Johnson v The State of South Australia - [2019] SADC 35

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
JOHNSON v THE STATE OF SOUTH AUSTRALIA
[2019] SADC 35
Judgment of His Honour Judge Tilmouth
27 March 2019
TORTS - TRESPASS - TRESPASS TO THE PERSON - ACTION FOR DAMAGES
The plaintiff Mr Johnson, was lawfully pulled over by traffic police for a random alcohol and drug test which he submitted to without incident. The police officer twice asked him to state his full correct name despite the fact that Mr Johnson gave him a card containing his correct name and address, barr for his middle name. The officer insisted on Mr Johnson providing his ‘full correct name and address’. He then immediately demanded for Mr Johnson ‘get out of the car’ and again insisted he was ‘required by law’ to state his full name and address as well as provide identification. Upon Mr Johnson protesting he had 24 hours to produce a licence and that this was ‘outrageous’, he was threatened twice with capsicum spray. After other officers arrived to assist in his arrest, Mr Johnson was forceably removed from his vehicle, handcuffed, placed in a police cage vehicle and taken to the Whyalla Police Station. In the meantime his vehicle was defected, for amongst other things, a bald front tyre. He was charged with ‘engaging in conduct resulting in a contravention of a direction’ given by the police officer contrary to s 40V of the Road Traffic Act and resisting arrest. Both charges were subsequently dropped.
Mr Johnson brought the within proceedings claiming damages for wrongful arrest, false imprisonment and assault.
Held 1: As Mr Johnson substantially complied with s 40V of the Road Traffic Act and the omission of his middle name was immaterial, as the police officer had no basis for suggesting the information provided by him was false or misleading, and as he was not required to state his personal particulars orally, the decision to arrest was unreasonable. Consequently there was no justification for use of force to arrest him.
2. The threats to capsicum spray constituted an assault.
3. Mr Johnson was falsely imprisoned from the point of his arrest until the time he refused to apply for bail, around three hours later.
4. None of the remaining alleged causes of action are proven or made out.
5. Mr Johnson is entitled to damages under the following heads:
(a) General damages of $10,000 and aggravated damages of $6,000, because of the highhanded nature of the actions of police in blatant disregard of Mr Johnson’s liberty and rights, for the humiliating and degrading nature of his arrest by handcuffing him and placing him in a caged vehicle, and the threats to capsicum spray.
(b) Exemplary damages of $8,000 as a mark of disapprobation and censure, on account of the unauthorised threat to capsicum spray, the complete disregard of the limits of the power of arrest and the fact that the situation was effectively capable of resolution by report or summons.
Road Traffic Act 1961 (SA) s 40H, s 40V(1), s 40V(1)(a)(b)(c), s 40V(2), s 40V(3), s 40V(4), s 42, s 47E, s 116(1)(b), s 145, s 145(1a), s 145(5)(a), s 145(5d), s 145(5h), s 145(5g); Summary Offences Act 1953 (SA) s 6(2) s 74AB(3), s 75, s 78(1), s 78(2); Roberts v Brebner [1963] SASR 40; Samuel v Broad (1974) 8 SASR 576; Police v Peek (2007) 97 SASR 1; DPP v Hamilton (2011) 33 VR 505; R v Dam & Nguyen (2015) 123 SASR 511; R v Prinse (1998) 196 LSJS 267; R v Hooper (1995) 64 SASR 480; Motor Vehicles Act 1959 (SA) s 96(1)(a) and (b); R v Stafford (1976) 13 SASR 392; R v Nguyen (2013) 117 SASR 432; Road Safety Act 1986 (Vic) s 59(1), s 59(5); Walker v West (1981) 2 NSWLR 570; R v McKay [1957] VR 560; R v Turner [1962] VR 30; Bail Act 1985 (SA) s 8(1), s 13(3); R v Bennett & Clark (1986) 44 SASR 164; R v O'Neill [1996] 2 Qd R 326; R v Young [1998] 1 VR 402; R v Pennant [1998] 2 VR 453; R v Edwards [1998] 2 VR 354; R v O'Halloran (2000) 182 ALR 431; R v Carroll (2002) 213 CLR 635; R v Gilham (2007) 73 NSWLR 308; R v P, NJ (No 2) (2007) 99 SASR 1; R v McGee (2008) 253 LSJS 289; R v Hi Ngo [2010] 1 Qd R 193; R v Joud, Benbrika, Raad & Sayadi (2011) 32 VR 400; R v Dalton (2011) 111 SASR 170; R v Hughes (2015) 93 NSWLR 474; Lamb v Cotogno (1987) 164 CLR 1; White v South Australia (2010) 106 SASR 521; New South Wales v Riley (2003) 57 NSWLR 496; Macpherson v Brown (1976) 12 SASR 184; Lindley v Rutter [1981] 1 QB 128; R v Phillips (1971) 45 ALJR 467; Walker v West [1981] 2 NSWLR 570; Feldman v Buck [1966] SASR 236; Archontoulis v Samuels (1981) 91 LSJS 370; R v Santos & Carrion (1987) 61 ALJR 668; Hunter v Chief Commissioner [1996] 2 Qd R 326; Cameron v Cole (1944) 68 CLR 571; Posner v Collector for Inter-State Destitute Persons (Vic) (1946) 74 CLR 461; Jackson v Sterling Industries Ltd (1987) 162 CLR 612; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448; Uren v John Fairfax & Sons Ltd [1968] SASR 142; New South Wales v Ibbett (2006) 229 CLR 638; Johnstone v Stewart [1968] SASR 142; New South Wales v Abed (2014) 246 A Crim R 549; State of New South Wales v Landini [2010] NSWCA 157; Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311; State of New South Wales v Quirk [2012] NSWCA 216; Adams v Kennedy (2000) 49 NSWLR 78; Cunningham v Traynor [2016] WADC 168; The State of Western Australia v Cunningham (No 3) [2018] WASCA 207; Zaravinos v State of New South Wales (2004) 62 NSWLR 58; Thompson v Commissioner of Police of the Metropolis [1998] QB 498; Watson v Marshall (1971) 124 CLR 621; State of New South Wales v Coleman [2000] NSWCA 183; Coyle v State of New South Wales [2006] NSWCA 95; Eaves v Donnelly & State of Queensland [2011] QDC 207; Coleman v Watson [2007] QSC 343; Majindi v Northern Territory of Australia (2012) 260 FLR 459; Randell v New South Wales [2013] NSWDC 277; Smith v New South Wales [2016] NSWDC 55; Raad v State of New South Wales [2017] NSWDC 63; Costello v New South Wales [2017] NSWDC 152; Hemelaar v Walsh [2017] QDC 151; Lule v State of New South Wales [2018] NSWCA 125; Attalla v State of NSW [2018] NSWDC 190; Gibb-Smith v State of New South Wales [2018] NSWDC 204; Police Complaints and Discipline Act 2016 (SA) s 44, s 44(d), referred to.
Samuels v Hall [1969] SASR 296; George v Rockett (1990) 170 CLR 104; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Hunter v Chief Commissioner [1982] AC 529; Rogers v The Queen (1994) 181 CLR 251; Gray v Motor Accident Insurance Commission (1998) 196 CLR 1; Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71; Ruddock v Taylor (2005) 222 CLR 612; A v State of New South Wales (2007) 230 CLR 500; Hillier v Lucas (2000) 81 SASR 451; New South Wales v Ibbett [2005] NSWCA 445; Blatch v Archer (1774) 1 Cowp 63, applied.
Cavanagh v Galkowski (1979) 20 SASR 322, distinguished.
Johnson v Police (2017) 80 MVR 342; Trobridge v Hardy (1955) 94 CLR 147; R v Eeet [1983] Crim LR 806; Director of Public Prosecutions (DPP) v Kaba (2014) 44 VR 526; Johnson v Police [2017] SASC 87, discussed.

JOHNSON v THE STATE OF SOUTH AUSTRALIA
[2019] SADC 35
Contents
The action
Summary of respective cases
Events following arrest on 14 July 2014
Court proceedings
Magistrates Court
Supreme Court
Later Magistrates Court proceedings
Background incidents
Arrest on 14 July 2014
The defect notice
The examination of the vehicle
The direction to provide full name and address
The power of arrest
Was Mr Johnson physically assaulted?
More force than reasonably necessary to effect arrest?
False imprisonment
Prosecution for 14 July 2014 charges
Time in police custody
The events of the following day
Arrest on 2 August 2014
Malicious prosecution of 2 August 2014 charges?
Arrests on warrants for non‑appearance and non‑compliance
Issues of damages
General damages
Economic loss
Special damages
General principles
Case comparisons
General damages
Aggravated damages
Exemplary damages
Conclusion and Orders
Attachment ‘A’
The action

Long-time Whyalla resident Trevor Johnson brings this action claiming damages for false arrest, false imprisonment and assault and battery alleged at the hands of serving officers of the South Australia Police (SAPOL) on two separate occasions. The first occurred on 14 July 2014 and the second on 2 August 2014, both in Whyalla. The defence is that in arresting Mr Johnson the police officers involved acted lawfully. There is a denial of any resultant personal injury, or other consequence giving rise to any claim in damages. The State of South Australia admits vicarious responsibility for the actions of the police officers concerned.[1]
[1] TB19 Second Defence.
Summary of respective cases
There is no doubting that at about 10.30 am on Monday 14 July 2014, Mr Johnson was stopped for random breath analysis whilst driving a friend’s motor vehicle, or that soon afterwards the vehicle was defected. His contention that this vehicle was wrongly defected lies at the very core of this case. At this time Mr Johnson clearly complied with a request to undertake alcohol and drug screening. Both returned negative results. However he refused to identify himself verbally when asked to do so, but he did hand Senior Constable Noel Paterson a piece of paper containing his name and address.
As a result of the refusal to verbally state his name and address, SC Paterson formed the view there was reasonable cause to arrest. He attempted to do so by placing his hand on his shirt and by advising Mr Johnson that he was under arrest. The second core pillar of Mr Johnson’s case is that he fully complied with the request to provide his correct name and address and accordingly there was no lawful basis justifying his arrest on this occasion.
Mr Johnson accepts that he was pulled over at the Random Breath Testing Station, that he handed over the piece of paper containing his name and address, that he complied with a request to undertake the alcohol and drug screening and that he was asked to identify himself verbally, but refused. So far as leaving the vehicle is concerned, he maintains that threats to capsicum spray him and remove him from the vehicle, constituted separate assaults. He further claims there was an unlawful search of the vehicle, there being no reasonable or probable cause to suspect any offence was committed so as to provide the basis for a lawful search.
Mr Johnson adamantly denies the alleged defects. He consequently claims the Defect Notice was issued invalidly and any defects that were present were not ‘major’ defects. Further still, he complains he was wrongly sent to the Port Augusta Prison for five weeks. In his reply he asserts:[2]
5. My life has been turned upside down due to health and the employment opportunities now denied from continuous court appearances and no signs of corrections before my soon retirement age.
[2] TB, 28.
He seeks compensatory damages as well as aggravated and exemplary damages. In addition, he seeks general damages on the basis that he was unable to work, causing him loss of income for constant pain and headaches with associated stress from the various court proceedings, particularly as he is now ‘nearing retirement age … ongoing police assaults [are] taking their toll on my body’.
The case for the defendants is that a struggle ensued once SC Paterson attempted to remove Mr Johnson from the vehicle and threatened him with capsicum spray if he did not comply with the direction to do so. As SC Paterson requested backup, Senior Constable Marshall and Senior Sergeant Ball attended, removed him from the vehicle and then handcuffed and arrested him.
In the meantime, SC Paterson inspected the vehicle. He considered the left front tyre was level with ‘the tread wear bars’, an LPG gas compliance plate expired on 15 February 2000, tap covers on the gas tank in the boot were missing, the boot gas struts were not operational and there were several oil leaks. It was on those several bases that SC Paterson defected the vehicle at about 11.00 am on 14 July 2014 and affixed a defect sticker to the windscreen.[3]
[3] TB1, 70.
Events following arrest on 14 July 2014
Mr Johnson was taken to the Whyalla Police Station where he was charged with a contravention of a direction to provide personal details by ‘engaging in conduct resulting in a contravention of the direction’ contrary to s 40V(4)(b) or s 40V(3) and (4) of the Road Traffic Act 1961 (SA). He was further charged with resisting a police officer in the execution of his duty in contravention of s 6(2) of the Summary Offences Act 1953 (SA).[4]
[4] TB1, pp 122.
Mr Johnson refused to apply for police bail.[5] Bail was in the event granted shortly before 4.00 pm that day by the Whyalla Magistrates Court. He was released from custody just after 4.20 pm on 14 July 2014,[6] and was remanded to appear again on 19 August 2014 when the charges were withdrawn.[7]
[5]    TB1, pp 74.
[6]    TB1, 110.
[7]    Exhibit D5, TB 1, pp 95-107, T73.3-.12.
Police records indicate Mr Johnson arrived under arrest at the Whyalla Police Station at 11.28 am and that his wallet contained a current driver’s licence.[8] This Station was approximately a 6 - 7 km or 10-minute drive from the scene.[9] It might be observed at this point that s 13(e) of the Bail Act 1985 (SA) required Mr Johnson to be brought before a bail authority ‘as soon as reasonably practical following arrest, in any case, not later than 4.00 pm the next working day …’. This requirement is examined in some detail later.
Court proceedings
[8] TB1, 95, 101 and 106.
[9] T70.33-.37, T149.23-.28.
Magistrates Court
The charges of driving contrary to a Defect Notice and resisting police founded on the events of 14 July 2014 did not proceed to trial. This change in the course of events relating to the prosecution of those charges is detailed later. Subsequently Mr Johnson was charged with driving contrary to the terms of the defect notice under s 145 of the Road Traffic Act, failing to stop his vehicle when directed to do so contrary to s 40H(5) thereof, one count of resisting arrest and one count of hindering police contrary to s 6(2) of the Summary Offences Act. These are the offences alleged to have occurred on 2 August 2014 in Whyalla.[10] Following a review of the charges the prosecutor recommended discontinuance of the hindering police count, considering that offence was ‘not made out’.[11] The lower court records show no evidence was tendered and that charge was withdrawn in open court on 16 June 2015.[12]
[10] TB2, 162-163.
[11] TB2, 157-159.
[12] TB1, 7; TB2, 158.
The remaining charges founded on the events of 2 August 2014 were heard and determined in the Whyalla Magistrates Court on 6 October 2016. As to the issue of the supposedly defective tyre, the Magistrate remained unsatisfied that it was as worn down as alleged:[13]
[10]    It can be seen that a police officer has powers to inspect the vehicle in two circumstances; one where a vehicle in fact has deficiencies, and two where the police officer suspects on reasonable grounds that the vehicle does have deficiencies.
[11]    To my mind the evidence of Senior Constable Paterson that he had a reasonable suspicion that the vehicle had deficiencies was somewhat unsatisfactory. There was a suggestion, and I think only a suggestion, that the police officer noticed that the front left-hand tyre on Mr Johnson’s car was worn down to the wear bars. Whether that is the case or not was never affirmatively established. The officer took photographs of other problems or deficiencies that he detected on the vehicle, but not of the tyre.
[12]    He claims that the worn front left tyre gave him a reasonable suspicion that there were problems with the rest of the car.
[13]    The car had done a number of kilometres, being a former taxi, but at least from the photographs as far as can be seen, seemed to be in a reasonable condition. I am not entirely satisfied beyond reasonable doubt that Senior Constable Paterson did have a reasonable suspicion that the vehicle had deficiencies.
[13] Police v Johnson, MCWHY-14-1246, [10]-[13], TB2, 282.
With respect to the gas cylinder mounts, the Magistrate reasoned:[14]
[14]    However, the second basis for inspecting the vehicle is that the vehicle in fact has deficiencies. The defect notice issued refers to a broken boot strut. Deficiencies are set out in Exhibit P2. There’s no doubt from photograph 5 that the bottom mount for the left-hand boot strut of the car has been corroded away. I pause to note that that photograph gives some indication of the condition of the rest of the car, which as I have already observed does not look too bad.
[15]    Whilst I do not accept that the broken bottom mount would affect the performance of the vehicle as driven on the road, or that it would affect its safety as it might affect other road users, it is clearly a lack of maintenance and probably a breach of vehicle standards.
[16]    The fact is that the boot, when operated with only one active mount, would require care to open and close. A young person might not realise that the boot was not adequately supported when open, although it might have been, or perhaps not adequately supported when partially open and might suffer some injury to arm or finger.
[17]    The second thing of some significance noted by the senior constable was that compliance plate was out of date. The compliance plate was dated 15 February 2000 in the State of Victoria and hadn’t been updated. It transpired there had been a subsequent inspection of the gas cylinder, as the police officer subsequently found after issuing the defect notice.
[18] There’s no doubt that the gas plate being out of date is a deficiency within the meaning of s.145 and at the time of the issue of the notice there is no doubt that the police officer reasonably believed that to be the case.
[19]    In my view that is a matter that could have been deleted from the notice at a later time and was not. The failure to have the item changed is part of the body of evidence that rather suggests that Mr Johnson received strict treatment from police at the time the notice was issued and possibly subsequently. However, that is not a matter for me to comment much further on, except to say that Mr Johnson is aggrieved and I think to some extent that possibly motivated his defence of the current proceedings.
[14] Ibid, [14]-[19], TB2, 282-283.
His Honour found Mr Johnson guilty of resisting a police officer in the execution of his duty, in that once advised he was under arrest and required to leave the car, he ‘refused to do so for a period of time’, and as both officers unsuccessfully ‘attempted to remove him’. The Magistrate did acknowledge Mr Johnson eventually agreed to voluntarily leave the vehicle.[15]
[15] Ibid [43].
The Magistrate found Mr Johnson guilty of the two remaining charges on 16 October 2016, and not guilty of the failing to stop charge.[16] In doing so, he found the Defect Notice issued by SC Paterson on 14 July 2014 was lawfully issued and remained valid. He convicted Mr Johnson of those charges and sentenced him to serve 28 hours of Community Service to be completed within six months.[17]
[16] TB1, 9, TB2, 285-286.
[17] TB2, 308.
Supreme Court
An appeal against these convictions was heard on 30 March 2017 in the Supreme Court. In a judgment delivered on 15 June 2017, Stanley J dismissed the appeal. In doing so he affirmed that the Defect Notice was lawful: Johnson v Police.[18]
[18] [2017] SASC 87, [39]-[40].
Stanley J took the bases of Mr Johnson’s appeal to be the following:[19]
1.The magistrate erred in failing to exclude improperly or illegally obtained evidence of the examination of the vehicle on 14 July 2014 which resulted in the issue of the defect notice.
2.The defect notice was void as there was no reasonable or probable cause for the defects identified except the minor defect concerning the boot strut which was not a safety risk requiring the issue of a defect notice having regard to the provisions of s 145(4a) of the Road Traffic Act.
3.The magistrate erred in refusing admission of the appellant’s unrebutted affidavit of June 2015.
4.The magistrate gave no or insufficient weight to the appellant’s attempt to have the defect removed or varied pursuant to s 145(5g)(a) of the Road Traffic Act when he attended at the Whyalla Police Station with the vehicle and compliance paperwork on 15 July 2014.
[19] Ibid [18].

His Honour held the Magistrate erred in concluding a ‘corroded boot strap was a deficiency’ for the purposes of s 145 of the Road Traffic Act, on the understanding that corroded boot straps could not constitute a breach of the light vehicle standards required of s 116(1)(b) thereof, as it did not ‘endanger a person driving the vehicle’ in that condition.[20] Stanley J further considered the Magistrate erred in concluding SC Paterson held a reasonable suspicion that the gas plate was out of date, because that suspicion must be formed before ‘the officer direct[s] the driver to stop at some time before conducting an examination’.[21] On the other hand, the defect notice was upheld on the basis of a deficiency in the front left tyre as it was ‘worn down to the wear bars’. Stanley J did not consider the failure of the police to take a photograph of the condition of tyre was of ‘great moment’, as the Magistrate had.[22]
[20] Ibid [25]-[28].
[21] Ibid [29].
[22] Ibid [30]-[31].
Based on those conclusions, Stanley J was not satisfied the occasion for the exercise of the discretion to exclude evidence was available.[23] Even if it was, he did not propose exclusion of issuing the Defect Notice, for the reasons that there was ‘no basis to conclude … that this was deliberate’, that the police officer ‘went about the performance of his duties in relation to defecting the vehicle in a conscientious fashion’, and that any wrongdoing ‘was inadvertent’.[24]
[23] Ibid [33].
[24] Ibid [33]. The provisions of the Uniform Evidence Act 1995 (Cth) referred to by Mr Johnson a number of times are not applicable to State charges tried in the State Courts.
As to ground 2, Stanley J found the Magistrate was correct:[25]
… in finding that irrespective of the appellant’s views about the condition of the vehicle when the Defect Notice was issued on that day, he committed an offence by driving the car with the Notice affixed’.
Ground 3 was dismissed on the basis that there was:[26]
… no error in the approach taken by the Magistrate … particularly so given that the appellant admitted he was driving the vehicle with the Defect Notice affixed on 2 August 2014.
[25] Ibid [39].
[26] Ibid [44].
As to Ground 4, his Honour considered:[27]
There was no error on the part of the Magistrate. The appellant’s unsuccessful attempt to have the defect notice removed did not entitle him, simply because he disagreed with the police’s assessment of the vehicle and its deficiencies, to ignore the defect notice and drive contrary to its terms.
With respect to the appeal for the conviction of resisting police, his Honour was satisfied ‘there was no error in the Magistrate’s finding’ given the evidence concerning Mr Johnson gripping the car steering wheel tightly and firmly as the police officers attempted to remove him from the vehicle.[28]
[27] Ibid [50].
[28] Ibid [54].
Later Magistrates Court proceedings
Soon thereafter, Mr Johnson was summonsed to appear before the Whyalla Magistrates Court on 3 July 2017 for breaching the Community Service Order. As he failed to appear, he was arrested on 26 July 2017 on a Warrant issued on 3 July 2017,[29] bringing him before another Magistrate. On 26 July 2017, a breach of the Community Service Order was found proven and Mr Johnson was ordered to undertake 28 hours of Community Service within six weeks.[30] He lodged an Appeal against this decision as well, which he subsequently discontinued.[31]
[29] TB2, 313-314.
[30] TB2, 315.
[31] TB2, 316.
Mr Johnson again fell into breach of the Community Service Order and was summonsed to appear in the Whyalla Magistrates Court on 30 October 2017. Upon failing to do so, a Warrant was issued for his arrest and executed on 3 November 2017.[32] He appeared before the Magistrates Court that day. As he did not apply for bail he was ‘remanded to Port Augusta gaol to seek legal advice’.[33] On 8 November 2017 the matter came before the same Magistrate who originally found Mr Johnson guilty of the two offences, when he admitted breaching the Community Service Order. He was sentenced to four days imprisonment commencing on 3 November 2017, thereby discharging that sentence as of this appearance date.[34]
[32] TB2, 317.
[33] TB2, 317.
[34] TB2, 317-318.
Having sketched the somewhat protracted course of the underlying proceedings, it is now possible to turn attention to the multiple issues raised during the course of the trial.
Background incidents
In his second Statement of Claim, and on occasion during the course of the trial, Mr Johnson referred to two incidents in the past, both relating to defect notices issued by Police. The first occurred on 8 January 2013 when he was pulled over and defected on the basis of bald tyres whilst driving another vehicle. He claims there was no such fault and that the police refused to remove the defect notice notwithstanding. He made a formal complaint to police, which was rebutted.
The second incident occurred on 25 January 2013 when police defected the same vehicle over the gas system as was subject to the notice on 14 July 2014. Again, Mr Johnson claimed there was no such fault. This went to trial and Mr Johnson was acquitted. This became the subject of a half page article in the local Whyalla paper under the headline ‘Local Man Found Not Guilty of Hindering Charges’.
Mr Johnson drew attention to these two incidents, not as founding any cause of action sounding in damages as such, but rather as illustrative of the fact that police victimised him and in order to promote his suggestion that the police officers involved in this case were aware of the circumstances and therefore effectively targeted him in respect of the core incident of 14 July 2014. There is however, no direct evidence that the police officers involved either knew of, or were involved in those earlier incidents. On the contrary, the evidence suggests that SC Neil Paterson randomly pulled him over on the subject occasion and had little prior knowledge about him.[35] The same can be said of Constable Andrew Paterson in respect of the later incident of 2 August 2014.[36]
[35] T109.6-.22.
[36] T183.19-.24. The officers are unrelated.
Arrest on 14 July 2014
Mr Johnson claims his arrest on this day amounted to trespass to the person, the torts of assault and battery, as well as false imprisonment. He further claims the search of the vehicle was unlawful. He maintains that he was wrongly charged with refusing to give his name and address, that his vehicle was falsely defected and that the police improperly refused to remove the defect notice. He further claims that since the charges were subsequently withdrawn, he was maliciously prosecuted in the subsequent criminal proceedings based on the events of 2 August 2014, even though the false defective notice remained.
The evidence of Senior Constable Neil Paterson was that on Monday morning 14 July 2014 at around 10.30 am, he was on uniform mobile highway patrol in the Whyalla area.[37] Based at the time at the ‘Eyre Western LSA Highway Patrol out of Whyalla’,[38] he described the initial encounter with Mr Johnson:[39]
I was on solo uniform patrol just performing my usual traffic duties within the township when I saw a yellow Ford sedan travelling on Jenkins Avenue heading in a westerly direction. So, I pulled in behind the Ford and turned my red and blue lights on, emergency lights, just to stop it for random breath testing. The vehicle slowed and then stopped suddenly, so I had to go out and around it and stop in front of it.
He approached the car with alcotest and drug screening equipment when he was handed a piece of paper with Mr Johnson’s correct name and address on it. This note was created by Mr Johnson on a computer in the manner of a ‘business card’, which read:[40]
Trevor Johnson
1 Curnow st
Whyalla 5608
The particulars were perfectly correct so far as they went.
[37] TB 1, 112, T108.8-109.24. The offences are unrelated.
[38] T108.9.
[39] T109.17-.24
[40] T53.26-.38, TB1, 73.
Senior Constable Paterson proceeded to put the note aside and began the alcotest and drug screening procedures. He subjected Mr Johnson to a random alcotest and drug screen test, with which he fully co-operated. These returned negative presumptive results.
The majority of the succeeding events were recorded, a transcript of which was provided to the court by way of an aide memoire.[41] This transcript is Attachment ‘A’ to these reasons. Mr Johnson takes no particular issue with it so far as accuracy is concerned. The original audio/visual recording itself was transferred to disk and became Exhibit D3A. This was played in open court and both parties made submissions with respect to it. It is clear that the police officer had the correct name and address of Mr Johnson, other than for his middle name which was not on the card given to him.
[41] MFID3.
After completing the tests, SC Paterson sent details of the registration number of the vehicle driven by Mr Johnson via police radio. It belonged to a friend and it was driven with her consent. During the course of this radio exchange, Senior Constable Paterson sought backup as ‘this gentleman is getting a little hard to get along with’. It was around 10.40 am by then.[42] Clearly Mr Johnson desired to leave.
[42] TB 1, 115.
Despite this he was for a second time asked to state his ‘full correct name’, to which he retorted by wanting the name of the Officer. Following another exchange over the police radio, Senior Constable Paterson insisted on having Mr Johnson orally provide his full correct name and address. Having complained that detaining him amounted to an assault, Mr Johnson was arrested for refusing to provide his name and address. It was particularly from this point that voices became quite raised, even angry on both sides in more or less equal measure.
Soon after, and for a third time, Mr Johnson was asked to state his full name and address, immediately before SC Paterson demanded ‘now get out of the car’. Mr Johnson protested that he had not refused to provide his name and address. At this, Senior Constable Paterson insisted he was ‘required by law’ to state his name and address, and to ‘produce identification’. Mr Johnson protested he had 24 hours to produce a licence. He was then told he was under arrest and again SC Paterson demanded of him to ‘hop out of the car’ on two occasions. SC Paterson placed his hands on Mr Johnson in order to extract him from the vehicle as he protested outrage. He was then threatened twice with capsicum spray ‘Get out of the car or I will spray you’ which SC Paterson removed from his police vest and held up to Mr Johnson,[43] before again demanding him to state his ‘full correct name’. Mr Johnson remained insistent that he had already done so.
[43] AB1, 13.
Shortly thereafter Senior Constable Marshall arrived on the scene. He assisted to drag Mr Johnson from the driver’s position and then assisted in attempting to apply handcuffs. Senior Sergeant Ball next arrived when the three officers moved Mr Johnson to the rear of his vehicle and leant him over the boot to facilitate restraining him.[44] They positioned him over the boot where he was handcuffed to the rear. According to them, he continued to resist as they placed him in the rear of a police cage car.
[44] AB1, 116.
In the course of his evidence-in-chief SC Paterson stated his reason for arresting Mr Johnson was that:[45].
I wanted him to provide me with his name and address. He refused to do that. He kept saying it's on the piece of paper. I hadn't met him before, didn't know who he was or where he was from. I didn't know if that was in fact his correct details. So I decided to arrest him.
All the same Mr Johnson extracted this concession from him:[46]
Q.As a police officer of 30-odd years, what is your knowledge on the law in regards to people that you stop giving you identification.
A.I didn't realise at the time that a simple piece of paper with a name and address on it was sufficient identification. I've never come across this issue before and had no knowledge of the background.
[45] T111.1-.6.
[46] T118.5-.10.
SC Paterson responded to these further questions from the Bench on this topic:[47]
[47] T118.28-T119.4.
Q.I think what's important is not your knowledge but it was your understanding at the time. I gather from your last answer that you didn't realise a piece of paper was sufficient. At the time, what was your understanding of what was required of a driver to comply.
A.That he had to state his full name and address.
Q.So you mean stated orally.
A.Yes.
Q.That was your understanding.
A.That was my understanding, yes.
Q.Did you have any understanding whether the production of something else might suffice.
A.I [sic] license, a pension card, a proof of age card, maybe some registration papers.
He later added:[48]
I didn't know you and I didn't know the name and address on the paper was actually you. I didn't know that. There was nothing else produced to me. You didn't tell me anything else.
[48] T119.20-.23.
There can be no doubting the power of police to conduct random breath tests or indeed that such tests are lawfully required at other than random breath test stations. There is no complaint by Mr Johnson about this much. So much is evident from s 47E of Road Traffic Act:
Statutory powers to random test and to defect vehicles
47E—Police may require alcotest or breath analysis
(1)Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—
(a)     is driving, or has driven, a motor vehicle
(b)     is attempting, or has attempted, to put a motor vehicle in motion; or
(c)     is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
(2)A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis.
Nor is there any doubt as to the capacity of police to direct vehicles to stop pursuant to s 145(1a) of the Road Traffic Act. This provides:
145—Defect notices
(1a)An authorised officer may direct the driver of a vehicle to stop the vehicle and may examine the vehicle if the vehicle has deficiencies or the officer suspects on reasonable grounds that the vehicle has deficiencies.
This power was not invoked in this instance. Nor was it enlivened since SC Paterson had no antecedent knowledge of any defectable deficiencies and he held no requisite suspicion as to that either.
The power to issue defect notices is conferred by s 145(5) of the Road Traffic Act in these terms:
(5)If, on examination of a vehicle, an authorised officer is of the opinion that the vehicle has deficiencies and reasonably believes that further use of the vehicle on roads would give rise to a safety risk, the officer may issue a written notice (a defect notice) in relation to the vehicle, being—
(a) if the officer reasonably believes that further use of the vehicle on roads after the time specified in the notice would give rise to an imminent and serious safety risk—a major vehicle defect notice; or
(b) in any other case—a minor vehicle defect notice.
Once issued, the defect notice must contain a direction that the vehicle must not be driven on a road until the vehicle is produced for examination at a place specified in the notice, a certificate of clearance is issued, or is otherwise removed or withdrawn by an ‘authorised officer’: s 145(5g) of the Road Traffic Act. Police officers are so authorised for these purposes pursuant to s 5 of the Road Traffic Act. Section 145(6) thereof provides that a person must not drive a vehicle on a road ‘contrary to the terms of a defect notice’, whereas s 117 of the Road Traffic Act makes it an offence punishable by a maximum fine of $2,500, for driving a vehicle on a road in breach of the Light Vehicle Standards. These were the applicable standards in this instance.
The defect notice
In this particular instance, Senior Constable Neil Paterson issued the defect notice at 11.00 am on 14 July 2014. It indicated:[49]
.        Gas out of date
.        Boot gas strut to be fixed
.        Engine oil leaks to be fixed
.        Front left tyre to show full tread
The notice was designated as falling within the ‘major category’, that the vehicle could be driven for two hours from that time, and was directed to a Vehicle Inspection Station for ‘clearance’.[50] It further provided that the issues of oil and fuel leaks required inspection at a Vehicle Inspection Station, whereas the tyres were capable of clearance at a Police Station.[51]
[49] TB1, 70.
[50] TB1, 70-71.
[51] Ibid.
The examination of the vehicle
Whilst examining the vehicle, SC Paterson came across a current gas compliance certificate in the glove box. This meant he instantly knew the LPG gas system was in fact compliant so far as expiry was concerned.[52] On finding the LPG compliance certificate, the defect notice should not have been issued on that account. This did not however adversely affect the balance of the defect notice.
[52] TB1, 63-64.
Mr Johnson argued the entire search of the vehicle was unauthorised. The power to search a vehicle arises in the case of defect issues, pursuant to s 145(1a) of the Road Traffic Act, quoted earlier. The fact of the matter is that in the course of making sure the vehicle was parked correctly, SC Paterson claims to have noticed the tread wear on the tyre as well as ‘some more defects’, before embarking on an examination and search of the vehicle.[53] That being the case, the prerequisite condition that the ‘vehicle has deficiencies’ was satisfied and the power to search was thereby duly engaged.
[53] T113.14-.24.
It follows the examination of the glove box and the boot for the purposes of ascertaining if the ‘vehicle has deficiencies’ was valid, even though SC Paterson’s main purpose was to ‘look’ in the glove box to see if there was any identification in it such as ‘a rego certificate’.[54] The power of search of suspected vehicles conferred by s 68(1) of the Summary Offences Act was not engaged. Even if the examination of the vehicle was unlawful, nothing detrimental to Mr Johnson came of it. It was after all to his advantage that the compliance certificate was found and the defects related to the gas system in the boot, were relatively minor in the scheme of things.
[54] T122.38-123.2.
The direction to provide full name and address
As seen earlier, Mr Johnson substantially complied with the requirement to provide his full name and address, omitting only his middle name. Exactly the same might be said of SC Paterson himself. Paterson did not profess to have demanded the full name and address on this account anyway. It was spoken compliance he was after. Section 74AB(3) of the Summary Offences Act 1953 (SA) requires a police officer to either produce his police identification or state orally or in writing his surname, rank and identification number. Here again, Senior Constable Paterson substantially complied, in that he provided his surname, he was in uniform which therefore sufficiently identified him as a police officer and he wore a badge showing his police identification number.
The requirement of private citizens to provide a full name and address to police resides in ss 40V(2) & (3) of the Road Traffic Act. These provide:
Subdivision 5—Other directions
40V—Direction to give name and other personal details
…
(2)If an authorised officer suspects on reasonable grounds that a natural person whose personal details are unknown to the officer—
(a)     is or may be a responsible person; or
(b)     has committed or is committing or is about to commit an Australian road law offence; or
(c)     may be able to assist in the investigation of an Australian road law offence or a suspected Australian road law offence; or
(d)     is or may be the driver or other person in charge of a vehicle that has been or may have been involved in an accident,
the officer may direct the person to give the officer then and there any or all of the person's personal details.
(3)If an authorised officer suspects on reasonable grounds that a personal detail given by a person in response to a direction is false or misleading, the officer may direct the person to produce evidence then and there of the correctness of the detail.

A person who engages in conduct resulting in contravention of a lawful direction given under these sub-sections, or who provides false or misleading details in a material particular, commits an offence punishable by a fine of $5,000 pursuant to ss 40V(4) & (5) of the Road Traffic Act. The personal details required are defined in s 40V(1)(a)(b)(c) thereof as including the person’s ‘full name … date of birth’ and the address ‘of where the person is living’. The failure to furnish the middle name could not be ‘false or misleading in a material particular’ unless there was some doubt as to the correctness of personal details given when the person has an identical christian and surname to another.
The power to require Mr Johnson to provide his full name and address was clearly available in this instance, merely because he was the driver of the vehicle at the time, and as his personal details were unknown to SC Paterson: Roberts v Brebner,[55] Samuel v Broad.[56] At common law, Police Officers had no power to stop vehicles or to subject its occupants to compulsory questioning, and when they did they were no longer acting in the course of their duties: DPP v Hamilton.[57]
[55] [1963] SASR 40, 43-44.
[56] (1974) 8 SASR 576, 579.
[57] (2011) 33 VR 505, 545.
It was held in Police v Peek,[58] that responding to police questioning with ‘no comment’, amounted to a failure to answer questions. So far as relevant to the present case, in R v Dam & Nguyen,[59] it was held that s 40V(2)(a) of the Road Traffic Act entitles a police officer to direct persons to provide his or her personal details, and that it furnished the power to stop any vehicle, applying R v Prinse.[60] It was further held that the use of s 40V was not confined to the investigation of suspected breaches of the Road Traffic Act, applying R v Hooper.[61]
[58] (2007) 97 SASR 1.
[59] (2015) 123 SASR 511, [28], and [30]-[31] per Vanstone J, Kelly J and David AJ.
[60] (1998) 196 LSJS 267, 272.
[61] (1995) 64 SASR 480, 485.
SC Paterson had no basis in the slightest for thinking or suspecting any of the information he obtained from Mr Johnson was either false or misleading. It was not correct for him to insist those particulars be provided orally either. The direction to immediately produce a driver’s licence was unjustified as s 40V(3) of the Road Traffic Act did not apply, for the same reason. Furthermore, this was not a direction that could be lawfully made since ss 96(1)(a) & (b) of the Motor Vehicles Act 1959 (SA) requires the production of a driver’s licence forthwith, or if not, ‘within 48 hours of the making of the request’. Mr Johnson was perfectly right in maintaining his position on this point as well.
The objective circumstances were that Mr Johnson was lawfully stopped for random alcohol and drug testing purposes, with which he fully complied. He was lawfully directed to provide his personal details as they were unknown to SC Paterson. Mr Johnson had already given his correct name and address, marginally incomplete by the immaterial and inconsequential omission of his middle name.
There was no basis and no reasonable grounds to suspect these were false or misleading. SC Paterson did not claim to have formed that state of mind. He had police radio assistance on hand, through which he held the ready means to check the name and address if he wished to. His demands for more by way of oral means quickly grew into pedantic and pig-headed interdiction. Mr Johnson was of no danger or menace to anyone at that time. No offence was committed despite the defect notice. The only major defective aspect of the notice of consequence was in respect of the tyre. This was capable of inspection and clearance at the Whyalla Police Station. The other defects were relatively minor and did not ‘give rise to an important and serious safety risk’ within the meaning of s 145(5)(a) of the Road Traffic Act. At worst, very minor offences were at stake, punishable merely by fines.
In this combination of circumstances, the decision to arrest for the failure to state his full name and address was plainly unreasonable. SC Paterson’s understanding of his power of arrest was questionable and untenable, bearing in mind he was by then a serving police officer of about 35 years experience, for the most part in the very same role as a highway patrolman.[62]
[62] T108.6-.19.
The power of arrest
The power of arrest without warrant could only arise under the extraordinarily wide powers afforded to SAPOL officers under s 75 of the Summary Offences Act:
75—Power of arrest
A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence.
The common law merely conferred the power of arrest without warrant, only on suspicion of the commission of a felony: Christie v Leachinsky.[63]
[63] [1947] AC 573, 596.
Section 75 of the Summary Offences Act permits arrest for any offence, including relatively minor offences: Samuels v Hall.[64] In George v Rockett,[65] the High Court considered suspicion and belief were different states of mind, in that suspicion in its ordinary meaning is a state of conjecture or surmise when proof is lacking. That is something less certain than a belief. The Court made the point that facts capable of grounding a reasonable suspicion, might be quite insufficient to ground a reasonable belief. As pointed out in R v Nguyen:[66]
… reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information.
[64] [1969] SASR 296.
[65] (1990) 170 CLR 104 at 115.
[66] (2013) 117 SASR 432, [22].
The fact of the matter is that SC Paterson could so easily have checked the details he was given. Such an inquiry would have certainly proven them correct. In any event it was an effective and sufficient option to report Mr Johnson and summons him for failing to provide his personal details in the unlikely event that it became necessary. The power of arrest was not in the circumstances ‘effected in good faith, and for the purposes contemplated by the enactment’: Drymalik v Feldman.[67]
[67] [1966] SASR 227, 231.
The phrase ‘may apprehend’ in s 75 of the Summary Offences Act imparts a discretion to proceed by way of summons rather than arrest, as explained by Goddard LJ in Doombell v Roberts:[68]
In giving this power of arrest Parliament obviously contemplated that it was only to be used if it was necessary to ensure the suspect being brought before the court. If his name and address could be ascertained the police could proceed by summons, which is the proper course to take in case of misdemeanours or summary offences unless, where there is power to arrest, there is reason to believe a summons would not be effectual.
[68] [1944] ALL ER 326, 332.
This statement of principle was cited with approval by Bryson JA in Zaravinos v State of New South Wales,[69] (Santow JA and Adams J) agreeing, in the context of s 352 of the Crimes Act 1900 (NSW) and the phrase therein any ‘any constable … may without warrant apprehend any person …’.
His Honour added:[70]
It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary highhanded and humiliating behaviour in circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of information and summons as an alternative course, and the considerations favouring and adverse to taking that alternative course, are relevant where the validity of the exercise of the power to arrest is in question.
Whether or not the arrests themselves were lawful, the burden of proof of the lawfulness of the continuance of the detention throughout the period rested on the defendants.
[69] (2004) 62 NSWLR 58, 71.
[70] Ibid, 72.
In these combined circumstances the act of arrest amounted to an ‘outrageous and unwarrantable exercise of arbitrary power’ to borrow an expression falling from Bray CJ in R v Stafford.[71]
[71] (1976) 13 SASR 392, 401.
The situation here is somewhat different from that confronted in Cavanagh v Galkowski.[72] There Jacobs J held the act of placing a driver’s licence to the window of a locked vehicle constituted the failure to truly answer questions, contrary to s 42 of the Road Traffic Act as it then stood. It appears tolerably clear that this decision turned on the failure to affirm the licence produced was that of the driver. Here Mr Johnson affirmatively acknowledged his correct name was ‘writtten on the piece of paper that I just provided you’.
[72] (1979) 20 SASR 322.
The circumstances are rather more analogous to those confronting the High Court in Trobridge v Hardy.[73] Mr Trobridge was driving a taxi-cab in a Perth suburb at a slow speed. Hailed from the kerbside by two intending passengers, he backed up to allow them to enter. As he opened the rear door, two police officers in plain clothes approached and demanded his name and address and told him he would not be allowed to take the passengers. They demanded his name and address, which caused him to ask what he was charged with, only to be told ‘plying for hire’. He handed over a card containing his name and address, before something of a struggle ensued, resulting in his arrest for refusing to provide his name and address.
[73] (1955) 94 CLR 147.
The case came before the court as the driver’s action for assault, malicious arrest and wrongful imprisonment. The decision predominantly deals with the question of ‘malice’. Fullagar J was sufficiently moved to make the oft-cited observation that the liberty of the individual is ‘the most elementary and important of all common law rights’.[74]
[74] Ibid 152.
In his judgment, Kitto J described the situation in these terms:[75]
We have the spectacle of a constable, over-officious and boorish, who, in the presence of strangers, impetuously accuses a taxi-driver in terms of crude insult and offensiveness of the minor offence of cruising for hire. Finding that he must abandon the charge because the passengers in the taxi will be ranged against him on the issue of fact, a sense of frustration and an affronted dignity lead him to look for a way of getting even with the innocent cause of his discomfiture. He surlily demands the taxi-driver's name and address. The taxi driver complies at once by stating his surname orally and handing the constable his card which shows his surname and the initial letter of his first name, the telephone numbers of his taxi-rank and his home, and his home address. If more is needed, the taxi is there, so that its registration number can be taken. In truth, of course, nothing is needed, for the constable knows that he is not in a position to allege the commission of any offence. He takes the card, but does not bother to read it. The taxi-driver proceeds to ask and write down the names of his passengers, lest a charge should be laid against him and he should need the passengers as witnesses; but he informs the constable that as soon as he has taken the names he will tell him anything further he wishes to know. There is nothing further the constable wishes to know; and obviously he does not wish to know even the information already in his possession. But his irritation, the irritation of a conceited man who has given a display of arrogance and been proved wrong before witnesses, mounts to anger.
Taylor J spoke of the circumstances in this way:[76]
The respondent's approach to the appellant was "aggressive, rude and abusive and quite contrary to what ordinary law-abiding members of the public are entitled to expect when questioned by police officers regarding minor breaches of the law", whilst "the plaintiff's conduct was courteous, correct and entirely unprovocative and that despite the provocation he himself received". Notwithstanding that, after speaking to him at the kerbside, the respondent was satisfied that the appellant had not committed the offence of cruising or plying for hire he forbore to tell the appellant so. In the course of arresting the appellant "the respondent made himself unnecessarily unpleasant and went far beyond what was called for under the circumstances". He "handled the appellant unnecessarily and threatened to handcuff him though he was an elderly man who did not in any way resist arrest or show any disposition to attempt to escape".
His Honour added later:[77]
In view of the fact that the respondent satisfied himself that the appellant had not been cruising or plying for hire one may wonder why he demanded the appellant's name and address, but, whether or not there was any reason for this, the findings of the learned trial judge disclose an abuse of authority which is about as gross as it is possible to imagine. The respondent's conduct, which, in the opinion of the learned trial judge, so far departed from the standards commonly observed by the police force of the State, evoked a well-merited stricture from him. Strong condemnation of the respondent's conduct was, he thought, necessary not only in the public interest but in the interests of the police force itself. It is perhaps unnecessary to add to what his Honour has already said but I cannot forbear to say that upon the facts as found by him the respondent's conduct constituted a grave and completely unwarranted interference with the appellant's person and liberty.
[75] Ibid, 165.
[76] Ibid, 168.
[77] Ibid, 169.
A not dissimilar situation to the present confronted the trial Judge in the Teeside Crown Court in R v Eeet.[78] Following lawful arrest for an assault, the accused was taken to a police station where he continued to maintain his refusal to identify himself. He was searched for the sole purpose of ascertaining his identity. Upon refusing to allow himself to be searched, three officers forcibly attempted to search Mr Eeet by wresting from him a diary which they thought might contain a clue to his identity.
[78] [1983] Crim LR 806.
The Judge directed the jury to acquit on this basis (according to a note of the case):[79]
The identity of the prisoner, should it have become material, could readily have been established by other means lawfully open to the officers. Therefore he concluded, not without hesitation, that at that stage of the inquiry and in those circumstances a search of E against his will was unjustified and outside the general scope of lawful search as disclosed by the authorities. He had been troubled whether the parallel arrest of E for suspected taking without owner’s consent might not have justified a general search for evidence of that offence; but that offence had not been in issue at the time when the decision to search was taken nor had any mention of it been made to E at the time of the search. Accordingly the only relevant reason for the search was to establish E’s identity, which was not justified by the circumstances. The search was unlawful and amounted to an assault by the officers on E. Since the prosecution did not seek to argue that the force used by E to defend himself against that assault had been excessive, the jury would be directed to acquit E.
[79] Ibid 807.
The decision in Eeet was referred to uncritically in passing by Bell J in Director of Public Prosecutions (DPP) v Kaba.[80] The facts of that case bear an incomplete comparison with the present, although the legal principles engaged are largely in common. Mr Kaba was a passenger in a car intercepted by two Police Officers. One approached the driver and explained he was undertaking a routine licence and vehicle check. On request, the driver produced a current Victorian licence. He voluntarily remained in the vehicle while checks were carried out. As the Officer walked to the front of the vehicle to check the registration label for an expiry date, Mr Kaba asked him, ‘How long was this fucking going to take? I have somewhere to be’. A police radio inquiry revealed that at some time in the past marijuana was found in the vehicle, or in the possession of the driver. The driver was then asked and gave his consent to a search of the vehicle. The other Police Officer who remained in the police vehicle, observed Mr Kaba exit the vehicle, prompting the first Officer to ask him for his name or identification. Kaba responded ‘Fuck off’. A second request was abusively refused.
[80] (2014) 44 VR 526, [61].
At this the second Officer approached Mr Kaba telling him he needed his name ‘to say I spoke to you’. Mr Kaba responded ‘Go and get fucked c…, I’ve done nothing wrong’. That Officer told Mr Kaba he thereby committed the offence of using offensive language, prompting the retort ‘(T)hat’s fucking bullshit … you are a racist’. The Officer again asked Mr Kaba for his name and address and got the further response ‘I don’t have to tell you anything, I’ve done nothing wrong’. At this the Officer insisted that if Mr Kaba did not state his name and address, he would be placed under arrest ‘until I can confirm who you are’. Again, Mr Kaba replied ‘This is fucking bullshit, you’re just harassing me because I am black’.
Mr Kaba was thereupon arrested for failing to state his name and address, and was asked to turn out his pockets as a consequence. Instead he removed his T-shirt, dropped his trousers and underpants before grabbing hold of his penis whilst telling the Officer ‘See I have got nothing on me’. After being cautioned, Mr Kaba was handcuffed behind his back. Thereafter repeated requests for his name and address were abusively refused.
At the hearing of the charges laid against him in the Magistrates Court, Mr Kaba’s counsel objected to the police evidence on the grounds of unlawful and improper conduct on their part in carrying out a random licence check for which they had no power. The Magistrate upheld the objection and exercised the discretion to reject the evidence, causing the prosecution to collapse.
The prosecution sought judicial review. Bell J quashed the ruling on the limited footing that the Magistrate’s exercise of discretion was founded on an error in the interpretation of s 59(1) of the Road Safety Act 1986 (Vic). This provides:
The driver or person in charge of a motor vehicle on a highway has the following duties —
(a)to stop the motor vehicle, produce for inspection his or her driver licence document or permit document and state his or her name and address if requested or signalled to do so by —
(i)    a member of the police force or an officer of the Corporation or of the Department of Transport (being an officer authorised in writing by the Corporation or the Secretary of the Department of Transport as the case requires, in that behalf); or
(ii)     an officer of or person authorised in writing in that behalf by any municipal council who has reasonable grounds for believing that any provision of the regulations relating to the mass or dimensions of a motor vehicle or trailer or to the number of hours during which a person may drive a motor vehicle or to the carrying of a log book on a motor vehicle is being contravened; and
(b)to obey any lawful direction given to him or her by a member of the police force under subsection (5).
The power to make a lawful direction contemplated by s 59(1) is contained in s 59(5) thereof as follows:
A member of the police force may give such reasonable directions to a person driving or in charge of a motor vehicle on a highway as are, in the opinion of that member, necessary —
(a)     for carrying into execution the provisions of this Act or the regulations; or
(b)for the purposes of any traffic survey being carried out in the vicinity of the highway.
His Honour held this power ‘reveals that the Victorian Parliament unmistakably intends that s 59(1)(a) is to confer, by necessary implication, both a duty on drivers and a power of stop on police…’.[81] Nevertheless he went on to hold:[82]
… the police questioning was improper and in contravention of Australian law because it was done without authority and in contravention of Mr Kaba’s rights and freedoms at common law.
[81] Ibid [239].
[82] Ibid [461].

Much the same may be said of the present case. Mr Johnson’s case must succeed on the grounds that he was unlawfully arrested and unlawfully taken into custody on 14 July 2014. The consequences of this conclusion are examined later.
Was Mr Johnson physically assaulted?
Mr Johnson alleges that once he was extracted from his vehicle by force during the incident of 14 July 2014, he was thrown to the ground and his head was smashed against the boot of the vehicle two or three times. This is denied by the police officers involved, although one of them admittedly was not in a position to see it.[83]
[83] T112.15-.21, T131.26-.29, T144.14-.20, T145.19-.30.
Apart from his own evidence, the scant material supporting this allegation consists of progress notes of a Dr Francis, whom Mr Johnson consulted just before midday on 17 July 2014. The note in this consultation records:[84]
[84] TB1, 23.
Body aches
         claims was arrested and beaten up by the police
         no physical injury noticeable
         aggravated right shoulder pain
         claims case would be going to court
Actions:
Prescriptions printed:
LIPITOR TABLET 40 mg 1 daily m.d.u
FAMVIR TABLET 250mg 1 b.d. m.d.u
Prescription added: VOLTAREN 25 EC TABLET 26mg 1 b.d. p.c.
Prescription printed:
VOLTAREN 25 EC TABLET 26mg 1 b.d. p.c
Mr Johnson’s evidence was that the Voltaren tablets were prescribed for the shoulder pain mentioned in the notes.[85]
[85] T85.27-.32.
Subsequent progress notes of 28 July 2014, record persistent headaches.[86] There was a prescription for Maxalt Wafer which Mr Johnson told the court were for severe headaches.[87] A third progress note of 31 July 2014 again refers to migraines and that Mr Johnson obtained ‘some relief with the Maxalt Wafer’.[88] Dr Francis certified Mr Johnson fit to return to work by Thursday, 3 August 2017 in respect of an unrelated knee problem.[89]
[86] TB1, 24.
[87] T85.16-.19.
[88] TB1, 25.
[89] TB1, 26, T35.7-.21, T86.30-.37.
It is common ground that when effecting arrest, Mr Johnson was placed over the rear boot and cuffed from behind because he was resisting. It is then entirely possible that his head was pushed against the boot of the car in the process, particularly given that he was handcuffed from behind. The claim to ‘aggravated right shoulder pain’ is entirely consistent with the allegation that he was kneed to the shoulder in light of SC Marshall’s concession that he placed his knee into Mr Johnson’s shoulder at this time.[90]
[90] T145.27.
There is no mention in the Doctor’s notes suggesting any visible injury. The notes are admissible for the purpose of proving the truth of what Mr Johnson said to Dr Francis, but they are not admissible to prove any lasting injury in the absence of Dr Francis giving evidence: s 53(a) of the Evidence Act 1929 (SA).
Mr Johnson’s evidence was coloured and distorted by self-righteous indignation and therefore unreliable. His exclamation during the course of this evidence that SC Paterson was ‘lucky I didn’t have a gun’, substantially supports this assessment.[91] In this state of the evidence Mr Johnson simply fails to prove an assault in the manner alleged on the balance of probabilities, other than the force attributable to placing him under arrest and restraining him whilst he struggled to resist.
[91] T64.6.
The twice uttered threat to capsicum spray Mr Johnson is a different matter altogether. An assault is comprised of any act which intentionally causes another to apprehend immediate and unlawful personal violence: Macpherson v Brown.[92] Accordingly an assault does not therefore necessarily involve physical contact: R v Phillips,[93] which is precisely the situation here.
[92] (1975) 12 SASR 184, 200.
[93] (1971) 45 ALJR 467, [472].
More force than reasonably necessary to effect arrest?
However unjustified his arrest otherwise was, the situation was contributed to by Mr Johnson’s own refusal to leave the car voluntarily. It was this act of defiance which led the officers to employ force. Mr Johnson was on the other hand entitled to use reasonable force to resist an unlawful arrest, which is exactly what he did in this instance. This initially consisted of passive resistance by grabbing the steering wheel and struggling to avoid arrest before attempts were made to place him in a ‘shoulder lock’, and before handcuffing:[94] Lindley v Rutter.[95] The power of arrest conferred by s 75 of the Summary Offences Act impliedly authorises police to use such force as is reasonably necessary in affecting arrest: Walker v West,[96] R v McKay,[97] and R v Turner.[98] That is, an arresting officer is entitled to use such a degree of force in the circumstances as he reasonably believes to be necessary, and to adopt means that are not disproportionate for that purpose: R v Turner.[99]
[94] T131.30-132.8.
[95] [1981] 1 QB 128, 134-186.
[96] [1981] 2 NSWLR 570, 582.
[97] [1957] VR 560, 573.
[98] [1962] VR 30, 36.
[99] Ibid, 36.
As SC Paterson had no reasonable grounds for effecting arrest, he necessarily had no reasonable grounds for using any degree of force, although Marshall and Ball were not to know that. This aspect of Mr Johnson’s case must therefore succeed, in as much as more force than was reasonably necessary was used to arrest him. Once again, the consequences are considered later.
False imprisonment
The elements of an action in false imprisonment were summarised by Kirby J in Ruddock v Taylor in these terms:[100]
Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions.
A falsely imprisoned plaintiff may be awarded damages for any pecuniary and non-pecuniary loss occasioned as a consequence, because the principal function of the action is to provide a remedy for ‘injury to liberty’ rather than as compensation for loss per se.[101]
[100] (2005) 222 CLR 612, [140] (footnotes omitted).
[101] Ibid [138].
The antecedent conclusions that Mr Johnson was wrongly arrested and that unreasonable force was used in the process, complete proof of this cause of action, even without proof of damage. Damage was suffered in any event because of the unpleasant, ignominious and forceful manner in which he was restrained and for the consequent loss of liberty between 10.40 am when he was arrested, until 1.44 pm when he was invited to and refused to apply for bail. That amounts to a total period of just over three hours. As noted earlier, Mr Johnson was arrested at about 10.40 am on 14 July 2014, but was not delivered to the Whyalla Police Station until 11.20 am, that is 40 minutes later. It remains unclear why this took so long given the proximity of the Whyalla Police Station to the scene of the events of this day.
Prosecution for 14 July 2014 charges
The situation here is somewhat complicated. The police apprehension report entered into the police system at 11.16 hours on 14 July 2014, certainly contained the correct personal particulars relating to Mr Johnson, including his date of birth and address amongst other things, but not his middle name.[102] This further suggests there was no particular difficulty or consequence in the failure to provide the middle name. This report further records that Mr Johnson was reported for the failure to provide his personal details to an officer on request, and for resisting police.[103]
[102] TB1, 65.
[103] Ibid.
After arrival at the Whyalla Police Station, an application for release on bail pursuant to s 8(1) of the Bail Act 1985 (SA) was given to Mr Johnson at 1.44 pm, which he refused or declined to complete.[104] A bail diary entry suggests the remaining personal particulars were obtained from Mr Johnson’s driver’s licence.[105] This was found in his wallet either on his person or in the glove box of the vehicle he drove. The entry further indicates that at about 3.00 pm that day Mr Johnson:[106]
Refused to apply for bail stating “You have 4 hrs to take me to court” and would not sign any paperwork, verbally abusing Police on several occasions. For Police prosecutor information only.
Other police records demonstrate he was released from custody on bail at 4.20 pm that same day.[107] He was admitted to simple bail on this occasion.[108] The court record notes Mr Johnson referred the court to a ‘video of first interaction with police’.[109]
[104] TB1, 74.
[105] TB1, 75.
[106] TB1, 75.
[107] TB1, 105.
[108] Ibid.
[109] Exhibit D5.
The charges came before a different Magistrate on 19 August 2014 and were remanded to 10 October 2014, when the police prosecutor tendered no evidence.[110] This was as a result of a review of the case by Sergeant Bellamy, a police prosecutor with considerable experience in the Summary Courts.[111] A ‘charged discontinuance notice’ completed by him on 9 October 2014, acknowledged there was ‘enough information to later identify JOHNSON’.[112] He points out in this notice it was ‘arguable that it is a mere technical breach to miss out his middle name on the piece of paper’. Having listened to the audio recording made at the roadside, Sergeant Bellamy considered that although Mr Johnson’s ‘conduct is clearly stupid and arrogant’, nevertheless ‘at law it is believed he complied with s 40V(4) of the Road Traffic Act’.[113] He therefore suggested withdrawal of this count, adding ‘it follows that if he complied with s 40V(4) the resisting should also be withdrawn’,[114] despite the fact that he at first considered there was ‘a prima facie case’.[115] This was a proper and responsible course of action to take.
[110] Ibid.
[111] T151.5-.36.
[112] TB1, 119.
[113] Ibid.
[114] Ibid.
[115] T154.7-.24.
It is clear from his evidence that Sergeant Bellamy was alive to the question of admitting Mr Johnson to bail promptly, despite the fact that he refused to execute a police bail agreement at the time and that there was no police opposition to bail.[116] It was essentially at Sergeant Bellamy’s instigation that the matter came before the court as it did.[117]
[116] T153.23, T155.19-28.
[117] Exhibit D5, T155.37.
Time in police custody
As noted earlier, Mr Johnson insisted at 3 pm on 14 July 2014 that the police only had four hours in which to bring him before a court.[118] This understanding is based on a misinterpretation of s 78(2) of the Summary Offences Act. This requires that a person arrested without warrant on suspicion of having committed a ‘serious offence’, can only be detained for four hours or such longer period not exceeding eight hours as may be authorised by a Magistrate. A ‘serious offence’ is defined in s 78(6) thereof as an offence ‘punishable by imprisonment of two years or more’. Plainly s 78(2) did not apply to Mr Johnson since the offences of resisting arrest and hindering police attract maximum penalties of six months imprisonment under s 6(2) of the Summary Offences Act.
[118] TB1, 75.
Otherwise, his circumstances were controlled by s 78(1) of the Summary Offences Act which required police to deliver him ‘as soon as reasonably practicable … into the custody of the police officer in charge of the nearest custodial station’, which of course was Whyalla in this instance. As noted, this took 40 minutes for a journey that should have taken about a third of that time.
It was held in Drymalik v Feldman,[119] that three hours was too long to comply with the ‘forthwith’ requirement as it then stood. In Feldman v Buck,[120] and Archontoulis v Samuels,[121] it was held on the other hand that ‘forthwith’ does not mean ‘instanter’. Rather, the section required an arrested person be taken in the shortest time reasonably practicable in the prevailing circumstances: R v Conley.[122] The ‘forthwith’ requirement was replaced with the present mandate ‘as soon as reasonably practicable into the custody of the officer in charge of the nearest custodial police station’, by s 16 of the Statutes Amendment (Arrest Procedures and Bail) Act, No 60 of 2013. The present regime is interpreted to accommodate the formal charging of applications and for processing bail applications during that time: R v Santos & Carrion.[123]
[119] [1966] SASR 227.
[120] [1966] SASR 236.
[121] (1981) 91 LSJS 370.
[122] (1981) 30 SASR 226.
[123] (1987) 61 ALJR 668, 126.
Thereafter, Mr Johnson’s situation was governed by s 13(3) of the Bail Act. In default of release on ‘police bail’ beforehand, this section requires the arrested person be:
brought before … [a bail authority] … on the charge in relation to which he … was arrested as soon as reasonably practicable on the next working day following the day of the arrest, but in any event, not later than 4.00pm on that day.
There was in this situation, no breach of any statutory provision requiring Mr Jonson to be brought before a court within four hours of arrest. Furthermore, the length of additional time spent in custody after 1.44 pm on 14 July 2014 before taken to court, was self-inflicted because of the dogged refusal to apply for bail. Accordingly, no valid cause of action and no damage resulted thereafter from the subsequent period of time Mr Johnson remained in custody after 1.44 pm.
The events of the following day
The following day, that is Tuesday 15 July 2014, Mr Johnson presented at the Whyalla Police Station where he spoke with Senior Sergeant Ball. His intention was to secure the release of the car, on the preconception that the defect notice was invalid. This entrenched view, and consequently that every police action following with respect to it was invalid, dominates the motivation behind Mr Johnson bringing these proceedings and prefigures his entire perspective of the facts and the law applying to them.[124]
[124] T27.23-.28.
Mr Johnson himself said that he actually showed the certificate of compliance to Senior Sergeant Ball who simply ‘refused to look at the paperwork, which then followed that he refused to look at the car either’.[125] This account largely accords with that of Senior Sergeant Ball on this topic:[126]
It says, 'Attended WLPS', so Whyalla Police Station, 'And disputed the defect notice. Advised about criteria for inspection of VIS', which is the vehicle inspection station defects, 'And also can only be driven to place of repair and to a police station for a clearance or an extension'. The context behind that is that if Mr Johnson was to get the repairs done and book an inspection time with the vehicle inspection station, we can grant an extension until that can be done because we're in the country. And then, 'Stating he will continue to drive and was warned as to the consequences of his driving. Disputed the arrest from the previous day also'.
[125] T27.23-28.13.
[126] T134.25-.38.
Senior Sergeant Ball considered he had the power to inspect a vehicle and to remove a minor defect if it was ‘repaired’ or otherwise ‘satisfactory’, but in the case of major defects ‘we can extend, but we cannot clear, we have to refer them to the Vehicle Inspection Station’.[127] It is surprising that Senior Sergeant Ball refused to look at the gas compliance certificate or to inspect the tyre at the very least, in view of Mr Johnson’s adamant stance that the tread was not worn as alleged. It was a simple and non-time-consuming exercise for him to undertake. As an authorised officer himself, he held the capacity to ‘vary or withdraw’ a defect notice under s 145(5a), and to issue a ‘clearance certificate’ pursuant to s 145(5h) of the Road Traffic Act. In this particular instance, the major defect category was issued on account of an alleged engine oil leak, whereas the tyre was capable of clearance at a police station, which of course included Whyalla.[128]
[127] T141.31-142.30.
[128] TB1, 71.
The basis of Mr Johnson’s complaint in respect of the events of 15 July 2014 are premised on the fact that it was within the power of Senior Sergeant Ball as well as a proper exercise of his powers, to remove the defect notice after inspecting the vehicle. To the extent that Senior Sergeant Ball was of the view that once issued, he was bound by the notice and powerless to do anything, cannot be accepted. As an authorised officer he was entitled, if not obliged, to examine the vehicle for the purpose of determining whether the required repairs were made, pursuant to s 145(5d) of the Road Traffic Act. If he had done so, he would have found that the gas tank aspects were not defective and would in the process have conclusively settled the tyre issue, one way or the other.
Senior Sergeant Ball should have offered greater assistance to Mr Johnson in the circumstances. The vehicle was impounded at the Whyalla Police Station, so a simple inspection was likely to conclusively demonstrate whether the tyre was defectable, and whether it presented ‘a safety risk’ within the meaning of s 145(5)(a) of the Road Traffic Act if it was. That outcome was denied Mr Johnson by the refusal to inspect the vehicle. However, since that issue was determined against Mr Johnson in the Supreme Court, that aspect of the matter can be taken no further. Mr Johnson’s action on account of this issue must therefore be rejected. It is in any event, not possible to conclude that any actionable cause of action arose from these events of 15 July 2014, despite the unhelpful attitude and stance of Senior Sergeant Ball.
Whether the defects alleged existed or not, and whether the defect notice later proved to be invalid, the law is that it remained valid and in full force and effect as an administrative act made in the exercise of a statutory power, until set aside or invalidated by a court of competent jurisdiction, either by way of an appeal if one exists, or by judicial review if it does not: Minister for Immigration and Multicultural Affairs v Bhardwaj.[129] This is the fundamental misconception that Mr Johnson neither acknowledges, nor is prepared to countenance. The fact of the matter is that the defect notice was upheld at least in ‘minor’ respects by the Magistrate and in a ‘major’ respects in a binding judgment delivered by a Supreme Court Judge, and so it is there that matters must stand.
[129] (2002) 209 CLR 597, [15].
To interfere or make contradictory findings in these civil proceedings, would simply amount to an impermissible collateral attack on the latter decision, and hence amount to an abuse of process: Hunter v Chief Commissioner.[130] This principle was expressed in this way in Rogers v The Queen:[131]
There is, however, another related principle, likewise fundamental, which is embodied in the Latin maxim res judicata pro veritate accipitur. That maxim gives expression to a rule of Roman law which has since been recognized as part of our common law. It expresses the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct. The same idea was expressed in Coke's Institutes in terms of the "incontrollable credit and veritie" of the records and memorials of the judges of the courts of record, which "admit no averment, plea or proofe to the contrarie". That principle is not only fundamental, it is essential for the maintenance of public respect and confidence in the administration of justice. From earliest times, the principle embodied in the maxim res judicata pro veritate accipitur has been seen as necessary to protect against "the scandal of conflicting decisions". Issue estoppel and res judicata or cause of action estoppel are mechanisms which protect against conflict of that kind. However, the principle has an existence beyond those mechanisms so that, for example, it is an abuse of process to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial.
[130] [1982] AC 529.
[131] (1994) 181 CLR 251, 273 per Deane and Gaudron JJ (footnotes omitted).

The principle of finality is often invoked in a criminal context, as illustrated by such cases as R v O'Neill,[132] R v Young,[133] R v Pennant,[134] R v Edwards,[135] R v O'Halloran,[136] R v Carroll,[137] R v Gilham,[138] R v P, NJ (No 2),[139] R v McGee,[140] R v Hi Ngo,[141] R v Joud, Benbrika, Raad & Sayadi,[142] R v Dalton,[143] and R v Hughes,[144] for instance.
[132] [1996] 2 Qd R 326.
[133] [1998] 1 VR 402.
[134] [1998] 2 VR 453.
[135] [1998] 2 VR 354.
[136] (2000) 182 ALR 431.
[137] (2002) 213 CLR 635.
[138] (2007) 73 NSWLR 308.
[139] (2007) 99 SASR 1.
[140] (2008) 253 LSJS 289.
[141] [2010] 1 Qd R 193.
[142] (2011) 32 VR 400.
[143] (2011) 111 SASR 170.
[144] (2015) 93 NSWLR 474.
Arrest on 2 August 2014
The next cause of action relied on by Mr Johnson relates to the events of 2 August 2014. Again he was pulled over by police when driving his vehicle, this time along Flinders Avenue, Whyalla Stuart. On this occasion he was charged with driving a vehicle contrary to the defect notice issued on 14 July 2014. He was arrested and taken into police custody.
Constable Andrew Paterson was on solo mobile patrol duty in a marked police vehicle at about 11.15 am on Saturday, 2 August 2014 driving along McDougall Stuart Avenue, Whyalla Norrie when he observed the same yellow Ford sedan bearing the same registration plates travelling in the opposite direction. He observed the defect sticker on the driver’s side windscreen of the vehicle that was placed there on 14 July 2014. He caught up with the vehicle as it passed Mary Street on McDougall Stuart Avenue and then activated the emergency lights on the police vehicle to encourage the vehicle to pull over. Not seeing any signs of Mr Johnson stopping, Constable Paterson activated his siren, whilst following the vehicle for about 100 m at about 50 kph. Soon after Mr Johnson made a right turn into the One Stop Shopping Centre, drove across the car park passing ‘numerous empty parking spaces’, before finally coming to a stop near a supermarket.
Constable Paterson pulled up immediately to the rear. He observed the vehicle had two occupants including Mr Johnson, who left the vehicle and walked towards the supermarket. Constable Paterson followed on foot. Mr Johnson did not respond when called, so Constable Paterson grabbed hold of his left arm and directed him to stop. When asked for identification, Mr Johnson produced a pension card which satisfied him. Mr Johnson duly submitted to an alcotest upon request, which returned a negative result.[145]
[145] T184.12-.38.
Constable Paterson conducted checks verifying the registration number of the vehicle and confirmed that it was defected on 14 July 2014. When asked the reason for driving, Mr Johnson insisted it was ‘an unlawful defect’ and he also stated that it would be ‘contested in court and cleared by a Magistrate’.[146] At this point Constable Paterson’s intention was merely to issue an expiation notice for the offence of driving a defected vehicle.[147]
[146] TB2, 146.
[147] T185.8-.24.
Whilst looking for paperwork in the boot of the police car for this purpose, he observed Mr Johnson enter the driver’s seat of his car. Constable Paterson approached the vehicle as Mr Johnson closed the driver’s door and placed keys into the ignition. Nevertheless, Constable Paterson pulled the driver’s door open and managed to remove the keys. It was at this point he advised Mr Johnson he was under arrest, having formed the belief that ‘he was going to drive that defected vehicle’.[148] Mr Johnson was directed to get out of the vehicle, but he refused to comply, holding ‘on quite tightly’ to the steering wheel.[149]
[148] T186.9-.17.
[149] T186.19-.29.
At this point in the narrative it is necessary to observe that Constable Paterson’s perception that Mr Johnson was about to drive off in a defected vehicle was a reasonable one based on the objective facts. The probabilities are on the other hand that Mr Johnson was merely intending to engage the ignition so as to activate two cameras in the vehicle. This is what happened on 14 July and there is no reason to doubt he was of the same mindset on this occasion. As he said in the course of his evidence, turning the ignition off ‘would have stopped the recording’ and ‘I wanted my cameras on. That way I have a proper recording’.[150] This much can be accepted.
[150] T63.27-.31, T93.16-1.7.
On all accounts Mr Johnson was then grabbed by the right arm, whilst yelling out ‘help me, I’m being assaulted by police’.[151] At this point Constable Paterson requested assistance, bringing Acting Sergeant Velthuizen to the scene. Mr Johnson continued to passively resist arrest by holding on to the door of his vehicle, but eventually both officers were in a position to place his hands behind his back and handcuff him to the rear, after coaxing him from the vehicle.[152] Police records show that once again he refused to sign an application for release on bail at just before 12.15 pm that day.[153] By 3.25 pm he was however granted police bail.[154]
[151] TB2, 147.
[152] TB2, 149.
[153] TB2, 131.
[154] TB2, 132-134.
There is an allegation by Mr Johnson that in the course of this arrest he was assaulted when his head was pushed against the rear side window of the police vehicle.[155] The objective circumstances do not justify drawing that conclusion, at least on the balance of probabilities. First of all, although he resisted for a time, it is clear that Acting Sergeant Velthuizen persuaded him to voluntarily leave the vehicle, following which there was no further resistance or struggle of any kind.[156] As he said during the course of his evidence, ‘he got out of the car of his own free will and came willingly’.[157] Since the circumstances do not suggest there was any struggle once outside the vehicle, it is highly unlikely that Mr Johnson was treated by police in the manner alleged.
[155] T94.6-.26.
[156] T205.25-.36.
[157] T206.5-11.
Given Mr Johnson’s proven propensity to exaggerate at times and that both three officers deny any such misconduct, this allegation remains an unproven one, on balance.[158] It follows that this aspect of his case fails, and that the police used no more force than was reasonably necessary to effect his lawful arrest on this occasion.
[158] T188.4-.19, T206.12-.16.
Malicious prosecution of 2 August 2014 charges?
By his Second Statement of Claim, Mr Johnson complains the prosecutions relating to the events of 14 July and 2 August 2014 were malicious, in as much as Sergeant Bellamy authorised those charges to proceed to trial. The claim continues to assert ‘the Magistrate making a number of errors including law in the Evidence Act’, and that as a result of being found guilty he was ‘arrested and imprisoned several more times, including a six day stint in Port Augusta prison’[159].
[159] TB1, 16.
As was documented earlier in these reasons, the charges relating to the events of 14 July 2014 did not proceed to trial, as Sergeant Bellamy subsequently formed the view that the production of the business card by Mr Johnson sufficiently complied with s 40V(4) of the Road Traffic Act. Whilst at first considering there was arguably a mere technical breach of the section, Sergeant Bellamy ‘… weighed it up on balance and it wasn’t a fight in the court that I was prepared to have’.[160]
[160] T156.26-.27.
An action for malicious prosecution demands proof of the malicious initiation, or maintaining proceedings for a purpose other than the proper invocation of the criminal law, without a proper cause or on an insufficient basis: A v State of New South Wales.[161] When he initiated the prosecution, Sergeant Bellamy genuinely believed the charges were marginally well founded, whereas on mature reflection he considered Mr Johnson may have sufficiently complied. Not unreasonably, he determined to withdraw both that and the resisting arrest charge. There was nothing malicious, unreasonable or unfounded in making any of these decisions.
[161] (2007) 230 CLR 500, [1], [38]-[41], [55], [58]-[61].
The necessary prerequisite proof to an action in malicious prosecution simply cannot be made out in these circumstances. The conclusion that the act of charging Mr Johnson maliciously, or without reasonable or probable cause, or that it resulted in any damage to Mr Johnson, is simply not open on the evidence. The complaint over serving six days in custody in the Port Augusta prison, is dealt with next.
So far as the charges relating to the events of 2 August 2014 are concerned, any claim to malicious prosecution must fail because the bulk of those charges were not resolved in his favour, in contrast to those relating to the events of 14 July 2014, which were.[162]
[162] Ibid [1].
Arrests on warrants for non‑appearance and non‑compliance
The case for Mr Johnson here is essentially that subsequent orders made in the Magistrates Court were invalid, simply because the original defect notice was invalid and all that transpired as a result, fell with it. As demonstrated earlier, it is without question that the defect notice remained in full force and effect as a matter of law unless set aside, according to the principles of finality. Likewise the actions of courts of law including the Magistrates Court, equally remain valid and effective unless and until set aside by a court of competent jurisdiction: Cameron v Cole,[163] Posner v Collector for Inter-State Destitute Persons (Vic),[164] Jackson v Sterling Industries Ltd.[165]
[163] (1944) 68 CLR 571, 590.
[164] (1946) 74 CLR 461, 477.
[165] (1987) 162 CLR 612, 620.
The course of events to which these complaints relate, begin with the fact that the charge of driving in contravention of the defect notice on 2 August 2014, was remanded to 3 February 2015, when Mr Johnson failed to appear. A warrant of apprehension was issued pursuant to s 58 of the Summary Procedure Act 1921 (SA) and s 18 of the Bail Act. Mr Johnson was arrested on that warrant on 10 March 2015 and yet again refused to apply for bail.[166] A police bail diary entry for that date appears to have been made shortly after 1.00 pm. It records Mr Johnson ‘did not want to apply for bail; declined any questions and will not sign anything’ and that he ‘[w]ants to see the Magistrate’.[167]
[166] TB2, 154.
[167] TB2, 155-156.
The official court records show Mr Johnson appeared before a Justice of the Peace in the Whyalla Magistrates Court at 2.15 pm, when he was remanded with ‘bail to continue’.[168] The matter came before a Magistrate again on 14 April 2015 at 11.30 am, when it was set for pre‑trial conference with bail to continue. Such a conference was held on 16 June 2015 when it appears the charge of hindering police was withdrawn.[169] Proceedings came before the same Magistrate on 4 August 2015 when it was further remanded to 15 September 2015. The file note records ‘deft following up with NDCC as to progress of civil claim re defect’ and ‘for negotiations’.[170] There were further remands, on 18 and 20 November 2015, before the non‑appearance of 8 March 2016 and when the court record was endorsed ‘warrant to issue to lie’ and ‘bail to continue’.
[168] TB1, 7.
[169] Ibid.
[170] TB1, 7.
On 10 March 2016, the court record notes ‘no appearance’ and that at 11.50 am, a Magistrate issued a warrant of apprehension ‘right to be at liberty cancelled … bail revoked’. Mr Johnson appeared ex-custody on 7 September 2016 before the Magistrate who subsequently heard his trial. The court file reads ‘Mr Johnson was encouraged to seek bail and he declined to do so’ and ‘bail not applied for’.[171] He appeared again before the same Magistrate at 9.30 am on 6 October 2016, still in custody when the same Magistrate recalled the warrant and granted him simple bail.[172]
[171] TB1, 8-9.
[172] TB1, 9.
The trial with respect to the 2 August 2014 events proceeded on 6 October 2016. This was when the aforementioned convictions were entered, following an ex tempore judgment. Mr Johnson was ordered by the Magistrate to perform 28 hours of Community Service within six months, and to pay court fees of $295.75, a victim of crimes levy of $480, and prosecution costs of $100, totalling $875.75. He was allowed 28 days to pay, and so it was therefore due for payment by 3 November 2016.[173]
[173] TB1, 9-10.
It appears Mr Johnson left the court without signing the necessary papers or formally entering into the Community Service Order. The Court Registry wrote to him on 31 October 2016 inviting him to attend to ‘remedy this oversight’, pointing out the failure to attend within the next five business days ‘may result in a warrant being issued for your arrest’.[174] Mr Johnson responded in a note on 1 November 2016 addressed to the Whyalla Court Registry in these terms:[175]
The form you allege was unsigned was in fact a VOID document, and when I later attended the registry the NEW document was not made available. The matter is being appealed in the Supreme Court, and as such I will take legal action if an arrest warrant is issued.
[174] TB1, 11.
[175] TB1, 12.
The Department for Correctional Services wrote to him on 21 February 2017 pointing out that he failed to attend for Community Service, directing him to report for that purpose on 27 February 2017, whilst suggesting the failure to do so may result in his suspension from the Community Service program, ‘pending further court action’.[176]
[176] TB1, 13.
An application was subsequently brought pursuant to s 71 of the Criminal Law (Sentencing) Act 1988 for breach of the Community Service Order, supported by an affidavit of 1 June 2017.[177] In a note addressed to the Department of Corrective Services in response to this application, Mr Johnson enclosed his own ‘answering affidavit’, as well as his ‘fee schedule and my bill in the matter please pay within 14 days’.[178] In this he claimed to have attended the Whyalla Corrections Centre on 22 November 2016 ‘under threat of arrest, where I was forced to sign various pieces of paper which I did under duress’. Whilst admitting failing to undertake Community Service, he explained this was because of his ‘appeal before the Supreme Court’, arguing that ‘community work must be put on hold until after the due process of law has completed’. He explained that although the Supreme Court judgment was handed down on 16 June 2017, he had not as yet received a hard copy.[179]
[177] TB1, 14.
[178] TB1, 15.
[179] TB1, 16.
In a note entitled ‘Denial of jurisdiction’ accompanying this material, Mr Johnson advanced the proposition that he could not be ‘compelled, lawfully or otherwise to recognise any court that acts outside of the law’, ostensibly on the basis that the original defect notice was ‘unenforceable within State law by anyone’.[180]
[180] TB1, 17.
For the reasons explained earlier, none of the warrants upon which Mr Johnson was arrested, and none of the remands in custody were vitiated by reason of the supposed invalidity of the original defect notice. Warrants of apprehension were duly issued and executed for the failure to attend court on the respective remand dates, and the remands in custody resulted from self-inflicted defiant acts by refusing to apply for bail, failing to attend court on remand dates, or by failing to obey court orders. No cause of action therefore arises by reason of his arrest or incarceration on Magistrates Court issued warrants at any time.
Issues of damages
General damages
At this point in the analysis, most of the claims made by Mr Johnson must fail for the stated reasons. The court has however upheld the claims of unlawful arrest on 14 July 2014, an assault on account of the threats to taser him, and false imprisonment from the moment of his arrest to the point at which he declined to apply for bail. As these causes of action are intentional torts, it is not contended the Civil Liability Act 1936 (SA) applies to them: State of New South Wales v Williamson,[181] Murn v Beasley.[182]
[181] (2012) 248 CLR 417, [8].
[182] [2017] SADC 46, [15], Civil Liabilities Act s 51.
The various medical records referred to above are admissible for the uses mentioned earlier, Mr Johnson having affirmed what he told Dr Francis insofar as liability is concerned. They are not admissible as business records for the purposes of proving the shoulder pain, headaches and the like were causally connected with the actions of police on that day, other than to show limited short-term consequences. It would be necessary for Dr Francis to be called for that purpose before those notes warrant any probative value otherwise than for these limited purposes: Hillier v Lucas.[183]
[183] (2000) 81 SASR 451, [189]-[194].
It can be accepted however, that Mr Johnson experienced a degree of temporary right shoulder pain as he claimed when consulting Dr Francis on 17 July 2014, because of the evidence of Senior Constable Marshall that he put his knee into Mr Johnson’s right shoulder when effecting his arrest. This no doubt caused him temporary pain and suffering over a number of days, which can be directly attributable to the events of 14 July 2014, as well as bringing on migraine headaches for which he obtained ‘some relief’ by 31 July 2014. The certificate of fitness to return to work on 3 August according to Mr Johnson’s own evidence was unrelated. An assessment of general damages on account of these primary findings is undertaken later.
Economic loss
There is very little material before the court as to employment history, although at times it appeared Mr Johnson held reasonably good work, albeit on his own account, not sustained or consistent.[184] There is very little evidence either as to future economic loss, particularly as he is, as he said, ‘growing older’. No taxation or employer records were produced. His evidence was that he has for some time received unemployment benefits. He was at one time offered work in ‘dangerous places’ which he could not accept for safety reasons.[185] In the scant state of this evidence and given the conclusion of transient consequences, no award is made for past or present economic loss.
[184] T302.6-.8.
[185] T302.8-.13.
Special damages
There is no proof before the court of any special damage medical expenses or need for future medical treatment, and consequentially for future medical expenses. No award can be made for these items in that state of affairs.
General principles
Mr Johnson further brings claims for aggravated and exemplary damages, on the basis of high handed police conduct, by overstepping the mark in unlawfully arresting him, by over forcefully executing his arrest and for subsequent detention in police custody.
General damages for intentional torts encompass physical hurt, curtailment of liberty, injury to reputation and feelings, ‘inconvenience or disturbance of the even tenor of life’, and may include aggravated damages for ‘the manner in which, or the motive for which the defendant did it’: Cassell & Co Ltd v Broome.[186]
[186] [1972] AC 1027, 1124.
Exemplary damages are rarely awarded, but when they are an award is designed to recognise and punish for something more than mere fault: Gray v Motor Accident Insurance Commission.[187] Generally speaking, the distinction between the two different heads of damage is that aggravated damages are ‘compensatory in nature … awarded for injury to the plaintiff’s feelings caused by insult, humiliation’ as well as ‘reprehensible, high handed, malicious or oppressive conduct’: Lamb v Cotogno,[188] whereas exemplary damages mark the court’s disapproval of a defendant’s conduct: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd,[189] White v South Australia,[190] Uren v John Fairfax & Sons Ltd,[191] New South Wales v Ibbett,[192] Johnstone v Stewart.[193] That is, exemplary damages are awarded to punish a defendant for ‘conscious wrongdoing in contumelious disregard of another’s rights’: Whitfield v De Lauret & Co Ltd,[194] Gray v Motor Accident Commission,[195] even when not malicious or even an account of conscious wrongdoing: New South Wales v Riley,[196] New South Wales v Abed,[197] White v South Australia,[198] and Johntsone v Stewart.[199]
[187] (1998) 196 CLR 1, [12].
[188] (1966) 117 CLR 118, 153-154.
[189] (1985) 155 CLR 448, 471.
[190] (2010) 106 SASR 521, [450].
[191] [1968] SASR 142, 144.
[192] (2006) 229 CLR 638, [31].
[193] [1968] SASR 142, 144.
[194] (1920) 29 CLR 71, 77.
[195] (1998) 196 CLR 1, [14].
[196] (2003) 57 NSWLR 496, [138].
[197] (2014) 246 A Crim R 549, [233].
[198] (2010) 106 SASR 521, [441]-[443].
[199] [1968] SASR 142, 144-145.

Accordingly, in the case of aggravated damages an assessment is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant: New South Wales v Ibbett.[200] Nevertheless, exemplary damages are more likely to be awarded in cases of conscious wrongdoing in conterminous disregard of another’s rights: Whitfield v De Lauret & Co Ltd,[201] Gray v Motor Accident Insurance Commission.[202] As similar or indeed overlapping considerations may support an award of damages for aggravated as well as exemplary damages, and as each is not self-contained, it is necessary to remain vigilant to avoid doubling-up when making separate awards for both: New South Wales v Ibbett,[203] New South Wales v Quirk.[204]
[200] (2006) 229 CLR 638, [34].
[201] (1920) 29 CLR 71, [18].
[202] (1998) 196 CLR 1, [14], [20].
[203] (2006) 229 CLR 638, [34]-[35].
[204] [2012] NSWCA 216, [162].
There are numerous occasions on the books where questions of aggravated and exemplary damages in cases of wrongful arrest and imprisonment are analysed and assessed: see for instance White v State of South Australia,[205] Holder v State of South Australia,[206] State of New South Wales v Landini,[207] Hamilton v State of New South Wales (No 13),[208] State of New South Wales v Quirk,[209] Adams v Kennedy,[210] and Cunningham v Traynor,[211] and on appeal The State of Western Australia v Cunningham (No 3).[212]
[205] (2010) 106 SASR 521.
[206] [2018] SADC 83.
[207] [2010] NSWCA 157, [100]-[115].
[208] [2016] NSWSC 1311.
[209] [2012] NSWCA 216.
[210] (2000) 49 NSWLR 78, [36].
[211] [2016] WADC 168, [914], [921], [1080], [1088].
[212] [2018] WASCA 207.
Case comparisons
There are a number of cases bearing some similarities with the present, constantly bearing in mind that damages are assessed on the individual contemporary circumstances of each case, so the measure of damages awarded in one case cannot be regarded as prescriptive of another: State of New South Wales v Riley,[213] Ruddock v Taylor.[214] Furthermore, damages for wrongful arrest and false imprisonment are not necessarily proportionally related to the length of time involved: Zaravinos v State of New South Wales.[215] In fact, a significant component in awards for such damages are usually made on account of the initial shock of arrest: Ruddock v Taylor,[216] Zaravinos v State of New South Wales,[217] Thompson v Commissioner of Police of the Metropolis.[218] Then again, an inference with personal liberty ‘even for a short period of time is not a trivial wrong’: Watson v Marshall.[219]
[213] (2003) 57 NSWLR 496, [142].
[214] (2003) 58 NSWLR 269, [49].
[215] (2004) 62 NSWLR 58.
[216] (2003) 58 NSWLR 320.
[217] (2004) 62 NSWLR 58, [52].
[218] [1998] QB 498, 515.
[219] (1971) 124 CLR 621, 632.
There are also a number of other cases in which comparatively similar periods of unlawful restraint were involved, although each contain other characteristics not present in this case, which influenced the various awards one way or the other, sometimes appreciably, so those differences must be factored into an assessment of damages according to the particular and unique circumstances of this case.
A bare summary of those cases follows:
·State of New South Wales v Coleman [2000] NSWCA 183, 2.5 hours [14]-[19] compendious award of $28,000 for general damages [18];
·Zaravinos v State of New South Wales (2004) 62 NSWLR 58, [50]-[51] – 3.5 hours [51] compendious award of $25,000 [50];
·Coyle v State of New South Wales [2006] NSWCA 95, 2.5 hours [98] – $10,000 compensatory damage for arrest and false imprisonment [100];
·Coleman v Watson [2007] QSC 343, - just under 5 hours and 20 minutes [10], - $20,000 [68];
·Eaves v Donnelly & State of Queensland [2011] QDC 207, [2], [75]-[76] – 1.75 hours [18], general damages $30,000 [75], aggravated damages [76], exemplary damages $10,000 [77];
·New South Wales v Quirk [2012] NSWCA 216, 7 hours, $25,000 [162];
·Majindi v Northern Territory of Australia (2012) 260 FLR 459, [2012] NTSC 25 – 5 hours and 40 minutes [68] $35,000 general damages, $15,000 aggravated damages [73], $40,000 exemplary damages [74];
·Randall v New South Wales [2013] NSWDC 277, [90] - .5 hours [90], $15,000 damages general and aggravated [90], $30,000 exemplary damage [91];
·New South Wales v Abed [2014] NSWCA 419 – 3 hours, $10,000 compensatory damage [226];
·Hamilton v State of New South Wales (No 3) [2016] NSWSC 1311 – 3 hours 45 minutes [208], $8,000 [250];
·Smith v New South Wales [2016] NSWDC 55 – 3 hours 40 minutes, [58], $20,000 general and aggravated damage [266], exemplary damage $15,000 [280];
·Raad v State of New South Wales [2017] NSWDC 63, less than 2 hours $15,000 general damages [261], aggravated damages [265], no exemplary damages [269];
·Costello v New South Wales [2017] NSWDC 152 - 3.75 hours [593], $30,000 general damages for arrest and imprisonment [612];
·Hemelaar v Walsh [2017] QDC 151 – 2 hours $3,000 [138], 5 hours with handcuffing $5,000, and 5 hours without handcuffing $4,000 [138];
·Lule v State of New South Wales [2018] NSWCA 125,– 2 hours and 10 minutes [101], $30,000, general damages wrongful arrest and consequent imprisonment [106];
·Attalla v State of NSW [2018] NSWDC 190 – less than 1 hour [72], $15,000 wrongful imprisonment plus $10,000 for continued detention following arrest [73], $35,000 exemplary damages including a strip search [126];
·Gibb-Smith v State of New South Wales [2018] NSWDC 204, – a few minutes under 4 hours [125], $30,000 false imprisonment [132] & [134].
General damages
In this particular instance, the actions of Senior Constable Neil Paterson were particularly high-handed, cynical, spirited and aggregarious. He exhibited a blatant disregard for Mr Johnson’s liberty and rights and went well beyond the due and reasonable enforcement of the law. It is a recognised policy of the law to ensure that those whose task it is to enforce it, obey it: Bunning v Cross,[220] and Cleland v The Queen.[221]
[220] (1978) 141 CLR 54, 75.
[221] (1982) 151 CLR 1, 8-9.
This arrest was humiliating as it took place in public, was degrading in the degree and nature of the force used included being kneed, placed in a shoulder lock and because Mr Johnson was caged in the police cage vehicle for an inexplicably prolonged period of time: Quirk,[222] Smith,[223] and Raad.[224] Matters were aggravated by the act of handcuffing behind his back: Eaves,[225] Raad,[226] and Lule,[227] and by unceremoniously placing him in a police-cage vehicle: Quirk,[228] Raad,[229] and Smith.[230] The circumstances were on the other hand compounded by Mr Johnson’s later foolhardy resistance.
[222] At [161]
[223] At [18] & [38].
[224] At [260].
[225] At [14].
[226] At [263].
[227] At [101].
[228] At [161].
[229] At [260].
[230] At [18] & [38].
He is additionally entitled to an allowance for the subsequent partial confinement of liberty during the period he remained on bail and for the mental stress of the pending trial before the charges were withdrawn: Landini.[231]
[231] At [43], [104], [105], [110].
In the combined instances an award of $10,000 is made for general damages, unlawful arrest, assault and false imprisonment.
Aggravated damages
A most weighty consideration was the unauthorised and completely unnecessary threats to use capsicum spray which was particularly aggregarious: Quirk,[232] and Randall.[233] It was properly and fairly conceded by counsel for the defendant that the threats to capsicum spray were made without lawful justification.[234] The SAPOL General Order applicable to this situation ‘Operational Safety – Operational Equipment’, is generally designed for ‘defensive purposes’ and to resolve a ‘violent situation’.[235] There was a clear breach of these guidelines in this instance. By parity of reasoning, Senior Constable Neil Paterson’s highly unpersuasive explanation of his understanding of the available powers of arrest after 35 years active service on the beat merits further censure.
[232] At [155]-[157].
[233] At [87].
[234] T14.15-.27.
[235] TB1, 50 at 55-55.
Applying the above principles to the established facts of the case, an award of $6,000 for aggravated damages is appropriate.
Exemplary damages
In some of the above cases involving unlawful arrest and false imprisonment, separate and distinct awards for exemplary damages were made: Quirk,[236] Eaves,[237] Randall,[238] Majindi,[239] Costello,[240] and Attalla.[241]
[236] At [158]-[163].
[237] At [77].
[238] At [90].
[239] At [74].
[240] At [629]-[631].
[241] At [126].
There was very little evidence bearing on the topic of exemplary damages placed before the court. The matter was called on again at the request of the Court for the purpose of taking further submissions on the topic. Counsel for the defendant expressly disavowed calling any evidence as to what if any disciplinary action, counselling or re-education was taken, particularly with respect to Senior Constable Noel Paterson, a stance no doubt in part designed to preserve the confidentiality of disciplinary proceedings maintained by s 44 of the Police Complaints and Discipline Act 2016 (SA). There is then no occasion to invoke s 44(d) thereof to lift the veil of confidentiality.
Be that as it may, the defence thereby takes its chances of an adverse award for exemplary damage if it is properly available consistent with the above principles. As Spigelman CJ explained in New South Wales v Ibbett:[242]
Furthermore, it is not clear why, in this case, the Court should be satisfied with other forms of disciplinary proceedings when there is no evidence before the Court that any action of any significant character was taken. Indeed the evidence before the Court indicates that such action as was taken, by way of a re-education Programme, was plainly inadequate.
Baston JA[243] citing Adams v Kennedy,[244] in support likewise considered an award for exemplary damages was appropriate in the circumstances:
… to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind … do not happen.
[242] [2005] NSWCA 445, [66].
[243] Ibid [278].
[244] (2000) 49 NSWLR 78, [36].
This approach received the unanimous imprimatur of five Judges in the State’s unsuccessful appeal in New South Wales v Ibbett.[245] The position is then that the evidence is to be weighed according to the proof which is in the power of one side to have produced, and in the power of the other side to have contradicted’: Blatch v Archer.[246]
[245] (2006) 229 CLR 638, [50]-[52], [54] and [60].
[246] (1774) 1 Cowp 63, 65 98 ER 969, 970.
By applying the above principles, there are particular features of this case warranting a separate and distinct award for exemplary damages, so as to appropriately and effectively mark the court’s disapprobation and the abject need to censure. These include the failure to apologise or acknowledge wrongdoing by SAPOL (apart from the capsicum spray issue), that no-one is as yet held accountable, the twin threat to capsicum spray contrary to SAPOL General Orders and for consequent training and discipline: Majindi v Northern Territory of Australia,[247] the spirited and demanding attitude adopted by SC Neil Paterson and his complete disregard of the limits of his powers of arrest in the circumstances to effect an invasive and coercive assault: Attala v State of NSW,[248] and the significant fact that the situation was readily and effectively capable of a report or summons, rather than the coercive means of immediate arrest, incarceration and the constraints of bail: Costello,[249] Randall,[250] and Gibb-Smith.[251]
[247] (2012) 260 FLR 459, [74].
[248] [2018] NSWDC 190, [126].
[249] At [33].
[250] At [90].
[251] At [127].
The incisive observations of Nelson DCJ in Randell v State of New South Wales,[252] are instructive and completely apposite here:
If any further explanation be needed for the award of exemplary damages it is this. The rule of law is the bedrock of our society, the basis of our democracy and our civil and political rights. When those who are sworn to uphold the rule of law flout it, damage is done. A citizen looks to a constable of police to use his powers to protect that citizen’s rights. When a constable of police misuse his powers to infringe the citizen’s rights, the confidence of that citizen in the rule of law is shaken. The citizen can become cynical. His trust is [sic] the constabulary is lessened. The prestige of the constabulary is impaired. It is important that the Court demonstrate its purpose to uphold the rule of law and the integrity of our institutions.
[252] [2013] NSWDC 277, [92].
For these reasons, an additional award of $8,000 is made on account of exemplary damages.
Conclusion and Orders
For all the reasons articulated above, Mr Johnson is entitled to an award of general, and aggravated damages for unlawful arrest, assault and false imprisonment of $16,000, plus exemplary damages of $8,000. He is therefore entitled to judgment in the total sum of $24,000.
All remaining causes of action are dismissed, including the remaining allegations of assault and those arising from the events of 15 July and 2 August 2014. The parties are of course entitled to be heard on issues of interest and costs before final judgment is entered.
Attachment ‘A’
Recording of:           Senior Constable Neil Paterson (Police Officer) and Mr Trevor Johnson on 14/7/2014
POLICE OFFICER:          I’m just going to record what we’ve got to say, alright.
JOHNSON:I’m already recording.
POLICE OFFICER:          The time is 10:35am, Monday 14^th of July.   What’s your full correct name?
JOHNSON:It is written on the piece of paper that I just provided you with. Which is all I have to do by law.
POLICE OFFICER:          I require that you submit to an alco test. Blow through that. No, too hard, too hard. A bit softer. [Beeping] That will do.
JOHNSON:Right, am I free to go?
POLICE OFFICER:          Not yet. I require that you submit to a drug screen. Do you understand that? Have you done this before?
JOHNSON:   Once.
POLICE OFFICER:          No worries, I’ll pass that to you, do you see the pink pads, poke your tongue out scrape the pads along your tongue. No scrape them along your tongue from back to front. No worries, that’ll do.
JOHNSON:  Right can I go?
POLICE OFFICER: Not yet.
JOHNSON:  Am I under arrest?
POLICE OFFICER: Just stay there.
JOHNSON:  Am I under arrest?
POLICE OFFICER: No.
JOHNSON:  Am I under arrest?
POLICE OFFICER: You are here until I do this.
JOHNSON:  You’ve done it.
POLICE OFFICER:          No. Airway 032.
RADIO OPERATOR:        Send 032.
POLICE OFFICER:          Roger, I am 603 when you’re ready for details.
RADIO OPERATOR:        Register 0603 send the details.
POLICE OFFICER:          Roger, whisky, Juliette, uniform 314.
RADIO OPERATOR:       And just the location please there 032?
POLICE OFFICER:          Roger, Jenkins Avenue, Whyalla Stuart. Outside number 229 and if there is another patrol close by this gentleman is getting a little hard to get along with.
RADIO OPERATOR:     Roger thanks 032.    Patrol to back up 032 at Jenkins Avenue, Whyalla Stuart, he’s got a customer that’s a little bit unhappy there. Roger outside 229. 331 on Route.
JOHNSON:  Am I free to go?
RADIO OPERATOR:       331 Roger.
POLICE OFFICER:          You are required to tell me what your full correct name is.
JOHNSON:  And so are you.
POLICE OFFICER:          My name is Paterson I work at the Whyalla Police Station.
RADIO OPERATOR:        Which is on Jenkins Avenue.
JOHNSON:  Right, am I free to go now?
POLICE OFFICER:          Nup. Between McDowell and McQueechy.
JOHNSON:  Alright, am I free to go?
POLICE OFFICER:          Sorry between McDowell and yeah between McDowell and McQueechy.
JOHNSON:  Oih.
POLICE OFFICER:       No, you are required by law to tell me… You are required by law to tell me…
JOHNSON:  That’s fucken assault. That is assault.
POLICE OFFICER:          You’re under arrest for refusing name and address. You are under arrest for refusing name and address.
JOHNSON:  I’ll arrest you for not doing your job.
POLICE OFFICER:          You are under arrest. Do you understand that. You are required by law to tell me your full name and address. You refuse. You are under arrest, now get out of the car.
JOHNSON:  I have not refused my name and address.
POLICE OFFICER:          You are required by law to tell me, have you got a licence produce it to me? You are required to produce identification.
JOHNSON:  I have 24 hours to produce a licence.
POLICE OFFICER:          No you haven’t, you are under arrest. Now hop out of the car.
JOHNSON:  Fuck off.
POLICE OFFICER: Hop out of the car.
JOHNSON:  This is assault of course.
POLICE OFFICER: You.
JOHNSON:Oih, get your fucken hands out of my car.
POLICE OFFICER:          Get out.
JOHNSON:Fuck you.
POLICE OFFICER:         Yeh it’s me, starting to resist.
JOHNSON:  Fucken hell it’s outrageous sometimes.
POLICE OFFICER:          Get out of the car or I will spray you. Get out of the car or I will spray you.
RADIO OPERATOR:        Roger 3,2,1.
POLICE OFFICER:          You are required by law to tell me your full correct name.
JOHNSON:I provided you with my name and address and that is set.
POLICE OFFICER:          Get out of the car.
[End of recording: 001_A_015_NCS5_2014_07_14.wav]