plaintiff was involved in the incident involving damage to the air conditioning. Both these events preceded the Plaintiff being charged in relation to the matters of 20 December 2016.
Mr Gayed did, however, refer in his statement at [13]-[16] to the other events at the Church in which the Plaintiff was involved. [204] It was not suggested that the banning notice was then brought to the Plaintiff’s attention and the statement indicates that when asked to leave church grounds the Plaintiff did so.
204. Exhibit A1, Tab 14 at 69.

DS Macnamara asserted that by arresting and charging he would have been able to recommend appropriate bail conditions. [205]
205. T 216.15-.23.
Pursuant to s 21 of the Bail Act 2013 (NSW) (the 2013 Act), the offence in question was a “fine-only offence” to which there was a right to release, albeit that conditions could be imposed to address identifiable bail concerns. Pursuant to s 20A of the 2013 Act, any conditions had to be appropriate to the bail concern and reasonable and proportionate to the offence. Bail conditions could not be imposed if the matter proceeded through a Court Attendance Notice or lesser process. Whether or not bail conditions were ultimately imposed does not affect whether the arresting officer had the necessary satisfaction at the time of arrest.
At the point of arrest, DS Macnamara conceded that there was no information that the Plaintiff had been physically violent although he had been verbally aggressive. Section 99(1)(b)(viii) invokes considerations beyond the person being arrested.
Subject to the qualifications raised above on the information provided by Mr Gayed, I am prepared to accept that DS Macnamara was satisfied that it was reasonably necessary to arrest the Plaintiff to protect the safety and welfare of the Church congregation.

Section 99(3)

Submissions

The Defendant relied on statements of DS Macnamara stating that he intended to charge the Plaintiff when he arrested him and that he had sufficient evidence to do so. DS Macnamara stated that if the Plaintiff had declined to be interviewed he would have started the charge process. [206]
206. T 147.47-.50 and 214.25-.39.
The Plaintiff stated that the arrest was not for the purposes of charging but investigation as indicated in the recorded interview at the Plaintiff’s home. [207] Attention was drawn to the inadequacy of Mr Gayed’s account as to service of the banning order and the Plaintiff’s account that it had not been served and in the meantime received automated messages inviting his attendance. [208] It was submitted that based on the evidence at the time or arrest, it was not subjectively reasonable for DS Macnamara to form the view that an offence has been committed. [209] Attention was also drawn to the contents of Exhibit C as closing off any ability of the Defendant to contend that there was ever an intention to charge which was reinforced by the contents of Exhibit D. [210]

Consideration

207. T 307.12-.24.

208. T 290.40-.48.

209. T 290.48-.50.

210. T 291.35-292.50.

Accepting that DS Macnamara was satisfied within terms of s 99(1)(a) and (b) he also needed to have decided to arrest the Plaintiff in accordance with s 99(3). [211] At the time of the arrest, DS Macnamara asserted he intended to charge the Plaintiff at all times until the conclusion of the ERISP. I am not satisfied in the circumstances that he proposed to do so.
211. Robinson v State of New South Wales [2019] HCA 46; (2019) 94 ALJR 10 at [109].
The text of the conversation at the Plaintiff’s house indicated quite clearly that he needed to carry out further investigations to “talk further” and “to get your side of the story.” The matters which he was to investigate no doubt arose out of the Plaintiff’s claims that he had not received a banning notice, the fact that he continued to attend the church and that he continued to received automated messages inviting him to do so. This went to the issue of whether DS Macnamara could establish the absence of a lawful excuse based on what he had been told.
The conduct of DS Macnamara both en route in the vehicle where he sought to, in his words, establish a rapport, and at the police station where he asked for production of the phone are events proximate to the arrest consistent with undertaking further investigations. Whilst waiting for an interpreter he made further inquiries of Mr Gayed having asked him to attend the police station.
Moreover, it is not apparent that there was anything additional of substance contained in the ERISP interview which could have led to DS Macnamara to decide not to proceed with charges as compared with the information he had at the time of arrest. Following deciding not to proceed with charging on the evening of 14 June 2017, DS Macnamara initiated yet further inquiries with Mr Gayed. Further, the investigation was not concluded until 20 June 2017.
Whilst DS Macnamara insisted that he had intended to charge the Plaintiff at all points until the ERISP, there is in my view no logical basis for which this can be accepted. Moreover DS Macnamara’s evidence does not accord with the notation made by DSC Alexander in his application for an urgent PVO where he stated an examination of all available material investigating police believe that “they are not yet in possession of sufficient evidence to proceed with criminal charges.” DSC Alexander was not called. Although DS Macnamara stated he had no input into the document and did not accept its accuracy and correctness in all ways, he did not comment on the statement beyond this. In my view, in referring to the requirement for further evidence, the notation is consistent with the position that it was not intended that the Plaintiff be charged at the time of arrest and that the subsequent investigation did not alter the situation.
Referring to s 99 of LEPRA Bell, Gageler, Gordon and Edelman JJ in New South Wales v Robinson (surpa) held at [110]:-

…An arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with the crime is an arrest for an improper purpose and is unlawful…

Their Honours thereafter at [113] stated:

Part 9, specifically ss 114 and 115, provided at the relevant time for a police officer to detain a person who was under arrest for an investigation period of up to four hours (or such longer period as the maximum period may have been extended to by a detention warrant). However, the Second Reading Speech for the Crimes Amendment (Detention after Arrest) Bill 1997 (NSW) indicates that the original introduction of the investigation period (as Pt 10A of the Crimes Act 1900 (NSW)) was not intended to alter the conditions of arrest – indeed, it was said that “[p]olice will not be able to arrest a person in any circumstance where the law does not otherwise already allow them to do so”. That investigation period is therefore not to be taken into account by a police officer at the time of the arrest. Taking it into account at the time of arrest may lead to consideration, subconsciously or consciously, of the possibility of questioning as a reason for the arrest, which is impermissible. Moreover, it may lead to an arrest being made in the knowledge that the relevant level of persuasion of guilt required for charging might be formed as a result of the investigation period. It may therefore in substance lower the threshold for arrest and dilute the required purpose of arrest, which is to take a person before an authorised officer to be dealt with in accordance with law to answer a charge for the offence. (emphasis added)

In all of the circumstances I am not satisfied that at the time of arrest DS Macnamara intended to act in accordance s 99(3) of LEPRA. It follows, in my view, that the arrest and subsequent detention of the Plaintiff was unlawful.

Damages

Compensatory Damages

Submissions

The Plaintiff stated that during the period he was in custody, he wasn’t able to help himself, he wasn’t able to contact anyone and his life was in police hands. He stated that he did not have any power and felt homeless and humiliated as he was asked a lot of questions and his mobile was taken. He felt not safe and frustrated that police kept going to break him down. In particular, he stated he was asked irrelevant questions. [212]
212. T 39.08-.18.
As a consequence, he stated that he thinks about what happened to him everyday and described the arrest as “false and vexatious allegations”. He described the arrest as acting on the actions of one person in the Church community, whereas the Church had over a 100 families or 1500 persons in the community. [213] He stated that he changed his home, his car and his name. He doesn’t like police knowing anything about him and he does not sleep as he is scared. He stated he has started to think of the police in Australia as no different to the police in Egypt who do the wrong thing and abuse their powers. He stated that he sometimes dreams of being in gaol. [214] He stated that after the pandemic, he doesn’t like Australia anymore. He stated that every time he thinks about his arrest he gets angry and loses his concentration. [215]
213. T 38.36-.45.
214. T 39.20-.23.
215. T 39.33-.36.
In cross-examination, it was put to the Plaintiff that the cause of him being upset was that someone in the Church community, namely Mr Gayed, had tried to have him banned. He responded that that was not the case because police accepted the false allegation. [216] Subsequently, it was put to him that he was upset that the Church committee would try and ban him from the Church, and he stated that they were his friends. [217] In further cross-examination, he admitted he was upset for what was contained in the notice, which he stated was not true. [218] However, he reiterated that he was upset that the police accepted the document and acted on it. [219]
216. T 108.11-.15.
217. T 109.29-.31.
218. T 109.46-110.04.
219. T 110.29-.38.
The Plaintiff argued that the basis of his claim lies in the anguish, distress, anxiety and humiliation experienced as a result of being subject to an unlawful arrest at the hands of arresting officers in circumstances where:-

The Plaintiff was not charged with any offence but was detained for the purpose of being present when the arresting officers sought to vary an existing AVO against him and only upon that application being unsuccessful was the Plaintiff allowed to leave the police station;

The Plaintiff was arrested without lawful justification or authority, as he was arrested for the sole purpose of continued investigation over an alleged trespass;

The arresting officers did not have reasonable grounds to believe that the arrest of the Plaintiff was reasonably necessary for any one or more of the reasons listed in LEPRA s 99(1)(b)(i)-(ix);

The Plaintiff experienced great distress, upset and humiliation, and as sense of humiliation, as a result of the unlawful arrest and consequential wrong detention;

The incident has fostered a deep distrust of police officers in the Plaintiff, and the Plaintiff now experiences fear and distress when he sees a police officer; and

For a lengthy period, subsequent to the incident, the Plaintiff was unable to sleep due to recurring nightmares brought about by the anxiety and humiliation he carried from the incident. [220]
220. Plaintiff’s Written Submissions at [83].

The Plaintiff submitted that the case fell at the serious end and an award of $100,000 was sought by the Plaintiff based on instructions. [221]
221. T 310.29-.34.
The Defendant submitted that there was no objective evidence that the Plaintiff experienced the emotions claimed as a result of the arrest. Furthermore, it was likely the Plaintiff was experiencing any emotions he claimed to a not insubstantial degree prior to his arrest; having regard to his criminal past, including the recent charge of break and enter, and him being upset with the “vexatious allegation” to the Church. Attention was drawn to him being content and cooperative with the custody management records revealing “nil issues”. It drew attention that there was no evidence of psychological injury. Nevertheless, it was conceded that if the Court found the arrest unlawful then a small award of damages would be appropriate.
The Defendant submitted that general compensatory damages would be in the range of $2,000 to $5,000.

Consideration

I accept that the evidence establishes that he was deprived of his liberty for the period of 7 hours and 59 minutes such that it would justify an award. To the extent that the Plaintiff complains that he felt violated, anxious and distressed by what occurred that is not supported by the documentary evidence. The record of interview indicated that he was cooperative at all times and volunteered to sit in the foyer when asked to do so consenting to the proposed PVO application. The Custody Management Records confirm throughout the period of detention that he appeared well, and there were “nil issues.” There was no medical evidence to demonstrate any ongoing evidence for the distress associated with the arrest and to an extent, any distress he suffered appears to have been directed to the allegations made by Mr Gayed and the Church community against him. Whilst the Plaintiff claims that the incident has fostered a distrust of police officers, there is no other evidence apart from him saying that it did. Whilst he may have been delayed in being able to take his medication, I am satisfied that at the time of the arrest he was comfortable. At all times he appears to have been treated with courtesy and his needs otherwise met.
In light of my findings, I accept that the Plaintiff has felt some emotions but in my view they have been exaggerated. Nevertheless I have borne in mind the time involved, the fact that he was taken away from his home after being searched and his property taken from him and his phone examined. There is no evidence that he was taken away from his home at a time of particular inconvenience, although the detention did extend into the night.
In the circumstances, I am satisfied that an appropriate award of damages for false imprisonment would be in an amount of $7000.

Aggravated Damages

The Plaintiff makes a claim for aggravated damages, which were particularised as follows:-[222]
222. Statement of Claim at [30].

The Plaintiff was not charged with any offence but was detained for the purpose of being present when the arresting officers sought a Provisional AVO against him and only upon refusal of said AVO, he was allowed to leave Burwood Police Station;

The Plaintiff was arrested without lawful authority as he was arrested for the sole purpose of continued investigation over an alleged trespass;

The arresting officers did not believe that the arrest of the Plaintiff was reasonably necessary for the purposes specified under s 99 of LEPRA;

The arresting officers breached the Plaintiff’s privacy by requesting that the Plaintiff provide them with the password to his mobile phone and subsequently accessed private information stored on the Plaintiff’s phone; and

The Plaintiff informed the arresting officers that he needed to take arthritis medication and the medication was at his home. The arresting officers did not release the Plaintiff as to allow him to take his medication.

State of New South Wales v Riley [223] summarised the position in relation to aggravated damages as follows at [130]-[133]:-
223. [2003] NSWCA 208; 57 NSWLR 496.

130 If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages?
131 In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.
132 That approach is consistent with what Lord Reid said in Cassell & Co. Ltd. v. Broome [1972] AC 1027 at 1085:
Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not so where he has been caused mental distress or when his reputation has been attacked - where, to use the traditional phrase, he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain how far other people's minds have been affected, it is almost impossible to equate the damage to a sum of money. Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions. So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled as compensation.
It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.

133 This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means, I think, that aggravated damages can be a matter of degree: the worse the defendant’s conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going.

In this instance, I am not satisfied that aggravated damages are to be awarded by reason of the fact that the Plaintiff was asked to wait in the foyer pending the application for the PVO and where the police had the power under s 89A of the 2007 Act to direct him to remain at a place whilst that application for the order was made but chose not to invoke it. I accept that on the evidence the Plaintiff appeared to be perfectly cheerful and happily remained in the foyer awaiting the outcome. So far as his breach of privacy is concerned, whilst the Plaintiff was reluctant to provide DS Macnamara with the password for his mobile he was willing to provide a finger print touch and exhibited no hurt feelings associated with the request that he should do so although there was some evidence of privacy concerns. [224] The Plaintiff did not give evidence of any distress or indignity that he suffered in so doing.
224. DS Macnamara did record that the Plaintiff did not wish to give the passcode due to some “naked images” on it. See Exhibit A1 Tab 13 at 66.
I am not satisfied that he should be awarded aggravated damages on the basis that he was prevented from returning home to access his medication. As earlier described, an offer was made to make arrangements to retrieve that medication; however, he stated that it was unnecessary. He indicated that he felt comfortable during the interview and there was nothing to suggest that there was a further request made for medication.

Whilst I have not accepted DS Macnamara’s evidence that he intended to charge the Plaintiff at the point of arrest, I am not satisfied that his wrong-doing goes beyond that of ordinary human fallibility and in particular, I am not satisfied that he behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort. No suggestion to this effect was advanced by the Plaintiff.
In all of the circumstances I decline to make an award of aggravated damages.

Exemplary damages

The relevant principles governing the award of exemplary damages were conveniently summarised in the State of New South Wales v Zreika [225] by Sackville AJA, where his Honour stated at [60]-[64]:-
225. [2012] NSWCA 37.

…Aggravated damages are given by way of compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant's wrongdoing, while exemplary damages are awarded to punish and deter the wrongdoer: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118, at 129-130, per Taylor J, cited with approval in New South Wales v Ibbett [2006] HCA 57; 229 CLR 638, at 646-647 [31],[33]. Aggravated damages are assessed from the point of view of the plaintiff, but an award of exemplary damages is based on the conduct of the defendant: NSW v Ibbett , at [34]; Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1, at 7 [15], per Gleeson CJ, McHugh, Gummow and Hayne JJ. However, the same set of circumstances may justify an award of either aggravated or exemplary damages, or both: NSW v Ibbett , at 647 [33]. [34].
61 Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect " detestation " for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno , at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is " conscious wrongdoing in contumelious disregard of another's rights ": Gray v MAC , at 7 [14].
62 Exemplary damages may be awarded against the State in respect of the conduct of police officers for whose torts the State is responsible: NSW v Ibbett ; NSW v Landini , at [114]. The assessment of exemplary damages in a case of conscious and contumelious disregard of the plaintiff's rights by the police:
"should indicate ... that the conduct of the [police] was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses ... do not happen."
Ibbett , at 653 [51], citing Adams v Kennedy (2000) 49 NSWLR 78, at 87, per Priestley JA.

63 In a frequently cited passage, Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448, at 471, observed that the considerations that enter into the assessment of compensatory damages are quite different from those that govern the assessment of exemplary damages and that there is no necessary proportionality between the assessment of the two categories. Nonetheless, in NSW v Ibbett , at 647 [34], the plurality endorsed the proposition that it is necessary to determine both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation. Their Honours also said (at [35]) that where the same circumstances increase the hurt to the plaintiff and also make it desirable for the Court to mark its disapprobation of the conduct, a single sum may be awarded. Such an award would represent both heads of damage and ensure that no element is compensated more than once.
64 I endeavoured to summarise the effect of the authorities in New South Wales v Radford [2010] NSWCA 276, at [97], as follows (Beazley and Macfarlan JJA agreeing):
"These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages for injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award."

The particulars in this regard relied on by the Plaintiff contained in the Statement of Claim[226] are as follows:-
226. Statement of Claim at [31].

The arresting officers arrested and detained the Plaintiff despite being fully aware that they were doing so without lawful authority;

The Plaintiff:

Was not charged with any offence but was detained for the purpose being present when the arresting officers sought a Provisional AVO against him and only upon refusal of said AVO, he was allowed to leave Burwood Police Station;

He was arrested without lawful authority as he was arrested for the sole purpose of continued investigation over an alleged trespass; and

Informed the arresting officers that he needed to take arthritis medication and the medication was at his home. The arresting officers did not release the Plaintiff as to allow him to take his medication.

The arresting officers:

Did not believe that the arrest of the Plaintiff was reasonably necessary for the purposes specified under s 99 of LEPRA;

Requested that the Plaintiff provide them with the password to his mobile phone and subsequently accessed private information stored on the Plaintiff’s phone; and

Did not release the Plaintiff as to allow him to take his arthritis medication.

At no point was it suggested to DS Macnamara that he knew that he did not have lawful authority to arrest the Plaintiff through the course of his evidence.
To the extent that the Plaintiff was detained in order to apply for a PVO after the ERISP, it has not been established that DS Macnamara’s intention at the time of the arrest was to obtain a PVO. Nor was it put to him that the purpose of the arrest was to obtain a PVO. The fact that the Plaintiff was arrested without lawful authority for the purpose of continued investigation amounts to an unlawful arrest, however it is not apparent how this would justify a claim for exemplary damages.
Nor do I accept for the reasons earlier articulated that there was any interference with the Plaintiff’s rights in failing to provide his medication in circumstances where it was indicated to him that arrangements could be made to obtain them. Similarly in relation to the provision of the password, the evidence was that the Plaintiff agreed to provide his finger print and he did so in circumstances voluntarily. In all the circumstances, including that there was no substantial damage or injury to the Plaintiff as a result of his arrest and custody, and the conduct of the police did not involve conscious wrongdoing, high-handed, outrageous or contemptuous conduct, the circumstances of the imprisonment are such that there is no need for the Court’s disapproval by an award of exemplary damages. In my view, there was no evidence of bad faith or malice on the part of the officers and at all times he was treated respectfully and courteously during his detention. The evidence indicates that the Plaintiff was anxious to give his side of his story.
For these reasons I am not satisfied that the case for exemplary damages has been made out.
In all, the Plaintiff is entitled to compensatory damages of $7000 plus interest at 4% from 15 June 2017 which I would calculate in the amount of $863 making a total of $7863.00.

ORDERS

For the reasons, I order:-

Judgment for the Plaintiff in the sum of $7863.00

I will hear from the parties as to costs.

**********

Endnotes

Amendments

10 September 2020 - Typographical errors amended

Decision last updated: 10 September 2020

Medium Neutral Citation:	Jamal v State of New South Wales [2020] NSWDC 377
Hearing dates:	6, 7, 8 and 9 July 2020
Date of orders:	17 July 2020
Decision date:	17 July 2020
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	(1) Judgment for the Plaintiff in the sum of $7863.00 (2) I will hear from the parties as to costs.
Catchwords:	TORTS – False Imprisonment – Plaintiff arrested by police for inclosed lands offence – In custody for longer than 6 hours – Whether arresting officer suspected on reasonable grounds under s 99(1)(a) – Whether arresting officer believed arrest reasonably necessary under s 99(1)(b) – Whether the arrest complied with s 99(3) DAMAGES – Compensatory Damages – Aggravated Damages – Exemplary Damages
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 89 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 117
Cases Cited:	Lule v State of New South Wales [2018] NSWCA 125 Nu v NSW Secretary of Family and Community Services [2017] NSWCA 221 Robinson v State of New South Wales [2019] HCA 46; (2019) 94 ALJR 10 State of New South Wales v Delly [2007] NSWCA 303 State of New South Wales v Le [2017] NSWCA 290 State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 State of New South Wales v Zreika [2012] NSWCA 37
Category:	Principal judgment
Parties:	Jon Jamal (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Ms L. Goodchild (Plaintiff) Ms E. Bathurst (Defendant) Solicitors: Eddy Neumann Lawyers (Plaintiff) Norton Rose Fullbright (Defendant)
File Number(s):	2019/395465
Publication restriction:	N/A