Johnson v Northern Territory of Australia

[2016] NTSC 49

Johnson v Northern Territory of Australia [2016] NTSC 49

PARTIES:JOHNSON, Stuart Douglas

v

NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING ORIGINAL JURISDICTION

FILE NO:22 of 2013 (21310090)

DELIVERED:  30 September 2016

HEARING DATES:  26 October – 6 November 2015

JUDGMENT OF:  BLOKLAND J

CATCHWORDS:

LIMITATION OF ACTION – Extension of time – Statutory cause of action –No clear legislative intent to exclude Limitation Act 1981 (NT) s 44 –Police Administration Act1978 (NT) s 162 – Grossly out of time but substantial records available - No prejudice to the defendant - Extension of time granted

POLICE – Tort claim –Lawful arrest - Alleged excessive force – On balance of probabilities the force was reasonably necessary to apprehend - Not excessive–Force did not materially contribute to the injuries claimed - Claim dismissed

POLICE – Tort claim – Alleged assault and battery - Assault and battery not established on balance of probabilities – Claim dismissed

TORT - Causation - A defendant’s wrongful act must have caused or contributed to the harm for which the plaintiff seeks damages – Arrest did not cause injury – Arrest did not exacerbate previous injuries - Causation not established

TORT – Damages - Loss of earning capacity and quantum claimed by the plaintiff excessive – Claim dismissed

TORT - Vicarious liability - Crown vicariously liable for acts of excessive force, assault and battery by members of Police Force - Force used was reasonably necessary in all of the circumstances – Claim dismissed

Limitation Act (NT), s 44, s 44 (1), s 44 (3)(b)

Personal Injuries (Liabilities and Damages) Act (NT), s 20, s 21, s 25, s 26, s 27,

Police Administration Act (NT), s 123, s128, s 162 91)

Johnson v Northern Territory of Australia [2014] NTSC 18; Majindi v Northern Territory of Australia (2012) 31 NTLR 150, applied.

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; Amaca v Ellis (2010) 240 CLR 11; Cotchilli [2007] NTSC 52; Grimley (1994) 121 FLR 236; Jones v Dunkel (1959) 101 CLR 298; Kumar v Minister for Immigration, Local Government and Ethnic Affairs (1991) 28 FCR 128; Leigh v Cole (1853) 6 Cox CC 329; March v E & MH Stramore Pty Ltd (1991) 171 CLR 506; Perkins v County Court of Victoria (2000) 2 VR 246; Queen Elizabeth Hospital v Curtis (2008) 102 SASR 534; R v Turner [1962] VR 30; Slaveski v Victoria [2010] VSC 441; St George Club Ltd v Hines (1961) 35 ALJR 106; Watts v Rake (1960) 108 CLR 158; Wilson (unreported, Kearney J, 20 November 1998); Zaravinos v New South Wales (2004) 62 NSWLR 58, referred to.

REPRESENTATION:

Counsel:

Plaintiff:Self-represented

Defendant:S Brownhill SC; J Ingrames

Solicitors:

Plaintiff:Self-represented

Defendant:Solicitor for the Northern Territory

Judgment category classification:    B

Judgment ID Number:  BLO 1612

Number of pages:  168

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Johnson v Northern Territory of Australia [2016] NTSC 49

No. 22 of 2013 (21310090)

BETWEEN:

STUART JOHNSON

Plaintiff

AND:

NORTHERN TERRITORY OF AUSTRALIA

Defendant

CORAM:    BLOKLAND J

REASONS FOR JUDGMENT

(Delivered 30 September 2016)

Introduction:

1. Stuart Johnson (‘the plaintiff’) brings an action against the Northern Territory (‘the defendant’).  The claim alleges assault and battery and the use of excessive force by members of the Northern Territory Police Force.[1]  The claim arises from the alleged manner of the plaintiff’s arrest conducted by Officers Martin Dole and Peter Winton on 14 July 2005.  The arrest was executed outside of the plaintiff’s residence at 2 Hong Street, Alice Springs. 

2. There is no allegation of false imprisonment. It is not suggested the arrest was unlawful in the sense that it was not undertaken pursuant to s 123 of the Police Administration Act.  The claim alleges excessive force was used in the process of the arrest, causing injuries to the plaintiff, both physical and psychiatric and/or psychological.  The injuries claimed included alleged exacerbation of previous injuries.  The plaintiff seeks damages for the injuries alleged including for pain and suffering, humiliation and hurt, loss of earnings and earning capacity, and medical and other expenses.

3. The defendant accepts the action is a “police tort claim” within the meaning of s 148 F (1) of the Police Administration Act, and as a result is vicariously liable for any tort committed by police officers during the arrest.[2]  The defendant’s case is that the arrest was executed lawfully, using only force as was reasonably necessary to apprehend and take the plaintiff into custody.[3]  The defendant denies the allegations of assault and battery.  A significant component of the defendant’s case is that Officer Dole, the principal arresting officer, reasonably believed the force used in the arrest was necessary for the purposes of apprehending the plaintiff and taking him into custody.[4]  The defendant denied the arrest caused or materially contributed to the injuries, or alternatively, that any injuries suffered were at the level of severity claimed by the plaintiff.  In turn, it is argued the quantum of any damages the plaintiff may be entitled to in the event of establishing the claim should be significantly reduced. 

4. The plaintiff also seeks an extension of time to commence the proceedings, pursuant to s 44 of the Limitation Act. On 23 May 2014, the Full Court held that the two month limitation specified in s 162(1) of the Police Administration Act is capable of being extended by a court pursuant to s 44(1) of the Limitation Act.[5] 

5. The statement of claim sets out a series of delays and potential oversights by previous legal practitioners who have acted for the plaintiff.[6]  The claim asserts that a psychiatric report received by the plaintiff in March 2012, advancing an opinion about the exacerbation of a previously diagnosed condition, is a fact material upon which he can apply to extend time to institute the cause of action.[7] As the writ was filed on 8 March 2013, the defendant points out the proceedings were commenced more than seven years out of time. The limitation period of two months prescribed by s 162 of the Police Administration Act expired on 14 September 2005.  The defendant submits the application to extend time should be refused. 

6. In all of the circumstances, including the length of time that has elapsed since the incident leading to the claim, it was appropriate to hear the substantive claim and the application to extend time together.  As might be expected, there are a number of points of commonality in the evidence or findings relevant to both the substantive claim and the application to extend time.  

7. In many respects this is a sad case.  The plaintiff holds a belief that his current medical and psychiatric conditions were caused, or pre-existing injuries were exacerbated, by the actions of police officers on 14 July 2005.  Although the Court file and supporting material relevant to the application to extend time reveals that a series of legal practitioners have represented him in the past, Mr Johnson was not represented throughout this hearing.  He had the assistance of a McKenzie friend (Mr Eaton) however that assistance is not in any way equivalent to legal representation.  Apparently this lack of representation could not be avoided.  As would be expected, Mr Johnson appeared to experience some of the difficulties any person conducting their own case would.  At times he was unwell.  On occasions this necessitated adjournments during the course of the hearing.  Due to lack of funds he was unable to arrange the attendance of one or more expert witnesses.  This is not to suggest fault on behalf of the plaintiff, however it underlines the difficulties any litigant faces by any measure when conducting their own case.  Despite the difficulties associated with being unrepresented, the plaintiff conducted energetic cross examination of a number of the defence witnesses, who were police officers.

8. It is unsurprising that one difficulty with respect to assessing the evidence was the sheer length of time between the critical events, and the hearing.  This was somewhat mitigated for some witnesses who had access to contemporaneous records, however placed a number of witnesses in some difficulty in terms of accurate recall and raised questions about the reliability of their recollections.  The effluxion of time is a significant overall consideration in terms of assessing the evidence and considering whether this is an appropriate or just case to permit an extension of time.  This is not the type of case where evidence of the critical events is preserved in documents or physical exhibits.  As will be seen in these reasons, there are various associated helpful notes and records relevant to aspects of the claim after the arrest, as well as detailed custody and medical records,  however much of the direct evidence about the arrest giving rise to the claim relies on the memory of witnesses.

9. By way of background, after the plaintiff’s arrest and the conclusion of the investigation, the plaintiff was charged with eight offences including possession of a commercial quantity of cannabis, supply of cannabis and stealing.  The plaintiff agreed that various records representing the resolution of his criminal matters were correct.  The plaintiff was remanded in custody after his arrest on 14 July 2005 and granted bail on 30 August 2005.  A significant amount of the plaintiff’s property was restrained.  As a result of being charged with assault and intimidate a witness, bail was subsequently withdrawn, and the plaintiff was remanded in custody again on 18 November 2005.  He was bailed again on 9 December 2005.  After a number of delays related to legal representation, he obtained a grant of legal aid and his trial commenced in June 2006.  He was found guilty on 30 June 2006 and sentenced to six years imprisonment with a three year non-parole period.  He successfully appealed the convictions in August 2007 and all convictions were quashed.  He was remanded for the purpose of a re-trial, however pleaded guilty to a single charge of supply a commercial quantity of cannabis.  He was sentenced on 27 November 2008, having spent one year and three months in prison.  A sentence of three years and three months was suspended on 27 November 2008.  In these proceedings the plaintiff maintained he had nothing to do with drugs and his plea of guilty to the charge was to finalise a lengthy and difficult process that had impacted on his family and marriage. 

1.0Evidence of the Facts and Circumstances Relevant to the Arrest

1.1Stuart Johnson – General Summary of the Plaintiff’s Evidence about the Events Immediately before the Arrest and the Arrest

1. The plaintiff states on 14 July 2005, he and Michael Naudin, an electrician engaged as a caretaker at the plaintiff’s workshop, left those premises just before 8:00 pm.[8]  Mr Naudin drove the plaintiff’s Toyota Land Cruiser to meet up at the home of some friends at Ellery Drive, Alice Springs.  The plaintiff drove Mr Naudin’s Commodore Station Wagon.  The plaintiff’s plan was to get his Land Cruiser from the Ellery Drive premises.  He made a detour to the Diarama Village, intending to purchase some items from BJ’s Convenience Store, take the items home, and then go to Ellery Drive.  When he pulled up outside BJ’s Convenience Store, he was being observed by the driver of a car, a Holden Vectra, positioned two spaces to his right, which had pulled in after him.  A blond haired male in the car was staring at him.  The plaintiff states he became unsettled and pulled out to move his car into another space.  The other driver, as the evidence subsequently discloses, was Officer Peter Winton.  Officer Winton also pulled out and was parallel to the plaintiff’s vehicle.  The plaintiff states he decided not to stop but to head towards the Mobil Larapinta Service Station.  Officer Winton followed him and stopped when the plaintiff stopped.  The plaintiff says he was concerned for his safety. 

2. The plaintiff then decided to get out of his car and confront the driver who had fixed his eyes on him.  The driver of the other car then stepped out holding an object in his left hand.  The plaintiff yelled “what’s your caper?”  The driver, Officer Winton, advanced towards him still holding an object in his left hand.  The plaintiff said he got back into his car quickly to avoid physical confrontation.  The other driver moved to open the driver’s side window of the plaintiff’s car, reached through to grab the plaintiff’s jacket on his shoulder and his wrist and said “don’t go anywhere.  I’ve got back up coming”.  The plaintiff says he was confused and fearful about what he considered to be an attempted assault on him, engaged the gears and drove off as the other driver said “I know where you live.  There’s people at your house”.  Throughout this incident the plaintiff claimed he did not know the other driver was a police officer.

3. He then went home, stopping only to let Mr Naudin know that he would not be joining him at the Ellery Drive premises.  He said he quickly told Mr Naudin what had happened and contrary to his initial plan, drove off without swapping vehicles.  The plaintiff said he feared the worst and decided to enlist help from a friend, Mr Hatchard, who was well known as a boxer.  This was to assist him if needed at his home.  Before reaching Mr Hatchard’s residence he noticed an oncoming four wheel drive with its lights turned on to high beam.  The evidence subsequently shows that the driver of that car was Detective Senior Constable Dole.  Officer Dole’s vehicle slowed abruptly and made a U-turn, ending up behind the plaintiff’s car.  The lights of his vehicle were on high beam and he accelerated until, on the plaintiff’s version, it was tailgating his car.  There was no police light, the vehicle was unmarked and no siren was used.  The plaintiff said the tailgating and the use of high beam caused him to accelerate to avoid collision and he decided to bypass Mr Hatchard’s home and head to his own residence.  Given the perceived urgency as a result of these circumstances, the plaintiff cut through a break to the median strip and travelled diagonally along Larapinta Drive for 30 metres to gain access to his home in Hong Street, on his immediate right.  He became increasingly desperate to ensure his family’s safety. 

4. The plaintiff drove his car onto the foot path between the front fence and the street outside of his residence at 2 Hong Street.  The other car pulled up behind at an angle.  Both the plaintiff and the other driver got out of their cars.  The other driver approached him quickly shouting “you’re under arrest, I’m a police officer”.  The plaintiff immediately paused, not knowing who the driver was, however did not resist.  He said the police officer, later identified as Detective Senior Constable Dole, shouted at him “put your hands behind your back” and at the same time was spinning the plaintiff around to face the open driver’s side doorway of the plaintiff’s car.  Officer Dole then forcibly held his arms behind his back and pushed him hard against the car.  The driver of the Holden Vectra, Detective Winton, “was now out of his sedan and approaching the scene of the arrest”.  Officer Dole called out to Officer Winton “have you got any cuffs?”  Officer Winton placed some flexi cuffs in Officer Dole’s extended left hand and stepped back.  As Officer Dole applied the cuffs he raised his right knee and forced it into the plaintiff’s back, freeing his hands to create the necessary leverage to tighten the flexi cuffs.  This caused the plaintiff extreme pain to his wrists and lower forearms as the cuffs were reefed upwards.  He said the force of Officer Dole’s knee in his back caused his spine to hyperextend into the open driver’s side doorway, simultaneously pinning his chin to the roofline and his shins to the seal panel at the bottom of the station wagon.  He did not resist arrest and said that no force was required to arrest him. 

5. The plaintiff states Officer Dole withdrew his knee and at that time put his left hand on his left shoulder and with his right hand took a firm grip of his hair at the back of his head.  He said Officer Dole pulled his head back to an upright position and told the plaintiff “You’re so fucked Stewy” before “Smashing the left side of my face into the roof of the station wagon.”  Officer Dole then took him by both shoulders and using his full weight, reefed him back once again, then pulled him backwards and pushed him down with considerable force into the ground.  As he had been cuffed with his arms behind his back, the plaintiff had no way of breaking his fall.  He hit compacted, ungrassed ground taking most of the impact on his backside (coccyx), predominantly to his left side with his left leg twisted underneath him.  He said he was winded and his lower back made a sharp cracking/popping sound and “felt like it had been broken”.  As he was laying on the ground the plaintiff said he was fighting for air and was on the brink of passing out due to the pain.  He said he believed his back was freshly damaged and was later told this had exacerbated damage from a previous injury. 

6. The plaintiff states when Officer Dole was standing behind him, he put his left foot on the right side of his neck, just under and to the back of his right ear and twisted his shoe from side to side as if stubbing out a cigarette butt.  Officer Dole then rolled his full body weight onto his unsupported neck as he walked over him towards Officer Winton, who had been watching the assault a couple of metres away.  He said Officer Dole had effectively used his neck as a step, making a crunching noise as he did. 

7. The plaintiff said the police officers exchanged words with each other, took hold of him, dragged him along the ground and propped him up against the front fence of 2 Hong Street.  Shortly afterwards, three uniformed officers arrived in two police paddy wagons.  Two police officers assisted him to his feet and to the police paddy wagon.  At that time he was experiencing intense pain in his lower back. 

8. I will describe the injuries alleged to have been caused during the arrest in due course, however at the outset it is necessary to consider the evidence that bears on the question of whether the plaintiff has proven the primary facts on the balance of probabilities in terms of whether he was assaulted and the manner of arrest that allegedly caused him injury.  That assessment is to be made taking into account all of the evidence including any injuries that may be consistent with the plaintiff’s account of the arrest.  Evidence of injury has some capacity to support or confirm the plaintiff’s claim and will be summarised and considered later in these reasons.   

   1.2Stuart Johnson – Summary of Evidence Given in Cross Examination about the Events Immediately Before the Arrest and the Arrest

9. In cross examination the plaintiff was adamant that he recalled the incident vividly, and “as close to” exactly the same as it was back in 2005.  Asked if he had a very clear picture in his mind about what happened, the plaintiff said he had recurring nightmares.  He said the events had passed through his mind many times, although he had not willingly gone over those events.  He disagreed with the suggestion he had been able to build up a picture of what had happened.  Asked about whether he had figured out the detail of which hand or foot, left or right was involved at various stages, he answered he was there and “saw it”.  Asked if over the course of some 16 seconds he was able to see whose hand and which hand went to which side of the body, he said “there was one foot and one hand.  That’s all”.  He agreed during the arrest he was facing the vehicle with Officers Dole and Winton behind him.  It was suggested to him that he would not have been able to see what they were doing behind him and he said no, but that he had heard them.  It was put to him that he was figuring out what happened, based not on what he could see, but because of what he could hear and he said “part of my senses, yes”. 

1. The plaintiff agreed his version of events about the lead up to the arrest and what occurred at Diarama Village differs from the agreed facts of his guilty plea entered on 27 November 2008.  Contrary to Officer Winton’s evidence, the plaintiff said he was not told Officer Winton was a police officer or had shown him his badge, although he acknowledged he did hear him say he had “back up” coming and agreed it was “possibly” a phrase commonly used by police, but not used on him before.[9]

2. The plaintiff repeated that Officer Winton got out of the car with “an object in his hand”, and that he had formed the view people were at his house intent on harming his family.  This was the reason he needed to get home quickly, however he acknowledged he stopped on the way to tell Mr Naudin he was not coming for drinks, adding he asked Mr Naudin to come with him.  The plaintiff acknowledged he had not included that point in his affidavit as he has “done a lot of paper work”.  To the suggestion he did not drive to the police station he said “I was heading in the general direction of the police station” and “because I had a car right behind me, no.”  He agreed he did not phone police.  He agreed he was driving very fast.  He disagreed he took a straight line through a roundabout causing his tyres to clip the curb of the roundabout.  He said “the car behind me did though”.  Asked if he took a short cut through the median strip and drove the wrong way down Larapinta Drive to get to Hong Street, he agreed but said he did not “jump” the median strip.  He agreed he drove the wrong way down Larapinta Drive to get to Hong Street for approximately 20 metres.[10]

3. In terms of the time the arrest took, the plaintiff said from the time Officer Dole placed his hands on him until the moment he was stopped was approximately “just over a minute”.[11]  Asked if it could have been 16 seconds, he said “actual touching my body, quite possibly” and “I haven’t counted it”.[12]

4. The plaintiff confirmed his allegation was that he was handcuffed while standing in the open door of the vehicle after being spun around by Officer Dole.  He agreed that was not what he told the Ombudsman who he told he was handcuffed on the ground.[13]  He said he could have told them anything, he was on drugs.[14] 

5. The plaintiff maintained Officer Dole hyper-flexed his spine.[15]  He agreed that what he was saying was that as Officer Dole put the handcuffs on, he put his knee into his back, hyper-extending his spine.  He agreed he did not see Officer Dole getting the handcuffs from Officer Winton.  He said it was Officer Dole’s right knee, suggesting if it was his left knee “we would have collapsed in a pile”.  Asked whether he told the Ombudsman about that, he said he was not sure what he told them.  It was suggested to him that he did not tell the doctors at Alice Springs Hospital about this when taken from the Watch House to the hospital.  He said he did tell them.

6. The plaintiff agreed he probably did not tell the Ombudsman about the allegation of Officer Dole pulling his head back and smashing his face into the roof of his car.  He agreed he did not tell the Alice Springs Hospital staff about this when taken to the hospital from the Watch House however maintained that it happened.[16] 

7. The plaintiff maintained Officer Dole took his shoulders and pulled him onto the ground backwards, causing him to land on his backside, extremely awkwardly and ending up breathless with his left foot and left leg twisted and stuck under his body, half on one side.  He then heard a crack or pop from his back and assumed that was when the damage was done.  It felt as though his back had been broken.[17]

8. The plaintiff adhered to his claim that Officer Dole stood behind him, put his foot on the right side of his neck, to the back of his ear and twisted his shoe from side to side like stubbing a cigarette.[18]  Asked about not telling the Ombudsman about this particular allegation he said “I was more concerned about my back”.  For similar reasons he said he probably did not mention it to the Alice Springs Hospital doctors and possibly not to Dr Hickey.

9. The plaintiff maintained that Officer Dole used his neck as a step when he walked over him towards Officer Winton.  He acknowledged it was “quite possible” that he did not tell the Ombudsman about that.  He said he told his lawyers but they left that allegation out of the statement of claim.  He said he did not tell Alice Springs Hospital doctors as he was more concerned with his back.  In relation to what he told Alice Springs Hospital staff about the diagnosis of a rash on his neck on 28 July 2005, he said not everything was recorded. 

10. The plaintiff agreed that when Officers Dole and Winton took hold of his arms and took him to the fence, it was not overly excessive but he was still in pain.  He did not recall telling Officers Dole or Winton the cuffs were too tight and he was having difficulty breathing.  He said they checked his back and noticed his hands were getting discoloured.  The uniformed police arrived and they cut the flexi-cuffs, not because of what he said, but because Officer Dole or Winton had told them to.  He did not tell the uniformed officers he had been assaulted but told them he was in “incredible pain”.[19]  He said they assisted him to the paddy wagon as they could see he could not move.

    1.3Stuart Johnson – Evidence of his Various Accounts and Descriptions of the Arrest

11. Mr Johnson agreed he had told many people, for example medical personnel, the Ombudsman and lawyers about the incident.  Some of those matters with respect to the Ombudsman have already been referred to.  He said he believed he told the truth on each occasion.  As will be discussed, at the Watch House it is recorded the plaintiff complained of back pain.  In his records of interview with police he made reference to “jumping on my neck” and “going for my neck”.  At first those statements appear to be probative and somewhat supportive of the plaintiff’s claims, however they must be considered in the light of the various accounts given by him over time, and how his version compares with the evidence of other witnesses.

12. The plaintiff was taken from the Watch House to the Alice Springs Hospital on 16 July 2005 at 17:33.  The relevant record notes “P.L Backache (sic)”; “40 year old male BIB Cops with the presenting complain (sic) of backache for few day after bent over.”  References are made under the heading “background” to L4-L5 disc protrusion; L5-S1 discs bulging; depression and medication, Cipramil.[20]

13. On 17 July 2005 he was admitted to hospital.[21]  A CT Lumbar Spine Scan was performed on 22 July 2005.  Noted under “Clinical History” was “History of left sided sciatica.  Got worse during last 1 week.”[22]  The discharge summary of 29 July 2005 stated in part “Presented with low back pain for few days after a fall”.[23]

14. Doctor Matarazzo, the plaintiff’s GP recorded he first spoke to the plaintiff about the incident after his release on bail and he “described in quite vivid terms a rather vicious arrest whereby his back and his neck were quite significantly hurt”.[24]

15. After being referred by Dr Matarazzo to the orthopaedic and spinal surgeon Dr Osti, an MRI scan was performed in Adelaide.  Dr Osti’s apparent understanding of the history is set out in his letter to Dr Matarazzo of 9 September 2005 that states:[25]

    Thank you for asking me to see this rather challenging man with a long history of back pain linked to a work injury in 1995.  Approximately 7 weeks ago as a result apparently of a case of mistaken identity he had been apprehended by police and had experienced sudden deterioration of his chronic back pain with irradiation to the left leg.  He informed me that prior to the police intervention and its aggravation effects he had suffered from leg pain although no different between left and right.

16. Accounts were also given to the Ombudsman, first on 9 August 2005: “one police officer was using him as a “trampoline” by jumping on his legs, and lower back.  He now suffers from sciatic problems, which forces him to use a wheelchair.” [26]  On 12 September 2005 as the first complaint of seven complaints was made:

    One of the arresting officers (named) came up to the #C from behind and pulled him backwards towards him and told him to sit down #C stepped backwards as the officer pushed him down on his shoulder; the officer forced the #C all the way to the ground.  The #C body was buckled backwards and to the left.  His left foot was forced awkwardly behind his torso.  The #c came to rest with his left leg under his bicep.  The #C’s head was close to the ground where he was cuffed. 

    It is alleged that the arresting officer then stood on Mr Johnson’s neck (the right side).  The officer put one leg on Mr Johnson’s neck with his full weight.  He pressed/ bounced once, released and pressed/ bounced again “like a trampoline.”  In the process the officer exacerbated an injury which Mr Johnson did to his spine in 1995 (L4-L5) and caused damage to L5-S1 (hernia).  As the officer released the pressure, the heel of his shoe scuffed over the skin on Mr Johnson’s neck.  This formed a scab which took three weeks to clear up.  The officer said “stay there”; he then said “you’re so fucked.”

17. The plaintiff was asked about the account of the incident he gave to the Ombudsman’s Office on 9 August 2005 and whether he had said Officer Dole had spun him around and handcuffed him while he was standing in the open door of the vehicle facing the vehicle.  He said when he made this complaint, he was on morphine.  He was cross examined in some detail about drugs, how he obtained them and their effects.  As to suggestions that contrary to his evidence he had told the Ombudsman he was handcuffed while on the ground,[27] he said he could have told them anything, he was on drugs and was impaired.  He said the account given to the Ombudsman was not an accurate representation of what occurred.  On further questioning about his call to the Ombudsman from the Alice Springs Correctional Centre on 9 August 2005,[28] he was asked if the summary of the complaints he had made against police was correct where he said that when he was arrested a police officer was using him as a trampoline by jumping on his legs and lower back.  He answered he possibly said that but does not know if that was true as he was on medication.[29] 

18. The plaintiff was asked further about his attendance at the Ombudsman’s Office on 12 September 2005.[30]  He agreed it appeared that at that time he said that he was cuffed while on the ground.  He again referred to medication, saying he was “not medicated now, not to that extent”.[31]  The plaintiff was asked further about the description he gave about Officer Dole standing on his neck (the right side), that “he put his leg on my neck, with his full weight.  He pressed/bounced once, released and pressed/bounced again, like a trampoline.”  When it was suggested that that part of the account was not true, the plaintiff said he was on medication.  It was put to him that it was not true, and he said “no”. 

19. The plaintiff said the medication he was taking that was affecting him at the time of the call on 9 August 2005 and the later interview at the Ombudsman’s Office on 12 September 2005, were supplied by Correctional Services.  He said some of the medication was similar to those prescribed by his general practitioner, but that some was extra.  Of the medications, he said Tramadol was one, but was not sure about Diazepam.  He thought he had also taken Celebrex, prescribed by his general practitioner.

20. The plaintiff accepted after the arrest he was in custody until he was granted bail on 30 August 2005.  He accepted he was returned to custody on 19 November 2005, however was at liberty when he was interviewed at the Ombudsman’s Office on 12 September 2005.  Asked whether that meant he could not have been given drugs at the relevant times by the Correctional Centre, he said that on release, drugs were given and “you take what you’ve got with you”.  Asked if that meant he was not under the influence of drugs when he spoke to the Ombudsman’s Office, he said “that whole area is quite blurry”.[32]  He said he was still medicated from Bath Street Clinic, his general practitioner’s clinic. 

21. On being taken to the Bath Street Clinic records, he agreed that on 1 September 2005 he was prescribed with Celebrex, a muscle relaxant and Stilnox, a sleeping tablet. He agreed that on 2 and 5 September 2005 no drugs were prescribed for him,[33] and that he saw the doctor on 13 September 2005, the day after his attendance at the Ombudsman’s Office. It was put to him that there was nothing in the prescriptions at that time that reduced his ability to describe the events of the arrest. He replied he still had medication from before the arrest such as Tramadol and Coldagin Forte from Dr Matarazzo and had previously been prescribed an antidepressant.[34]  He did not agree with the proposition that he was as able on 12 September 2005 as he was giving evidence in the hearing.  He said it was the combination of the Tramadol and the intensity of the pain that was affecting him then, but that he was not suffering pain of that kind when giving evidence, although he was taking Tramadol.

22. The plaintiff was asked about the seven complaints against police in the record of his complaint to the Ombudsman on 12 September 2005.  He agreed he was able to recall the details about what occurred in relation to complaints numbered two to seven which primarily concerned police attendances to his house.  He agreed the complaints made were pretty close to what happened.[35]

23. The plaintiff was taken to the case note entries of the officer investigating his complaints, Greg Lade, of 29 September 2005, which concerned the arrangement of an interview to deal with his complaints against police.[36]  His attention was drawn to a description of an attempt by Greg Lade to interview him at his home.[37]  The plaintiff said he did not know if police came and banged on the front fence, although he accepted that it happened.  He agreed that he was contacted by phone, went to the gate of his house, declined an opportunity to be interviewed about his complaints and referred investigators to his solicitor.  He accepted what occurred was recorded in the letter from the Ombudsman to his solicitor, Mr Sinoch.  The plaintiff was taken to correspondence requesting advice from his solicitor about whether he would make a statement.[38]  He was referred to later correspondence advising that since there had been no response to that request of 25 November 2005, the Ombudsman was declining to investigate the complaint.  The letter also noted the plaintiff had a legal remedy.  Asked whether that was how his complaint against police was resolved and the plaintiff said “it seems to be”.[39] 

24. The plaintiff was taken to a letter from Dr Windsor to Dr Matarazzo of 28 November 2007.[40]  Dr Windsor wrote, “He states that he was forcibly made to lie prone until ‘cuffed’ ….”  The plaintiff said that those are “his words, not my words”.  He did not accept he had said that to Dr Windsor. He said he does not use the word “prone”.  He suggested the reason for the wrong notation was: “Watch too many cop movies” and then “I think it’s an honest mistake”.  He agreed with Dr Windsor’s description of being manhandled and felt a crack.[41] 

25. He disagreed with the proposition that Officer Dole took him down quickly, placed him on his stomach and held him down with his body weight with a knee in between his shoulder blades.  He maintained he was handcuffed while standing.  The plaintiff was taken to later observations of Dr Windsor from 22 November 2007,[42] in particular: “Neck held down by boot and cuffed”.  The plaintiff said Dr Windsor had that wrong, indicating it was some time after the event.[43]

26. The plaintiff was referred to an entry in the Alice Springs Hospital records on 19 July 2005 recording that the plaintiff told a physiotherapist that he was on his knees, head on the ground and twisted to the side when a police officer stood on his neck.[44]  The plaintiff said, “That’s what she’s recorded.  That’s not what I said”.  He said it was an abbreviation.[45]  He then agreed with his description that Officer Dole “put his left foot on the right side of [his] neck under and to the back of [his] ear and twisted his shoe from side to side like he was stubbing out a cigarette”.   

    1.4Initial Observations of the Plaintiff’s Evidence

27. The plaintiff has clearly given a number of inconsistent accounts, not only with respect to peripheral matters but importantly in terms of the mechanism of the arrest.  The arrest itself was on any account, including the plaintiff’s, a very quick procedure that took place after a car chase and it is unlikely the plaintiff genuinely recalls each element of the procedure.   

28. It is not only the arresting officers who said the plaintiff was on his stomach when the flexi cuffs were placed on him, but also Officers Sims and Curtiss who also attended the scene.          

29. Ultimately, the recollection by the plaintiff of key historical matters set out in various records relevant to his claim is poor.  Although extensive lapses in recollection are to be expected after such a lengthy period, the plaintiff was quick to accuse others, notably hospital staff, for any perceived errors that tended to detract from his claim. 

30. While it is of course entirely possible that incorrect records may have been entered from time to time through miscommunication or for other reasons, the plaintiff rejects the accuracy of almost all records potentially contrary to his case that were put to him in relation to his description of the critical events. 

31. Furthermore, the plaintiff’s explanation for his accounts to the Ombudsman and his reliance on medication and its source were not convincing; changing throughout the course of his evidence.  For example, his initial complaint to the Ombudsman on 9 August 2005 included the allegation of Officer Dole using him as a trampoline by jumping on his legs and lower back. On 12 September this changed to an allegation of Officer Dole putting one leg on his neck with the comment of “press/bounced like a trampoline”.

32. The plaintiff obviously did not see what Officers Winton and Dole were doing when they were behind him, yet he was prepared to suggest that he knew.  

33. It cannot be accepted that the plaintiff has a sound or reliable memory of the event, nor that his memory is currently the same, as he suggests it was, as 2005.  The plaintiff’s evidence reveals significant internal inconsistency.  This especially comes to light when comparing the description given by the plaintiff in this hearing with the various descriptions of the incident on other occasions, including to health professionals which will be discussed in more detail in the context of the plaintiff’s medical case.

34. During this hearing when the plaintiff suggested the mechanics of the alleged neck injury to Officer Winton, he suggested: “you actually witnessed him (Officer Dole) standing on my neck.”[46]  Nothing was suggested about Officer Dole grinding his heel into the plaintiff’s neck or using his neck as a step.  Nor do the pleadings refer to Officer Dole using the plaintiff’s neck as a step.  It also appeared to be omitted from the history the plaintiff initially gave to Dr Hickey.  Dr Hickey was unable to say when the plaintiff told him of this part of the allegation.[47]

35. It is possible that the effect of various medications and the difficulties of being in custody, poor health and the inherent uncertainty of his circumstances explains in part the differing descriptions given by the plaintiff, however, overall his evidence in relation to the events giving rise to the claim are unreliable.  His case is not assisted by his claim that he was never involved in drugs, or knew nothing about them, or that police approaches to him initially on 14 July 2005 were hostile acts of unknown persons intent on harm.  As will be seen from the defendant’s witnesses, the plaintiff had been under surveillance for some time and there were reasons his arrest became important in the context of a compromised listening device and the cessation of the investigation. The plaintiff’s description of the lead up events to the arrest, that he was being chased by unknown men posing a danger to him and his family, are not credible.  The plaintiff’s account of his life potentially being threatened does not sit easily with his decision to stop in on his associate Mr Naudin while on his way home.  Furthermore, while it is possible that his plea of guilty was ultimately entered on pragmatic grounds, given the whole history, including the surveillance and the evidential material gathered in the investigation, and that he was prepared to plead guilty to a serious charge, the claim that he was not involved with cannabis distribution or the facilitation of its supply is improbable.

1. Overall, the descriptions of what the plaintiff said occurred in the arrest, particularly in relation to the allegation that Officer Dole stepped on his neck, and twisted his shoe as though stubbing out a cigarette, are deeply conflicted and unreliable.  Without credible supportive evidence, I could not on the balance, find the plaintiff’s version of events with respect of the lead up to the arrest, or the arrest itself including the alleged assault, battery and use of excessive force, proven.  The evidence that could potentially support the claim is unconvincing.  This is also in the context of credible and convincing denials of the plaintiff’s version, by the witnesses called by the defendant. 

   1.5James Harvey Doyle – Summary and Discussion of Evidence

2. James Harvey Doyle gave oral testimony in the plaintiff’s criminal trial in 2006 and confirmed the transcript of that testimony is an accurate account of the evidence he gave.[48]  At the time of the arrest he and his brother, Richard Harvey Doyle were living at 3 Hong Street, diagonally opposite 2 Hong Street. 

3. In evidence at the trial in 2006,[49] Mr Doyle said he looked across the road and saw a police officer walking towards a maroon station wagon where he said Stuart Johnson was standing with the door open, not moving.  He said the police officer went up and stood behind Stuart Johnson and pushed him against the car.  His head was about level with the roof.  The police officer turned and asked another police officer for something who then retrieved what looked like handcuffs from the car and walked back over to the officer who was standing at the open door of the maroon car and handed them to him.  He agreed because he was standing on the opposite side of the road he could not see what was actually happening.  Stuart Johnson lunged forward into the roof of the car.  The police officer stood very close behind for a short time, placed his hands on his shoulders and pulled him backwards straight onto the floor.  As they came backwards, Stuart Johnson rolled onto his left hand side.  Mr Doyle said he had a partial view.  He saw the police officer stand up after he had pushed him onto the ground.  As the police officer started to walk over towards the driveway, he seemed to “lift up with an uneven step, like he’d stepped on something”, and then continued to walk over to the other police officer.  Mr Johnson continued to lie on his side.  The police grabbed him under the arms and put him against the fence.  Mr Doyle said he did not intervene because he did not know what was happening and heard the police officer identify himself as police, so did not want to get involved.  He was approached later by Stuart Johnson who did a “door knock” to see if anyone had seen the incident.  He thought it was a few weeks after the event.  He was then contacted by Mr Johnson’s solicitor and swore an affidavit on 24 June 2006.  He agreed that was a few days before the jury trial in 2006.

4. In cross examination James Doyle said his brother Richard parked the car right up in front of the house. When he was walking to the door he heard someone yell out and he moved to the end of the car, not the post box, so he was still near the house.  He also said, however he heard the sounds of the cars when Mr Johnson and police pulled up and that is what sort of alerted them to have a look.  When it was put to him this was different to his evidence at the trial that the first thing that drew his interest was the words he heard called out he said “I agree with that’s what I testified, that I heard that.  But I’m pretty sure I heard cars pull up”.  Put to him this is different to what he said in 2006 he said “no, I’m just adding it”.[50]

5. In relation to the evidence he gave at the jury trial that he had known Mr Johnson “since about 2001”, he said he had dealt with him in his capacity as a mechanic and waved to him as a neighbour.  He also said he recognised the police officer Martin Dole, because he knows him.  He said he had been standing in his front yard, in the drive way and he did not move any further.  He believed he heard a noise when Stuart Johnson went to the ground but could not say exactly. 

6. Mr Doyle said he had been told Mr Johnson was fighting drug charges, which was why his testimony had been requested.  He agreed Mr Johnson’s lawyer told him that Mr Johnson had been quite badly hurt in the arrest.[51]  He agreed it was fair to say that prior to the criminal trial and giving evidence in this hearing he had had a number of conversations with Mr Johnson or his lawyer and with his brother Richard Doyle about the arrest.[52]  When questioned about various details that he could not recall, Mr Doyle acknowledged, “It was a very small incident in my life”.[53]  He also acknowledged that the arrest was just “being finished” when he walked down his drive way to get a better look and that during the arrest, his view of Mr Johnson and Detective Dole was blocked by the vehicle.[54] 

7. When analysed, James Doyle’s support for the plaintiff’s case was not particularly strong.  It was plain the arrest itself was a very quick incident and that Mr Doyle did not see much of it. 

8. As might be expected, with such a delay between giving evidence at the criminal trial and this hearing, a number of details of James Doyle’s evidence changed.  At the criminal trial he stated he heard a police officer identify himself and denied that he heard the plaintiff say anything at all.  In his evidence in this hearing, he said he heard a police officer identifying himself, and Stuart Johnson got out of his car and identify himself to police.  In this hearing James Doyle accepted his view was blocked during much of the arrest and could not see much below the roof of the car.  He said the car was blocking his view when the plaintiff was on the ground.[55]  Contrary to his own observations, he agreed that if the plaintiff had said to others he was handcuffed on the ground, he would accept that as accurate, although that differed from his evidence given during the jury trial when he said he thought the plaintiff was being handcuffed when he was standing up.  He agreed he had made an assumption about the plaintiff being handcuffed when he was standing up.  In relation to his previous evidence about the police officer’s movements (“he seemed to lift up with an uneven step, like he’d stepped on something and just continued to walk over …”) he said,   “he just looked like he was on the edge of a concrete driveway”.[56]  He acknowledged he could not see where Office Dole’s feet were and had made an assumption about what was going to happen. 

9. James Doyle’s evidence that he was not able to to see much of the arrest is consistent with what could be ascertained from the view undertaken at Hong Street in terms of the line of sight from James Doyle’s drive way, including the end of the drive way, to 2 Hong Street.  The evidence James Doyle gave at this hearing is less supportive of the plaintiff’s case than the evidence given in the 2006 trial.  While he accepts that the transcript is a true and accurate record of what he said in 2006, his evidence has shifted in several respects.  It is conceivable that within the different context of a criminal trial, his evidence in 2006 was not scrutinised in the same way by opposing counsel.  James Doyle no longer fully adhered to the evidence he gave at trial.

10. While I have not discounted to any significant degree James Doyle’s evidence because he has had prior dealings with police, in particular Officer Dole, or his denials about that, in my view his recollection of events was of limited value given the line of sight issues and the fact that he had discussed the event with other interested parties as previously mentioned.  While some aspects of his evidence are consistent with the evidence of Officers Dole and Winton, he did not recall Officers Sims and Curtiss arrive or see the flexi cuffs cut.  Furthermore, it is clear he formed many impressions based on assumptions rather than actual recollections.

11. This is particularly evident in his re-examination where he stated what he specifically recollected of the arrest: “Where he identified himself.  That was probably the most stand-out to start with.  And probably when they – you fell backwards or got pulled backwards onto the floor and where you stayed.  I’d say that would be about it.”[57]

    1.6Richard Harvey Doyle – Summary and Discussion of Evidence

12. Richard Doyle gave evidence in the jury trial in 2006.  His evidence in the jury trial was that at about 8:30 pm on 14 July 2005 he and his brother James Doyle returned to 3 Hong Street from Coles.  When he got out of the car he heard a voice saying, “Police, stop you are under arrest”.  He and his brother walked down towards the entrance of their drive way at 3 Hong Street and observed their neighbour, Mr Johnson standing at the open driver side door way of a maroon Commodore.  Officer Dole was walking briskly towards Mr Johnson who remained stationary.  Officer Dole positioned Stuart Johnson against the Commodore such that Mr Johnson’s body was protruding to the open door way of the car.  Officer Dole called to Winton, “have you got any cuffs?”  Officer Dole then appeared to be putting cuffs on Mr Johnson who had remained quiet with his arms behind his back.  Mr Johnson raised his head as he stood upright just before Officer Dole pushed him back down into the roof of the car.  Officer Dole put his hands onto Mr Johnson’s shoulders and pulled him backwards causing Mr Johnson to fall heavily onto his bum, still with his hands behind his back.  Richard Doyle said he thought Mr Johnson grunted when he hit the ground.

13. In his evidence in the jury trial in 2006 Richard Doyle said at that point the bonnet of the Commodore was partly obstructing his vision.  He said there was sufficient light for him to see Officer Dole who appeared to be stepping on something as he walked over Stuart Johnson to approach Officer Winton.  He said the two police officers talked for a while, then picked Mr Johnson up from under his arms and pulled him back towards the fence.  A paddy wagon pulled up and took Mr Johnson away. 

14. The overall tenor of Richard Doyle’s evidence in this hearing was that he remembers very little of the incident or of the evidence that he gave in 2006.[58]  As such, Richard Doyle’s evidence cannot be given significant weight.  It can barely be tested at all.  He would adopt what he said in 2006 but does not have an independent recollection of the events.  He agreed his affidavit[59] prepared for this matter was written for him by Mr Eaton and he had a quick look at it and signed it.[60]  He agreed his recollection of events relied entirely on reading the transcript of 2006.[61]  He acknowledged he would not be able to answer questions about things he had said in 2006, saying he had a vague recollection of what happened and believed the transcript to be fairly true and correct.  Apart from that he said he did not have a lot to offer.[62] 

15. Parts of Richard Doyle’s evidence is consistent with the accounts given by Officers Dole and Winton, save that he said handcuffing took place at the side of the car. In 2006, Richard Doyle said as Mr Johnson was standing in the doorway of his car, he saw a police officer walking up to him and it looked like the police officer was putting cuffs on his back, at the same time as pushing him.  He saw the police officer push him down, pull him backwards and had his hands on his shoulders.  He did not recall the flexi cuffs being cut off the plaintiff’s wrists but agreed it may have happened.  As one police officer went to walk towards the other one, “He sort of raised slightly as he was walking”.[63] 

16. There is some inconsistency between the evidence of James Doyle in this trial and Richard Doyle given in 2006, about where they were when they saw the incident.  Richard Doyle said in 2006 they were standing at the end of the driveway near the post box, whereas James Doyle said they were near their car, parked on the driveway where the front door is.  This detail has a significant bearing on the viewing conditions.  If James Doyle is correct, the view of the incident would not have been clear, as is apparently acknowledged to some degree by him.

    1.7Martin Dole – General Summary of the Events Immediately Before the Arrest and the Arrest

17. At the time of the events giving rise to the claim, Martin Dole was a Detective Senior Constable in the Drug Intelligence Unit, Alice Springs.  At the time of this hearing he was Detective Acting Senior Sergeant in Northern Territory Police Professional Standards.

18. Officer Dole states he had been involved for a number of weeks prior to the arrest in ‘Operation Twilight’.[64]  This operation included covert surveillance of the plaintiff and some of his associates in regard to significant cannabis distribution in Alice Springs, and was co-ordinated by Detective Sergeant Sims.  As part of the operation he had obtained a warrant to install a surveillance device in the plaintiff’s business premises, and familiarised himself with the plaintiff’s daily activities and surveillance reports.

19. Prior to the arrest he believed the plaintiff’s drug related activities had continued for many years and had been the subject of an unsuccessful police operation some years before.  He also understood the plaintiff had prior police involvement.[65]  There was no significant challenge to this evidence.

20. Officer Dole was called on duty on the night of the plaintiff’s arrest.  He was advised the investigation had been compromised when a surveillance device had been found by the plaintiff or one of his associates, who had each fled by car in different directions.  The associates were Michael Naudin, Franklin Henry and Stuart Pritchard.[66]

21. Officer Michael Curtiss called Officer Dole to advise him that Officer Peter Winton had located the plaintiff at Diarama Village.  Officer Dole went to Diarama Village to assist Officer Winton to apprehend the plaintiff for serious drug offences.  Additionally, the plaintiff was to be apprehended to prevent him and his associates from getting drugs out of their premises and to recover the missing surveillance device. 

22. Officer Dole states that at Diarama Village he recognised the plaintiff’s car, a maroon Commodore station wagon.   The plaintiff was inside the car and Officer Winton was at the driver’s side window.  He pulled into the car park next to Officer Winton’s car and was getting out to arrest the plaintiff when the plaintiff reversed out quickly and sped off towards the Mobil Service Station onto Larapinta Drive. 

23. Officer Dole spoke to Officer Winton and told him that Detective Sergeant Sims had instructed the plaintiff was to be arrested.  As the plaintiff was out of sight, they got into separate unmarked cars to begin to search for him.  He was in communication with Detective Sims but not with Officer Winton.  He and Officer Winton drove in different directions and after driving to a number of locations where he thought the plaintiff might go, drove along Nelson Terrace and noticed the plaintiff’s vehicle coming towards him at speed.  He did a quick u-turn and followed it.  Although not using lights or sirens, he believed the plaintiff knew they were police officers because he was flashing his headlights and matching his speed.  He said the plaintiff had also seen him previously and knew he was a police officer.  He said the plaintiff’s driving was excessively fast.  He estimated the plaintiff’s speed along Larapinta Drive to be 150 kph and said the plaintiff clipped the curb at a round-about, jumped the median strip near Hong Street and drove along the wrong side of the road as he headed towards his residence.  Officer Dole pulled up behind the plaintiff’s car as he pulled up onto the verge outside of 2 Hong Street. 

24. Officer Dole states he got out of his vehicle and ran to open the plaintiff’s driver’s side door as he was getting out of his car.  He grabbed him near the shoulder area with both hands, pulled him out of the vehicle and put him straight down onto the ground face down.  He said he did this very quickly.  When the plaintiff was on the ground, he employed a three point hold with his knee on his back on his shoulder blades and was restraining his arms with his hands.  He said the plaintiff was not given any opportunity to resist.  Officer Dole told the plaintiff they were police officers and he asked Officer Winton if he had any handcuffs.  Officer Winton retrieved some flexi cuffs and put them on the plaintiff’s wrists. 

25. Officer Dole said he used that mechanism of arrest as he wanted to stop and secure the plaintiff before he had any opportunity to cause harm to either Officer Winton or himself and before he could get into his yard.  He said he understood and maintains that following a high speed chase, a traffic apprehension is dangerous.  He stated the plaintiff was an “unknown quantity” and did not know what he had in his vehicle or on his person that might be used as a weapon.  He thought from the high fence of the plaintiff’s residence the yard appeared fortified which could have made arresting him difficult if he had been allowed to enter his yard.  He believed that making the arrest of the plaintiff in that way, including handcuffing, was necessary and he would do the same today.

26. Officer Dole stated he released his weight from the plaintiff after Officer Winton applied the cuffs and did a pat down to check for weapons.  He also checked for weapons in the car.  He does not recall if the plaintiff said anything while he was lying on his stomach however recalls he was not yelling or crying out.  After the searches he considered him safe and pulled the plaintiff up from his stomach by rolling him over onto his back, pulling his knees up and getting him into a sitting position.  They then shuffled him over to sit, leaning against the fence of his residence to wait for general duties officers to take him to the Watch House.

27. Officer Dole said the arrest was consistent with his police training.  He acknowledged ground stabilisation is not a standard way to make a traffic arrest but in the circumstances he thought it was appropriate.  He denied allegations that he pulled the plaintiff’s arm up behind his back, put the cuffs on him, hyper-flexed his back, pushed him into the driver’s doorway with his knee, slammed his face into the roof of the vehicle, put the heel of his shoe onto his neck, or used his neck as a step.

28. Officer Dole also prepared a statement in relation to the criminal charges against the plaintiff and gave evidence at the committal proceedings in September 2005 and the Supreme Court trial in 2006.[67]  He stated he remembered what occurred because of the nature of the allegations made against him by the plaintiff over an extended period of time.  He has used relevant documents including statements and previous trial transcripts to refresh his memory.  He does not recall seeing the Doyle brothers.  He has not worked with Officer Winton very often.  At the time of swearing his affidavit of 2 October 2015, he had been in the police force for 18 and half years and during that period has only had one complaint of using excessive force made in the context of a protective custody matter in 2002.  The complaint was investigated and found to be unsubstantiated.

    1.8Martin Dole – Summary of Evidence Given in Cross Examination of the Events Immediately Before the Arrest and the Arrest

29. In cross examination much of Officer Dole’s evidence was confirmed.  He agreed with the suggestion put to him that during the pursuit he was matching the plaintiff’s speed.  He disagreed with the suggestion that he was nudging the plaintiff’s vehicle or that he was “right on (his) tail”, rather stating, “I was behind you a bit”.  Officer Dole agreed that at the trial in 2006 his evidence was, “I was right behind him, right on his tail”.  That matter was not pursued further in cross examination.  It is apparent from the transcript at the trial the phrase “right on his tail” is a reference to when they pulled up at 2 Hong Street.[68]

1. Asked when it became apparent to Officer Dole that the plaintiff was going to Hong Street, he said it was not.[69]  Asked if when he approached the plaintiff he said, “I’m a police officer”, he answered, “No, I didn’t”.  Asked if he was not too sure about that in 2006, he said he did not recall. 

2. Asked what he had meant by the description that as the plaintiff was getting out of the vehicle he “met” him and ground stabilised him, Officer Dole answered, “as I got to you Mr Johnson, you were attempting to get out of the vehicle.  I grabbed you by the shoulders and I put you face down onto the ground”.  Asked whereabouts he grabbed him, Officer Dole said, “on the shoulder area of both - upper body shoulder area”.  He agreed the plaintiff did not resist.  As to whether the plaintiff was compliant, he said it was difficult to answer because the plaintiff was ground stabilised and he was compliant once he was on the ground being restrained.  As to how long the arrest process was, Officer Dole said it was very quick, it would have been seconds. 

3. Officer Dole said that at no stage did he spin the plaintiff to face the car.[70]  Asked about his evidence on this subject at the 2006 trial, his attention was drawn to a question, “well how did you push him there?” and the answer was, “grabbed him by the shirt, spun him around, pushed him on the ground as we’re trained to do”.[71]   He agreed he said the plaintiff was spun as in “spun around and pushed, face down, first into the ground”.[72]     It was then put to him that the sequence of events was that he pulled the plaintiff out of the car, put the plaintiff on the ground, put cuffs on him, rolled him onto this bum and put him against the fence and then waited for general duties in the paddy wagon to come.  Officer Dole answered, “yeah look I don’t want to be argumentative but I haven’t said that we rolled you onto your bum at all”.  Officer Dole agreed he would have told Officer Sims that the plaintiff had been arrested and would have spoken to Officer Curtiss but could not remember what he had said. 

4. Later in cross examination Officer Dole was asked again about ‘spinning’ the plaintiff and it was suggested that he did not spin the plaintiff on the ground and Officer Dole answered, “You were on the ground.  I didn’t spin you.  Is that what you’re saying?”  He was then asked, “When I was standing, did you spin me?”  Officer Dole answered, “As we came out of the car we spun straight down to the ground”.  Officer Dole indicated his two hands to the right of himself pushing downwards to the floor.  He said he could say spun or turned to the right and downward.[73]  He disagreed with the suggestion he spun the plaintiff facing the car.  He said he did not push him into the car or that cuffs were put on the plaintiff while he was standing.[74]  Officer Dole disagreed he pulled the plaintiff upwards, standing him up by the shoulders, or that he pulled him back and as he stumbled, pushed him to the ground.  He said he was 100% sure about that.  Asked if he remembered putting his foot on his neck and he said, “I never put my foot on your neck” stating that no time would that be a practice that a police officer would do.  He agreed it would be dangerous.[75]  He agreed with the suggestion he had put his arms under the plaintiff’s arms and that Officer Winton had put his under the other side and shuffled him back to the fence.  Officer Dole said he was not sure when Officer Curtiss arrived but that he was there before the general duties officers arrived.  Officer Dole said he believed Officer Sims arrived shortly after the arrest but was not sure.[76] 

   1.9Discussion of Martin Dole’s Evidence of the Arrest and Surrounding Circumstances

5. Little of Officer Dole’s evidence, save the particular allegations comprising the claim of assault, battery and the use of excessive force was challenged.  Officer Winton substantially confirms his account and Officers Sims and Curtiss agree the plaintiff was laying face down when they arrived at 2 Hong Street.  Given the background of the surveillance and the plaintiff’s manner of driving, together with the unchallenged evidence to be summarised about the police practice of ground stabilisation in certain situations, Office Dole’s decision to use this method is consistent with accepted police procedures and practice.  Officer Dole was not challenged in any significant way about the factors that informed his belief about the appropriate mode of arrest or the reasonableness of his belief.  He readily accepted the proposition that the plaintiff did not resist, but explained the other factors that were relevant to his decision.  In terms of the events leading up to the arrest, there is no reason to reject Officer Dole’s evidence.  It is a more credible explanation for the chase at speed than the plaintiff’s version of events.  In relation to the alleged battery or excessive force, Officer Dole’s evidence is consistent with the evidence of Officer Winton.

6. Officer Dole’s evidence must of course be assessed in the light of what occurred at the police station and the evidence relevant to the claims of injury or the exacerbation of an injury.  In one interview the plaintiff made reference to “going for my neck” and “jumping on my neck.” During the second interview the plaintiff was advised by Officer Sims that he could make a complaint.  Officer Dole acknowledged he should have addressed the complaint immediately but was focused on the investigation.  The interviews will be discussed further in these reasons.  This does not lead me to reject Officer Dole’s version of events.  The apparent inconsistencies that arose in his evidence when compared with his trial evidence were adequately explained by him.  Ultimately, I assessed his testimony as clear, coherent and credible.

   1.10Peter Winton – Summary of Evidence of Events Before the Arrest and the Arrest

7. Officer Winton is now an Acting Team Leader of a unit of the Australian Federal Police but at the relevant time was a Senior Constable in the Northern Territory Police.  He had been a Northern Territory police officer for over 18 years.  He resigned as a Sergeant on 11 October 2013 and commenced with the Australian Federal Police.  He described the general background details of “Operation Twilight” as involving the covert surveillance of the plaintiff in relation to “large scale illicit drug dealings of cannabis”.[77]  He recalled being told that a surveillance device in the plaintiff’s premises had been found and to follow the plaintiff who had fled the premises.  He followed the plaintiff to Diarama Village.  He said he got out of his vehicle and walked to his car.  He recalled showing the plaintiff his police badge and told him he was a police officer.  He cannot now recall whether he told the plaintiff he was under arrest or whether he told him he wanted to speak with him, but he said he had no doubt that the plaintiff knew he was a police officer.  The plaintiff was pursued after he drove off after that interaction.  Officer Dole joined him in the search for the plaintiff.  He described the pursuit, noting the plaintiff was driving fast and dangerously.  The manner of his driving led Officer Winton to conclude the plaintiff knew police were following him.

8. Officer Winton stated that when they arrived at 2 Hong Street, Officer Dole got out of his vehicle very quickly and arrested Stuart Johnson “before he made it to his front gate”.  Officer Winton recalled the arrest as ordinary with nothing untoward.  He said the apprehension of Mr Johnson was  “pretty much” completed before he got out of his vehicle.  He approached Officer Dole, returned to his own vehicle to collect handcuffs, returned to Mr Johnson and put handcuffs on him.  As he had been evading police for the last half an hour he considered he was a flight risk.  He also referred to the seriousness of the offences he was suspected of committing.  He confirmed the plaintiff did not resist arrest and confirmed that if there had been a struggle it would have stayed in his mind but nothing “stands in [his] memory”.  He said he had a good view of the arrest and did not see anything like Officer Dole bending Mr Johnson forward into the door of the vehicle, or bashing his face onto the vehicle roof or standing on his neck.  He said those things did not happen and was surprised to hear that those allegations had been made.  He recalled also that soon after the arrest Mr Johnson was taken by general duties officers.  Officer Winton states he has never been subject to disciplinary action as a member of the police force. 

   1.11Peter Winton – Evidence Given in Cross Examination on Events before the Arrest and the Arrest

9. Officer Winton agreed with the suggestion that initially the plaintiff was travelling at normal speed.[78]  Asked if he was instructed to arrest the plaintiff at or around Diarama Village he said he did not recall but agreed his previous evidence was that he was instructed to follow Mr Johnson, not to arrest him.  He acknowledged that in previous evidence he had agreed that he was using a two way hand held radio.  He did not recall that the hand held radio was not working for a time.  He agreed he was watching the plaintiff at Diarama Village.  After an interaction with each other, he agreed it was at that point the plaintiff sped off.  He disagreed with a suggestion that Officer Dole was not standing by Mr Johnson’s car.  His recollection was that Officer Dole arrived just as he was leaving.[79]  Officer Winton agreed he found the plaintiff ten minutes later and it was then that the plaintiff accelerated,[80]  and he turned to follow.  He concluded Officer Dole was in front of him, following Mr Johnson.[81]  He agreed it was about then the plaintiff started driving dangerously and said his recollection was that he did not lose sight of the plaintiff from that time.[82] 

10. He agreed with the suggestion that at Hong Street, Officer Dole was, “onto him” as soon as he opened his door.  Officer Winton said his recollection was the plaintiff was moving towards the gate but did not get very far.  Taken to the trial transcript of 2006 where Officer Winton had said “he didn’t really have much time to get anywhere” he commented that his memory was that the plaintiff was “aiming towards the gate”.[83]  Officer Winton agreed his memory was a bit of a blur.  He agreed he was getting out of the car at the time of the arrest and his was the third car in the row.  He did not recall conversations.  He agreed there was lighting in the area of Hong Street.  He said the only time he did not have the plaintiff and Officer Dole in his sight was when he went back to get the flexi cuffs.  He said he did not recall sliding the plaintiff to the fence.  He did not see anybody else during the arrest.  He agreed a paddy wagon turned up.[84]  Asked whether the plaintiff was compliant and Officer Winton answered, “It’s a hard question to answer, compliant … compliant is (sic) as far as you are running away from police after a listening device got found in your house”.[85]  He agreed there were no compliance issues after the arrest and the arrest happened quickly. 

11. He disagreed that he or Officer Dole stepped on the plaintiff’s neck saying, “I couldn’t imagine at any stage he’s stood on your neck, no”.[86]  Officer Winton was asked: “I’ve actually missed one vital step actually, the step.  Whilst I was laying on the ground and before you both picked me up and took me to the fence, you actually witnessed him standing on my neck.  Do you remember that?”[87]  He answered “no”.  It was suggested to him that Officer Dole immediately grabbed the plaintiff, spun him around while standing in the open doorway of the car, faced him into the open side of the car, and held him against the car.  He was then handed cuffed and they were applied tightly while using his knee to brace against the plaintiff’s back.  Officer Winton said that was not his recollection.  Asked if he remembered the plaintiff’s body being pushed into the open side of the car on the driver’s side, he said “no”.  Asked if he remembered Officer Dole pulling the plaintiff’s head backwards and pushing it forward, striking the roof of the car and he said, “no”.  Asked if he remembered Officer Dole pulling the plaintiff backwards by the shoulders and pushing him down at the same time (pushing him down with his weight on his shoulders so that he landed on his buttocks and remained there for a short period of time on his back),  Officer Winton answered, “no”.[88]  Officer Winton said he had not spoken to either Detective Dole or Detective Sims recently about the matter.

    1.12Discussion of Officer Winton’s Evidence

12. Officer Winton’s evidence was straightforward.  He clearly confirmed the reasons for the pursuit of the plaintiff and his arrest and that there was nothing untoward about the arrest.  He gave adequate reasons for using handcuffs.  His evidence is largely consistent with Officer Dole’s, and I accept that they have not spoken to each other recently about the matter. 

13. Officer Winton was not involved in later interviews at the police station with the plaintiff.  His recollections are not clear with respect to the presence of other officers or peripheral details.

14. In as much as the Amended Statement of Claim alleges Officer Winton aided and abetted Office Dole in a battery and the use of excessive force, there is nothing in the evidence of Office Winton that could support liability on that  basis.

    1.13Clinton Sims – Summary of his Evidence of the Background Circumstances and his Involvement with the Plaintiff

15. At the time of the incident Superintendent Sims was a Detective Sergeant in the drug and intelligence unit.  He co-ordinated “Operation Twilight”.  The operation involved the use of listening devices to conduct covert surveillance of the plaintiff and his associates in relation to clandestine operations at his business premises at Shed 1, 60 Elder Street, involving the dealing of cannabis.[89]  The intelligence in relation to the plaintiff concerned suspicions about the plaintiff’s distribution of large amounts of cannabis in Alice Springs.  His affidavit provided a significant amount of detail in relation to that operation.  In addition to utilising an observation post, video surveillance and a listening device, a tracking device was also installed on what he described as the plaintiff’s “lead vehicle”, a Toyota Land Cruiser. 

16. On the night of the arrest, one of the plaintiff’s associates, Michael Naudin, found a surveillance transmission device with a bug sweeping device.  Detective Sims called the officers involved in the operation and briefed them on the next phase, as the investigation had been compromised.  Officer Sims tasked members who were on their way to follow the drivers who had left the plaintiff’s shed at Elder Street.  He believed the plaintiff’s maroon Commodore station wagon probably had items of interest such as drugs or the surveillance transmission device.  He said he directed Officers Dole and Winton to locate that vehicle and if they found the plaintiff, to arrest him. 

17. The next he heard was that the plaintiff had been arrested outside his premises at 2 Hong Street.  When he arrived, Officer Michael Curtiss was there and the plaintiff was lying face down on the verge next to his vehicle with his hands behind his back in flexi cuffs.  He was sat up by Officers Winton and Dole and complained about the tightness of the flexi cuffs which were removed.  He did not remember the plaintiff saying anything else.  If he had complained about being assaulted by police or any other injuries, Officer Sims said he would remember that and would most likely have noted it in his police diary.

18. Officer Sims provided copies of four warrants that were executed at 2 Hong Street. The first was a warrant authorising the use of a surveillance device issued on 8 June 2005 and was executed on 28 June 2005. The second and third warrants were issued under s 120 B of the Police Administration Act, the fourth under s 34 of the Criminal Property Forfeiture Act.  Finally, a warrant running sheet was provided concerning execution of one warrant in 2005.[90]

    1.14Clinton Sims - Cross Examination on Background Circumstances and Involvement with the Plaintiff

19. Officer Sims was cross examined extensively about the listening device and its placement.  He said he was at the listening post on 14 July 2005 and left after 6:30, leaving Officer Michael Curtiss behind.[91]  He said the listening post was within minutes from Elder Street.  He said he had to make a number of enquiries with other members before the vehicle was apprehended and they had lost electronic surveillance.  He said that would have been around 7:00 to 7:30. 

20. Officer Sims agreed he had seen footage of the plaintiff on the videos from the surveillance of the shed.  Asked if the plaintiff had a walking stick, he could not recall.[92]  Officer Sims said Detective Dole advised him that a warrant was executed at 2 Hong Street coinciding with the plaintiff’s arrest.  Detective Beth Wilson had the drug search warrant for 2 Hong Street and Officer Sims contacted her to execute that warrant.  He confirmed he had been in radio contact with other officers and agreed a battery of a police portable radio was in the rear of the vehicle the plaintiff was driving, which he found out later was Officer Winton’s radio battery.  He said approximately 20 to 25 members were recalled to duty by him that day. 

21. Officer Sims’ further description of the arrest was that as he drove into 2 Hong Street, the plaintiff was lying on the ground and two officers were in the process of handcuffing him.  When he had turned around, parked his vehicle and arrived at the location, the plaintiff had been sat up by the officers and police communications were contacted.[93]  He agreed the arrest took a couple of minutes and that Officer Winton was cuffing the plaintiff. 

    1.15Discussion of Clinton Sims’ Evidence

22. Officer Sims’ evidence provides substantially more detail of the surveillance operation and the justification for arrest.  It supports the reasonableness of the belief that arresting police officers possessed that the investigation had been compromised and that they needed to act expeditiously to arrest the plaintiff for the charged offences and preserve evidence.  Very little of his evidence was challenged.  Although not present for the whole process of arrest, his evidence substantially supports the evidence of Officers Dole and Winton, particularly that the plaintiff was lying face down and that he recalled him complaining about the tightness of the flexi cuffs.  Although the plaintiff has taken the point that in oral evidence Officer Sims said he was present during the arrest, thus potentially showing inconsistency with Officers Dole and Winton, that evidence in proper context clearly refers to him arriving at the end of the physical arrest.  It is clear that he observed some of the process.

    1.16Michael Curtiss – Summary of Evidence

23. In July 2005, Michael Curtiss was a Constable in the Domestic Personal Violence Protection Unit of the Northern Territory Police.[94]  Prior to the plaintiff’s arrest he had been involved in “Operation Twilight”.  He did not know much about the plaintiff, other than he was suspected of importing large quantities of cannabis in the Northern Territory and selling it.  He was aware of the activities of his associates. 

24. On the night of his arrest, Officer Curtiss was in the observation post of 2 Hong Street with Officers Sims and Morgan.  He understood a surveillance device had been discovered and disabled.

25. After Officers Sims and Morgan left, he received a call from Officer Sims to go to Hong Street.  When he arrived the plaintiff was lying face down on the verge next to the maroon station wagon with his hands behind his back in handcuffs.  He saw Officers Dole and Winton who he understood had arrested the plaintiff.  He heard the plaintiff saying that the handcuffs were too tight.  He was on the ground at that time.  Officers Dole and Winton helped the plaintiff stand up to take the pressure off his hands.  General duties officers arrived a short time later.

1. The relevant principles governing extension of time applications are summarised by Thomas J in Northern Territory v O’Connor and Rapaic.[347] As those principles make clear, it is the plaintiff who must establish that the justice of the case requires an exercise of discretion in his favour. 

2. The plaintiff must establish that an extension of time would not result in significant prejudice to the defendant. The commencement of an action out of time is considered to be prima facie prejudicial to the plaintiff.  In this case, it is clear that the recollections of some witnesses have deteriorated, particularly James and Richard Doyle.  As indicated above, their evidence could not be properly tested, particularly with respect to Richard Doyle.  The diminished weight given to their evidence as a result of its deficiencies did not prejudice the defendant.  While potentially there was prejudice as a result of the deterioration of their memories, and being unable to properly test the evidence, those matters were dealt with by commonly used processes assessing the weight and reliability of the evidence. 

3. Although certain points in the Amended Statement of Claim,[348] relevant to the extension of time are not supported by any evidence, there are a number of relevant records available.  Although just outside of the limitation period, the plaintiff’s solicitor indicated to the Ombudsman’s Office that he would be commencing proceedings.  It may be inferred the plaintiff instructed his solicitor to issue proceedings, if not precisely within the two month period, then shortly after.  This was conveyed by the solicitor to the Ombudsman’s Office.  It is then unclear why the matter was delayed further. 

4. The defendant accepts proceedings No 42 of 2005 were commenced by the plaintiff by writ and summons in 2005, however the documents were not served upon the defendant until 19 March 2007. 

5. When served, the writ was supported by an affidavit of the plaintiff’s solicitor dated 16 March 2007.  The defendant was also served with that affidavit.  As the one year period permitted by the rules to effect service had expired, an application was made by the plaintiff to extend the validity of the writ.  The application was opposed and the Court refused to extend the validity of the writ.  Those proceedings naming the Northern Territory as the defendant were consequently dismissed on 21 March 2007. 

6. Although the plaintiff claims writ No 9 of 2009 (20920976) was filed on 22 June 2009 against Officer Dole, the defendant says it was not served in those proceedings.  The plaintiff bears the onus to prove service or that relevant notice was given to the defendant.  No evidence has been led to prove the defendant was served.

7. It is appreciated that a number of important considerations operate against granting the plaintiff the extension of time.  The legislative policy considerations operate against the plaintiff as the delay is extensive; there has been a deterioration of some evidence; and only a small part of the delay has been explained.

8. As indicated however, there has been significant cogent evidence produced on behalf of the defendant.  It is inferred this evidence has been available despite the length of the delay because of the earlier investigation and criminal proceedings against the plaintiff.  Some of the issues raised and evidence given in the plaintiff’s trial in 2006 were directly relevant to these proceedings as was material gathered in the original investigation.  Although it is extremely unusual, in this particular case the defendant was not actually prejudiced.  The substantial amount of evidence adduced on behalf of the defendant lost little of its value by virtue of the delay.  It appears this was because it had been largely preserved from earlier proceedings.

9. The plaintiff’s claim has been unsuccessful, however as already noted, he made some attempts at an earlier time to progress the claim.  Although unsuccessful, it is apparent he believes, and has for some time believed that he was injured when arrested by police.  It is accepted that a significant part of the delay has not been satisfactorily explained, however the plaintiff made attempts through solicitors to progress his claim at the outset. 

10. Although the plaintiff was not successful, on balance the interests of justice were best served in these unusual circumstances by a full hearing to finally determine the issues that have long been outstanding between the parties.

11. While the order extending time will be made for the reasons given, the residual discretion in s 44 (3) (b) of the Limitation Act is not relevant. The plaintiff sought to rely on the receipt of a report from Dr Frost in 2012 expressing an opinion that the arrest on 14 July 2005 exacerbated a previously diagnosed condition of depression and therefore was a fact material. The residual discretion in s 44 (3) (b) of the Act applies only to limitation periods provided by the Limitation Act.

12. Potentially this material might be regarded as a relevant factor to consider in the exercise of the discretion to extend the time within which to bring a police tort claim, however the position is by no means clear.  The receipt of Dr Frost’s report in 2012 does not explain the delay in commencing proceedings with respect to the physical injuries the plaintiff claimed were attributable to the arrest.

    Orders

    1. The plaintiff’s application for an extension of time is granted for the commencement of proceedings for relief until 8 March 2013 pursuant to s 44 of the Limitation Act.

    2.   The plaintiff’s claims are dismissed and I order judgment for the defendant.

    3.   Reasons for the decision are published.

    4.   I will hear the parties as to costs.

[1] Amended Statement of Claim [6]-[9].

[2] Further Amended Defence [2](a)(b).

[3] Further Amended Defence [6].

[4] Ibid.

[5] Johnson v Northern Territory of Australia [2014] NTSC 18.

[6] Amended Statement of Claim [14]-[23].

[7] Ibid [24]-[25].

[8] The summary in this part is drawn principally from the plaintiff’s Affidavit of 8 October 2013, Exhibit P1.

[9] Transcript 26 October 2015, at 57.

[10] Transcript 26 October 2015 at 59.

[11] Ibid.

[12] The 16 seconds refers to the alleged length of time of a video reconstruction, apparently made by the plaintiff but ruled inadmissible in these proceedings.

[13] Exhibit 4, Tender Documents, Tab 2 at 6.

[14] Transcript 26 October 2015 at 72-73.

[15] Transcript 26 October 2015 at 77.

[16] Ibid.

[17] Ibid at 66.

[18] Transcript 26 October 2015 at 67.

[19] Transcript 26 October 2015 at 79.

[20] Affidavit of Stuart Douglas Johnson, 8 October 2013, Exhibit P1 [44], annexure SDJ-10.

[21] Ibid [45], annexure SDJ-11.

[22] Ibid [47], annexure SDJ-12.

[23] Ibid [48], annexure SDJ-13.

[24] Letter of 21 August 2015, Exhibit 4, Tender Documents, Tab 7.

[25] Affidavit of Stuart Douglas Johnson, 8 October 2013, Exhibit P1 [50], annexure SDJ-15.

[26] Exhibit 4, Tender Documents, Tab 2.

[27] Exhibit 4, Tender Documents, at 3 and 6, from attendance on 12 September 2005.

[28] Exhibit 4; Tender Documents, Tab 2 at 1-3.

[29] Transcript, 26 October 2015 at 72.

[30] Exhibit 4; Tender Documents, Tab 2 at 6.

[31] Transcript, 26 October 2015 at 73.

[32] Transcript, 27 October 2015 at 154.

[33] Ibid.

[34] Transcript, 27 October 2015 at 155.

[35] Transcript, 27 October 2015 at 108, Complaint 2 was police for mishandling property, failure to properly record alleging $5000 and papers went missing during the execution of a warrant; Complaint 3 concerning the search of his home; Complaint 4 custody of handling property including failure of police to notify the whereabouts of his dogs; a pet turtle died of starvation; Complaint 5 inappropriate disclosure of information; Complaint 6 concerning police procedures, lack of authority to install listening devices at his home; Complaint 7, refusal to access legal advice in custody.

[36] Transcript, 26 October 2015 at 73.

[37] Exhibit 4, Tender Documents, Tab 2 at 12.

[38] Ibid Tab 2 at 15.

[39] Transcript, 26 October 2015 at 74.

[40] Exhibit 4, Tender Documents, Tab 1 at 306-307.

[41] Transcript, 26 October 2015 at 75.

[42] Exhibit 4, Tender Documents, Tab 1 at 51.

[43] Transcript, 27 October 2015 at 134-135.

[44] Exhibit 4, Tender Documents, Tab 1 at 3, [136].

[45] Transcript, 26 October 2015 at 67.

[46] Transcript, 30 October 2015 at 356.

[47] Transcript, 02 November 2015 at 435-437.

[48] This summary is drawn from the Affidavit of James Harvey Doyle, 18 December 2013, Exhibit P8.

[49] Affidavit of James Harvey Doyle, 18 December 2013, annexure JHD.

[50] Transcript 27 October 2015 at 174.

[51] Ibid at 178.

[52] Ibid at 179.

[53] Ibid at 175.

[54] Transcript, 27 October 2015 at 175.

[55] Ibid at 176.

[56] Transcript, 27 October 2015 at 177.

[57] Transcript, 27 October 2015 at 184-185.

[58] Transcript, 27 October 2015 at 186, 188-189 and 192.

[59] Affidavit of Richard Harvey Doyle, 18 December 2013, Exhibit P9.

[60] Transcript, 27 October 2015 at 186.

[61] Ibid

[62] Transcript, 27 October 2015 at 186.

[63] Exhibit D22 at 728-729.

[64] Affidavit of Martin John Dole, 2 October 2015, Exhibit D47.

[65] Ibid at [7].

[66] Affidavit of Martin John Dole, 2 October 2015.

[67] All documents relevant to those matters are annexed to the Affidavit of Martin John Dole, 2 October 2015, Exhibit D47.

[68] Affidavit of Martin John Dole, 2 October 2015, annexure MJD-10 at T208.

[69] Transcript, 4 November 2015 at 486-488.

[70] Transcript, 4 November 2015 at 490 - 491.

[71] Affidavit of Martin John Dole, 2 October 2015, annexure MJD-10 at T209.

[72] Transcript, 4 November 2015 at 492.

[73] Transcript, 4 November 2015 at 504.

[74] Ibid.

[75] Ibid at 505.

[76] Ibid.

[77] This summary is drawn primarily from the Affidavit of Peter Winton, 30 September 2015, Exhibit D30.

[78] Transcript, 30 October 2015 at 328.

[79] Ibid at 334.

[80] Ibid at 335.

[81] Ibid at 336.

[82] Ibid at 337.

[83] Transcript, 30 October 2015 at 339.

[84] Ibid at 341.

[85] Ibid at 343.

[86] Ibid at 345.

[87] Transcript, 30 October 2015 at 356.

[88] Ibid at 355-356.

[89] Affidavit of Clinton Thomas Sims, 19 October 2015, Exhibit D44.

[90] Affidavit of Clinton Thomas Sims, 2 November 2015, Exhibit D45.

[91] Transcript, 4 November 2015 at 465.

[92] Ibid at 467.

[93] Transcript, 4 November 2015 at 473.

[94] Affidavit of Michael Paul Curtiss, 29 September 2015.

[95] Transcript, 4 November 2015 at 514.

[96] Transcript, 4 November 2015 at 515.

[97] Ibid at 514.

[98] Ibid at 519.

[99] Affidavit of Theo Karaminidis, 28 September 2015, Exhibit D28; Affidavit of Justin Anthony Firth, 29 September 2015, Exhibit D49.

[100] Affidavit of Stuart Douglas Johnson, 8 October 2013, Exhibit P1 at [44].

[101] Ibid at [47], annexure SDJ-12.

[102] Ibid [47]-[48], annexure SDJ-13.

[103] Exhibit 4; Tender Documents, Tab 5.

[104] Transcript, 26 October 2015 at 80.

[105] Exhibit 4; Tender Documents, Tab 4.

[106] Transcript, 26 October 2015 at 80-85.

[107] Transcript, 26 October 2015 at 83.

[108] Affidavit of Lynette Mary Hilton, 1 October 2015, Exhibit D25.

[109] Exhibit 4, Tender Documents, Tabs 3-4.

[110] All records contained in Exhibit 4, Tender Documents, Tabs 3-5.

[111] Transcript of Record of Interview, Affidavit of Martin John Dole, 2 October 2015, Annexure   MJD-2.

[112] Affidavit of Martin John Dole, 2 October 2015, D47, Annexure MJD-2.

[113] Affidavit of Clinton Thomas Sims, 19 October 2015, D44.

[114] Exhibit 4, Tender Documents at 378 and 179.

[115] Transcript, 4 November 2015 at 496.

[116] Affidavit of Martin John Dole, 2 October 2015, Exhibit D47 Annexure MJD-2.

[117] Ibid annexure MJD-3.

[118] Ibid annexure MJD-4.

[119] Transcript, 4 November 2015 at 498.

[120] Transcript annexed and marked “CS4” to the Affidavit of Clinton Thomas Sims, 19 October 2015.

[121] Affidavit of Stuart Douglas Johnson, 8 October 2013, Exhibit P1, annexure SDJ-10.

[122] Affidavit of Rita Helen Rose, 11 October 2013, Exhibit P10, annexure RHR-1.

[123] Exhibit 4, Tender Documents, Tab 1.

[124] Transcript, 28 October 2015 at 205-213.

[125] Ibid at 207.

[126] Exhibit D45.

[127] Transcript, 28 October 2015 at 205-206.

[128] Affidavit of Rita Helen Rose, 11 October 2013 at [10].

[129] (1959) 101 CLR 298.

[130] Transcript, 28 October 2015 at 213-215.

[131] Affidavits of Charles Robert Farmer, 24 September 2015 and 1 October 2015.

[132] Affidavit of Charles Robert Farmer, 1 October 2015, annexure CRF-I1.

[133] Ibid exhibit D27.

[134] Ibid exhibit D26.

[135] Affidavit of Andrew James Barram, 18 September 2015, Exhibit D48.

[136] Ibid exhibit D48, annexure AJB-1.

[137] Ibid exhibit D48, annexure AJB-2 at [5].

[138] Affidavit of Andrew James Barram, 18 September 2015, Exhibit D48 at [16]-[19], annexure AJB-3.

[139] Affidavit of Andrew James Barram, 18 September 2015, Exhibit D48, annexure AJB-3.

[140] Amended Statement of Claim at [8].

[141] Amended Statement of Claim at [10].

[142] Further particulars of this pleaded injury are set out in the Amended Statement of Claim (i-viii).

[143] Affidavit of Stuart Douglas Johnson, 8 October 2013, Exhibit P1 at [4].

[144] Ibid at [38]-[39].

[145] Affidavit of Stuart Douglas Johnson, 8 October 2013, Exhibit P1 at [49], annexure SDJ-12.

[146] Ibid [49].

[147] Affidavit of Stuart Douglas Johnson, 8 October 2013, Exhibit P1 at [50], annexure SDJ-15.

[148] Ibid [51], annexure SDJ-17.

[149] Ibid [54], annexure SDJ-20.

[150] Ibid annexure SDJ-21.

[151] Affidavit of Stuart Douglas Johnson, 8 October 2013, Exhibit P1 [55], annexure SDJ-22.

[152] Ibid [56], annexure SDJ-23.

[153] Ibid annexure SDJ-24.

[154] Affidavit of Stuart Douglas Johnson, 8 October 2013, exhibit P1 at [58], annexure SDJ-26.

[155] Affidavit of Stuart Douglas Johnson, 8 October 2013 at [41]-[42], annexure SDJ-5, annexureSDJ-6; Transcript 26 October 2015 at 54.

[156] Transcript, 26 October 2015 at 55.

[157] Exhibit 4, Tender Documents, Tab 1 at 47.

[158] Ibid Tab 2 at 37.

[159] Transcript, 27 October 2015 at 116.

[160] Exhibit 4, Tender Documents, Tab 1 at 38.

[161] Transcript 27, October 2015 at 119.

[162] Ibid at 120.

[163] Exhibit 4, Tender Documents, Tab 1 at 33.

[164] Transcript, 27 October 2015 at 121.

[165] Exhibit 4, Tender Documents, Tab 1 at 27.

[166] Exhibit 4, Tender Documents, Tab 1 at 352.

[167] Ibid at 215.

[168] Transcript, 27 October 2015 at 124-125.

[169] Exhibit 4, Tender Documents, Tab 1 at 221.

[170] Transcript, 27 October 2015 at 128; Exhibit 4, Tender Documents, Tab 1 at 222.

[171] Affidavit, Stuart Douglas Johnson, 8 October 2013, Exhibit P1 at [42], annexure SDJ-6.

[172] Transcript 27 October 2015 at 130.

[173] Compare Affidavit, Stuart Douglas Johnson, 8 October 2013 at [42]; SDJ-6 with Exhibit D5.

[174] Exhibit 4; Tender Documents at 179; Transcript 26 October 2015 at 69-70.  Discussed also in the context of Rita Rose’s evidence summarised below at [131]-[137].

[175] Exhibit 4; Tender Documents, Tab 1 at 20.

[176] Exhibit 4, Tender Documents, Tab 1 at 20.

[177] Transcript, 26 October 2015 at 91; Exhibit 4, Tender Documents, Tab 1 at 21.

[178] Exhibit 4, Tender Documents, Tab 1 at 322.

[179] Transcript, 26 October 2015 at 93.

[180] Exhibit 4, Tender Documents, Tab 1 at 359.

[181] Exhibit 4, Tender Documents, Tab 1 at 389.

[182] Transcript, 26 October 2015 at 96.

[183] See in particular Transcript 26 October 2015 at 97.

[184] See for example, Transcript, 26 October 2015 at 117.

[185] Exhibit 4, Tender Documents, Tab 5.

[186] Exhibit P35.

[187] Exhibit P35 at 2.

[188] Exhibit P35 at 2.

[189] Exhibit P35 at 4.

[190] Transcript, 2 November 2015 at 369-370.

[191] Transcript, 2 November 2015 at 371.

[192] Ibid.

[193] Exhibit 4, Tender Documents, Tab 7 at 23.

[194] Transcript, 2 November 2015 at 374.

[195] Exhibit 4, Tender Documents, Tab 7 at 7.

[196] Transcript, 2 November 2015 at 374.

[197] Exhibit 4, Tender Documents, Tab 7 at 78.

[198] Transcript, 2 November 2015 at 375.

[199] Exhibit 4, Tender Documents, Tab 7 at 76.

[200] Transcript, 2 November 2015 at 376.

[201] Transcript, 2 November 2015 at 376.

[202] Ibid at 376-377.

[203] Ibid at 377.

[204] Exhibit 4, Tender Documents, Tab 7 at 6.

[205] Transcript, 2 November 2015 at 377-378.

[206] Exhibit 4, Tender Documents, Tab 7 at 75.

[207] Transcript, 2 November 2015 at 379.

[208] Exhibit 4, Tender Documents, Tab 7 at 61-62.

[209] Transcript, 2 November 2015 at 380.

[210] Exhibit 4, Tender Documents, Tab 8 at 137.

[211] Transcript, 2 November 2015 at 380.

[212] Ibid at 380-381.

[213] Exhibit 4, Tender Documents, Tab 7 at 5.

[214] Ibid Tab 7 at 6.

[215] Transcript, 2 November 2015 at 281.

[216] Ibid at 383.

[217] Exhibit P35.

[218] Transcript, 2 November 2015 at 385.

[219] Ibid at 385-386.

[220] Transcript, 2 November 2015 at 386.

[221] Exhibit D5.

[222] Transcript, 2 November 2015 at 386.

[223] Exhibit 4, Tender Documents, Tab 1 at 223; Transcript 2 November 2015 at 387-388.

[224] Exhibit 4, Tender Documents, Tab 1 at 25.

[225] Transcript, 2 November 2015 at 389.

[226] Exhibit 4, Tender Documents, Tab 1 at 204-205.

[227] Transcript, 2 November 2015 at 389.

[228] Exhibit 4, Tender Documents, Tab 8 at 107; Transcript 2 November 2015 at 390.

[229] Transcript, 2 November 2015 at 391.

[230] Exhibit 4, Tender Documents, Tab 1 at 130; Transcript 2 November 2015 at 391.

[231] Exhibit 4, Tender Documents, Tab7 at 81.

[232] Exhibit 4, Tender Documents, Tab 1 at 332.

[233] Exhibit 4, Tender Documents, Tab 7 at 23.

[234] Transcript, 2 November 2015 at 394.

[235] Ibid at 394.

[236] Ibid at 448.

[237] Affidavit of Bernard Hickey, 6 August 2015, Exhibit P37, annexure BH; Report of 27 October 2015 at 39.

[238] Transcript, 2 November 2015 at 410.

[239] Ibid at 410.

[240] Transcript, 2 November 2015 at 412.

[241] Ibid at 413.

[242] Ibid at 414-415.

[243] Transcript, 2 November 2015 at 418.

[244] Ibid at 412.

[245] The full criteria A is set out in Exhibit P39.

[246] Transcript, 2 November 2015 at 421.

[247] The full criteria B is set out in Exhibit P39.

[248] Transcript, 2 November 2015 at 422.

[249] The full criteria C is set out in Exhibit P39.

[250] The full criteria D (2) (a) is set out in Exhibit P39.

[251] Transcript, 2 November 2015 at 426.

[252] Ibid at 427.

[253] Transcript, 27 October 2015 at 144.

[254] Transcript, 27 October 2015 at 145; Exhibit 4, Tender Documents, Tab 1 at 348-349.

[255] Affidavit of Stuart Douglas Johnson, 18 September 2015, Exhibit P3, SDJ-27, SDJ-28.

[256] Ibid annexure SDJ-29.

[257] Ibid annexure SDJ-30, SDJ-31.

[258] Transcript, 27 October 2015 at 120.

[259] Ibid at 160.

[260] Affidavit of Stuart Douglas Johnson, 8 October 2013 at [4]-[6].

[261] Transcript, 27 October 2015 at 143-144.

[262] Ibid at 158,160.

[263] Ibid at 64.

[264] Transcript, 27 October 2015 at 159-160.

[265] Affidavit of Damien John Armstrong, 16 September 2015, Exhibit P12.

[266] Transcript, 28 October 2015 at 219-220.

[267] Ibid at 223.

[268] Ibid.

[269] Transcript, 28 October 2015 at 225.

[270] Affidavit of Alan Geoffrey Thorpe, 14 December 2015, Exhibit P13.

[271] Transcript, 28 October 2015 at 228.

[272] Ibid at 232-233.

[273] Ibid.

[274] Transcript, 28 October 2015 at 231.

[275] Affidavit of Daniel Pearce Warren, 15 December 2015, Exhibit P14.

[276] Transcript, 28 October 2015 at 230.

[277] Ibid at 244.

[278] Affidavit of Peter Errol Goodwin, 12 September 2013, Exhibit P15.

[280] Affidavit of John Lawrence Trull, 15 September 2015, Exhibit P19.

[281] Transcript, 29 October 2015 at 268.

[282] Affidavit of Graeme Beirne Dermody, September 2015, Exhibit P16.

[283] Affidavit of Raymond Alexander Hatchard, September 2015, Exhibit P17.

[284] Affidavit of David John Pierson, September 2015, Exhibit P20.

[285] Transcript, 29 October 2015 at 272.

[286] Ibid at 270, 272-273.

[287] Affidavit of Glenn Anthony Schilds, 16 September 2015, Exhibit P29.

[288] Affidavit of Danny John Kunoth, September 2015, Exhibit P21.

[289] Transcript, 27 October 2015 at 275 - 276.

[290] Zaravinos v New South Wales (2004) 62 NSWLR 58 at [2].

[291] C Goodhand and P O’Brien, Intentional Tort Litigation in Australia, Federation Press 2015 at 9; Phillips v R (1971) 45 ALJR 467; Hall v Fonceca [1983] WAR 309;White v State of South Australia (2010) 106 SASR 521 at 582; noting recklessness maybe suffice, however negligence will not satisfy at common law: Macpherson v Brown (1975) 12 SASR 184.

[292] Sappideen C and Vines P, Fleming’s The Law of Torts, 10^th Edition Thomson Reuters, 2011 at 31.

[293]Sappideen C and Vines P, Fleming’s The Law of Torts, 10^th Edition Thomson Reuters, 2011 at 31.

[294] Halsbury’s Laws of Australia V26, [415] – [345]; C Goodhand and P O’Brien, Intentional Tort Litigation in Australia, at 5; Slaveski v Victoria (2010)VSC 441 at [241], per Kyrou J

[295] Amended Statement of Claim [8] (c) (b).

[296] Orders of Master Luppino, 13 May 2015.

[297] C Goodhand and P O’Brien, Intentional Tort Litigation in Australia at 39-41.

[298] Amended Statement of Claim at 6.

[299] (2012) 31 NTLR 150 at [44].

[300] Cotchilli (unreported, Mildren J, 23 October 2007); Wilson (unreported, Kearney J, 20 November 1998); Grimley (1994) 121 FLR 236.

[301] Slaveski v Victoria [2010] VSC 441 at [126] per Kyrou J, citing R v Turner [1962] VR 30 at 36 per O’Bryan, Dean and Hudson JJ.

[302] Ibid n 301 at [127], citing R v Turner [1962] VR 30 at [36].

[303] Slaveski v Victoria [2010] VSC 441 at [130], (some footnotes omitted).

[304] [2008] VSC 596.

[305] [2001] NSWCA 35.

[306] Ibid.

[307] (1980) 43 FLR 112.

[308] (1980) 43 FLR 112, 113.

[309] Slaveski v Victoria [2010] VSC 441, per Kyrou J.

[310] Affidavit of Peter Winton, 30 September 2015, Exhibit D30 at [14].

[311] Slaveski v Victoria [2010] VSC 441 at [131] per Kyrou J.

[312] (2000) 2 VR 246.

[313] (2000) 2 VR 246, 267 at [44].

[314] (1853) 6 Cox CC 329.

[315] (1991) 28 FCR 128.

[316] For example, Damien Armstrong saw the plaintiff “more than six months up to a year after May 2005”; Peter Goodwin, saw the plaintiff “around January or February 2006”.

[317] Luntz, Assessment of Damages for Personal Injury and Death, Butterworths Fourth Edition at 149 citing, with other authorities, March v E & MH Stramore Pty Ltd (1991) 171 CLR 506.

[318] Ibid.

[319] (1991) 171 CLR 506.

[320] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 at [41].

[321] March v E & MH Stramore Pty Ltd (1991) 171 CLR 506, per Mason CJ at 515.

[322] St George Club Ltd v Hines (1961) 35 ALJR 106 at 107.

[323] Ibid

[324] Consistent with Watts v Rake (1960) 108 CLR 158.

[325] Luntz, Assessment of Damages for Personal Injury and Death at [2.6.4].

[326] (2008) 102 SASR 534 at [128], [130].

[327] Amaca v Ellis (2010) 240 CLR 11 at [51]-[62].

[328] Exhibit D5.

[329] Affidavit of Stuart Douglas Johnson, 20 October 2015.

[330] Sections 25-27 of the Personal Injuries (Liabilities & Damages) Act.

[331] Above at 6-6.11.

[332] Amended Statement of Claim at [12] (i).

[333] Published November 2015.

[334] Section 21 of the Personal Injuries (Liabilities & Damages) Act.

[335] Majindi v Northern Territory of Australia & Ors (2012) 31 NTLR 150 at [44] per Mildren J.

[336] Johnson v Northern Territory of Australia [2014] NTSC 18.

[337] Affidavit of Stuart Douglas Johnson, 17 January 2014, Exhibit P2.

[338] Exhibit 4, Tender Documents, Tab 2 at 9.

[339] Ibid.

[340] Ibid Tab 2 at 12.

[341] Ibid.

[342] Exhibit 4, Tender Documents, Tab 2 at 15.

[343] Ibid Tab 2 at 16.

[344] Affidavit of Stuart Douglas Johnson, 17 January 2014, annexure SDJ-1.

[345] Ibid annexure SDJ-2.

[346] Exhibit 4, Tender Documents, Tab 2 at 12.

[347] [2003] NTSC 56 at [25]-[26].

[348] Amended Statement of Claim at [15]-[25].