Lassanah v State of New South Wales (No. 3)
[2010] NSWDC 241
•30 September 2010
CITATION: Lassanah v State of New South Wales (No. 3) [2010] NSWDC 241 HEARING DATE(S): 15, 16, 17, 18, 19, 26 February 2010; 6 May 2010; 28 May 2010; 3 June 2010; 13 August 2010; 9 September 2010; 16 September 2010 (written submissions), 17 September 2010 (written submissions)
JUDGMENT DATE:
30 September 2010JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Judgment for the first plaintiff for defamation in the sum of $15,000.
(2) Judgment for the second plaintiff for defamation in the sum of $20,000.
(3) Judgment for the first plaintiff for false imprisonment in the sum of $15,000.
(4) Judgment for the second plaintiff for false imprisonment in the sum of $20,000.
(5) The judgment sum referred to in orders (2) and (4) above is to be paid into court for investment pending orders of the Supreme Court or Guardianship Tribunal.
(6) The parties have liberty to bring in Short Minutes of Order reflecting the mathematically agreed calculation of interest on the judgment sums.
(7) Judgment for the first defendant/cross-claimant on the cross-claim of 100% indemnity and contribution against the second defendant/cross-defendant, including an indemnity for the costs of these proceedings.
(8) Defendants pay the plaintiffs’ costs of these proceedings.
(9) Second defendant/Cross-defendant pay the first defendant/cross-claimant’s costs of the cross-claim.
(10) Liberty to apply in relation to costs and interest.
(11) Exhibits retained for 28 days.CATCHWORDS: TORT - defamation, wrongful arrest and false imprisonment - Department of Community Services carer takes intellectually disabled patient to visit a watch store - store employee presses the hold-up button after they leave the premises and police officers stop and search the plaintiffs - whether publication of the matter complained of established - whether the publication was made on an occasion protected by qualified privilege at common law or pursuant to s 30 Defamation Act - whether the privilege was defeated by evidence of malice - whether the defence of unlikelihood of harm was established - wrongful arrest and false imprisonment - whether the police continuing to confine the plaintiffs in circumstances where they had established no robbery or attempted robbery had occurred amounted to false imprisonment - whether the second defendant (the watch store) was liable for false imprisonment - cross-claim between defendants - claims of general, - aggravated and exemplary damages LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 56
Defamation Act 2005 (NSW), ss 20, 30 and 33
Evidence Act 1995 (NSW), s 46
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 20 and 21
Police Act 1990 (NSW), ss 6 and 213CASES CITED: Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9
Allied Pastoral Holdings Pty Ltd v Federal AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27
Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 44 ALR 607; (1983) 70 FLR 447; (1983) 83 ATC 4015; (1983) 13 ATR 825
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379; 13 ALR 249
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; (2004) 204 ALR 193; (2004) 78 ALJR 346; (2004) Aust Torts Reports 81-727; [2004] HCA 5
Bennette v Cohen [2009] NSWCA 60
Browne v Dunn (1829) 3 Sim 23; (1829) 57 ER 909
Bugge v Brown (1919) 26 CLR 10
Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86
Coyle v The State of New South Wales [2006] NSWCA 95
Goldie v Commonwealth [2004] FCA 156
Gray v Motor Accidents Commission (1998) 196 CLR 1
Hage-Ali v The State of New South Wales [2009] NSWDC 266
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Hampton Court Ltd v Crooks (1957) 97 CLR 367
Howe & McColough v Lees (1910) 11 CLR 361
Insurance Commissioner v Joyce (1948) 77 CLR 39
Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278
Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439
Lamb v Cotogno (1987) 164 CLR 1
Lamb v West (1894) 15 NSWLR 120
Lassanah v State of New South Wales [2009] NSWDC 73
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Lewis v Norman [1982] 2 NSWLR 649
Mann v O'Neill (1997) 191 CLR 204; (1997) 145 ALR 682; (1997) 71 ALJR 903; [1997] 12 Leg Rep 21; (1997) Aust Torts Reports 81-436; [1997] HCA 28
Martin v Watson [1996] AC 74
McDonald v Coles-Myer Limited (trading as K-mart Chatswood) (1995) Aust Torts Rep, 62,692
McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; [2007] VSCA 289
McFadzean v Construction, Forestry, Mining and Energy Union [2008] HCATrans 213
Meering v Grahame-White Aviation Co Ltd (1919) 122 LT Rep 44
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; (1982) 42 ALR 487; (1982) 56 ALJR 808; [1982] HCA 50
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Myer Stores Ltd v Soo [1991] 2 VR 597
New South Wales v Delly [2007] NSWCA 303
New South Wales v Lepore (2003) 212 CLR 511
Nominal Defendant v Kostic [2007] NSWCA 14
Papaconstuntinos v Holmes à Court [2009] NSWSC 903
Photi v Target Australia Pty Ltd [2007] NSWDC 265
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266
R v Metropolis Police Commissioner; Ex parte Blackburn [1968] 2 QB 118; [1968] 1 All ER 763; [1968] 2 WLR 893
R v O’Donoghue (1988) 34 A Crim R 397
Riley v New South Wales [2003] NSWCA 208
Roberts v Bass (2002) 212 CLR 1; (2002) 194 ALR 161; (2002) 77 ALJR 292; (2003) Aust Torts Reports 81-683; [2002] HCA 57
Rogers v Nationwide News Pty Ltd (2003–4) 216 CLR 327
Ruddock v Taylor [2005] HCA 48
Ruddock v Taylor (2003) 58 NSWLR 269
Sinclair v Bjelke-Petersen [1984] 1 Qd R 484
Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1; (1987) 86 FLR 343
Speight v Gosnay (1891) 60 LJQB 231
State of New South Wales v Tyszyk [2008] NSWCA 107
State of South Australia v Lampard-Trevorrow [2010] SASC 56
State of Victoria & Ors v Richards [2010] VSCA 113
Sullivan v Moody (2001) 207 CLR 562; (2001) 183 ALR 404; (2001) 75 ALJR 1570; (2001) 22(17) Leg Rep 2; (2001) 28 Fam LR 104; (2001) Aust Torts Reports 81-622; [2001] HCA 59
Tame v State of New South Wales (2002) 211 CLR 317; (2002) 24 NSWCCR 385; (2002) 191 ALR 449; (2002) 76 ALJR 1348; (2002) 23(15) Leg Rep 2; (2002) 36 MVR 1; (2002) Aust Torts Reports 81-672; [2002] HCA 35
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632
Trantum v McDowell [2007] NSWCA 138
Vignoli v Sydney Harbour Casino [1999] NSWSC 1113
Webb v Bloch (1928) 41 CLR 331; (1928) 2 ALJR 282
Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123
Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71
Whittaker & Anor v Child Support Registrar & Anor [2010] 264 ALR 473
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448
Zaravinos v State of NSW (2004) 62 NSWLR 58
Zarth v Williamson [2006] NSWCA 246
Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354; [2007] NSWCA 106TEXTS CITED: Gatley on Libel and Slander (11th ed, 2008)
Ipp JA, “Problems with Fact-finding” (2 September 2006) Lawlink, Supreme Court of New South Wales <PARTIES: First Plaintiff: Michael Lassanah
Second Plaintiff: Aaron Oddie (an intellectually disabled person) by his tutor Michelle Pearson
First Defendant: State of New South Wales
Second Defendant: LVMH Watch & Jewellery Australia Pty LtdFILE NUMBER(S): 5370 of 2008 COUNSEL: Plaintiffs: Mr C A Evatt / Ms L Evans
First Defendant: Mr M Neil QC / Mr D Caspersonn
Second Defendant: Mr R Rasmussen / Ms J PaingakulamSOLICITORS: Plaintiffs: Friend & Co Lawyers
First Defendant: Henry Davis York Lawyers
Second Defendant: Thurlow Fisher Lawyers
JUDGMENT
Introduction
1. The plaintiffs by statement of claim filed on 12 November 2008 bring proceedings for defamation, wrongful arrest and false imprisonment arising out of the circumstances in which, on 10 June 2008, each of them was detained by officers of the New South Wales Police.
The parties in the litigation
2. The first plaintiff is a tertiary-qualified mental health worker who, since completing a degree at the Middlesex College Massachusetts, worked as a mental health worker, first in the United States and then in Australia for the Department of Community Services, by whom he is currently employed as a Residential Support Worker.
3. The second plaintiff suffers from profound intellectual disabilities of unknown cause, although Dr Reddel (whose report dated 2 March 2009 is Exhibit B) considers the causes may include one of the neurodegenerative disorders. Mr Oddie has a “very limited vocabulary” and his basic comprehension of sentences is “very limited” (report of Dr Reddel, page 2). Mr Oddie’s tutor, his mother, gave evidence concerning the degree of his intellectual disability.
4. The first defendant is the State of New South Wales, against whom proceedings are brought by reason of the liability of the State of New South Wales for the conduct of police officers who detained and searched the plaintiffs on the day in question and spoke the words complained of.
5. The second defendant is the owner of a jewellery and watch store in King Street, Sydney, known as “TAG HEUER”.
The pleadings
6. The statement of claim pleads the following two causes of action:
(b) A claim for defamation, brought against the first defendant only.(a) On 10 June 2008, on the footpath outside 119 King Street, Sydney, the defendants wrongfully arrested and falsely imprisoned the Plaintiffs and/or caused the Plaintiffs to be wrongfully arrested and falsely imprisoned; and
7. The text of the slander is:
“The Manager of the Tag Shop said you were intending to steal from the shop. We are stopping you because you guys were in the Tag Shop intending to steal. You were intending to steal. Don’t go into that shop. You were intending to steal.”
8. The words are asserted to have been spoken by the servants or agents of the first defendant, namely police officers, and the words are asserted to have been spoken to both the plaintiffs. The imputations pleaded in the defamation claim are :
(a) (i) The first Plaintiff is a thief.
OR
(a) (ii) The first Plaintiff is an attempted thief.
(c) (i) The second Plaintiff is a thief.(b) The first Plaintiff intended to steal from the Tag Heuer Boutique shop.
OR
(d) The second Plaintiff intended to steal from the Tag Heuer Boutique shop.(c) (ii) The second Plaintiff is an attempted thief.
9. The statement of claim also pleads that at the request of the second defendant’s servants or agents, and because of information given by them to police officers, the plaintiffs were detained on the footpath and gutter outside 119 King Street Sydney for one hour. The plaintiffs were searched and the police officers took and failed to return the first plaintiff’s driver’s licence. This was done in the presence of members of the public who were passing, which caused the plaintiffs humiliation and embarrassment. Aggravated and punitive damages are sought.
10. The nature of the defences to these actions, and the cross-claim between the defendants, are as follows.
The defences of the first defendant to the defamation claim
11. The first defendant denies publication of the words set out in the schedule to the statement of claim and pleads the following defences to the claim for defamation:
(a) a defence of qualified privilege at common law and pursuant to s 30 Defamation Act 2005;
(c) a defence of contextual truth, pleaded against the second plaintiff, Mr Oddie, which was abandoned on the first day of the trial.(b) a defence of “unlikelihood of harm” pursuant to s 33 Defamation Act 2005; and
12. The first defendant’s claim of absolute privilege was the subject of an earlier ruling: Lassanah v State of New South Wales [2009] NSWDC 73.
13. In addition, a defence pursuant to s 213 Police Act 1990 (NSW), excusing the publications on the basis that they were published in good faith, was particularised at paragraph 10(h) of the Amended Defence. It was not proceeded with at the trial and is not the subject of submissions.
A new defence is pleaded after the evidence is completed
14. Although never pleaded or particularised, or raised during the trial, a defence of “coherence” was raised by the first defendant, which required further written submissions. The extent of this defence, which was never pleaded, was extended to all causes of action, including the cross-claim, but later submissions restricted it first to the defamation claim (as an absolute bar) and then as “a matter to be taken into account” in the qualified privilege defence.
15. The defendants’ defences to the claim for wrongful arrest and false imprisonment are as follows.
The claim for wrongful arrest and false imprisonment
16. The first defendant admits the police officers attended the Tag Heuer premises (although denying that they were present for one hour as pleaded), admits that the plaintiffs were detained, asserting that this was lawful pursuant to s 21(1)(b) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and asked for identification and searched but otherwise denies the allegations.
The defence of the second defendant
17. In a defence filed on 18 June 2009, the second defendant denies the matters pleaded in relation to the claims for wrongful arrest and false imprisonment.
The cross-claim between the defendants
18. The first defendant brings a cross-claim against the second defendant in relation to both the defamation action and the false imprisonment and wrongful arrest claim, asserting that the cross-claimant attended the premises by reason of the cross-defendant’s servants or agents activating the hold-up alarm, and that when members of the New South Wales Police Force attended the second defendant’s premises, an unidentified employee of the second defendant (paragraph 7 of the statement of claim) made the following publication:
“Two male persons have been in the shop acting suspiciously. They have been in the shop walking around and trying to lift the glass on top of the display cabinets. There is concern that the persons will steal something or will hold-up the shop. A few months previously a robbery has occurred at the shop in similar circumstances.” A description of the two persons was given to the NSW police.” (“the initial publication”)
19. The cross-claimant pleads that the cross-defendant knew, or should have known that the New South Wales Police would try to locate the plaintiffs, stop and interview them, detain them and republish this publication.
20. It is asserted that the cross-defendant was liable, on the basis that the cross-defendant:
10. Accordingly, it is pleaded that the initial publication was made by the cross-defendant in circumstances where, either:
"(a) was accessory to the publication of the matter complained of;
(b) had “conduced to” [sic: see paragraph 9(b) of the defence] the publication of the matter complained of;
(c) had suggested matter in order that the NSW Police may publish it;
(d) had approved of what was published in the matter complained of;
(e) had concurred in the publication of the matter complained of;
(f) had assented to and/or approbated to the publication of the matter complained of;
(h) had procured and caused the publication of the matter complained of.(g) had assisted and/or encouraged the NSW Police in the publication of the matter complained of; and
(a) the cross-defendant authorised its republication; and/or(c) its republication was intended by the cross-defendant."(b) its republication was the natural and probable result of its publication by the cross-defendant; and/or
21. As to the balance of the plaintiffs’ claim, it is asserted that the false imprisonment was procured by a servant or agent of the cross-defendant activating the hold-up alarm and making this publication, which caused the NSW Police to act. Indemnity is sought pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
The defence to the cross-claim
22. The defence to the cross-claim denies that the cross-defendant knew or should have known that the NSW Police would try to locate, stop and interview the plaintiffs or republish the initial publication, either in the terms alleged by it or at all and otherwise denies the cross-claim.
23. The cross-defendant says (paragraph 9 of the cross-claim) that the publication and conduct of the cross-claimant were both the result of independent actions of officers of the New South Wales Police Force, over which the cross-defendant could not and did not exercise any control.
24. As it was the conduct of the second defendant’s servants or agents in pressing the hold-up button which led to the police coming to the premises and detaining the plaintiffs, it is appropriate to commence with a consideration of the liability of the second defendant in relation to the claim for false imprisonment.
Delays between the completion of the evidence and the handing down of this judgment
25. There was delay between the completion of the evidence and the handing down of this judgment. This was partly caused by the first defendant raising the coherence defence during the submission stage.
26. Further delays were caused by the counsel for the plaintiffs, who on 23 July, in anticipation of decisions being handed down by the NSW Court of Appeal and High Court, wrote to the court and the parties asking for judgment not to be handed down until further submissions concerning the defence of qualified privilege could be made. Those submissions were made by both parties on 16 and 17 September 2010.
The structure of this judgment
27. The raising of a new defence during submissions and the way in which the plaintiffs have approached the analysis of the qualified privilege defence to the defamation claim (including failing to make any submissions on the s 30 defence) have added complexity to what would otherwise have been a relatively straightforward series of issues for resolution. In order to deal with the series of submissions provided by the parties since the hearing in a coherent way, I have structured this judgment, and the disputed issues and the order in which they are dealt with, as follows:
(a) I have first dealt with the factual issues, namely the events inside the Tag Heuer shop and the calling of the police to apprehend the plaintiffs. For this reason, I have made findings of fact in relation to the circumstances in which a servant or agent of the second defendant pressed the hold-up button, and other servants or agents of the second defendant identified the plaintiffs as the persons to be detained by the NSW Police who attended the scene, in response to this hold-up button being activated.
(b) I have next dealt with the liability of the first and second defendant for the circumstances in which the plaintiffs were detained and questioned.
(c) I have next dealt with the liability of the first defendant in relation to the alleged defamatory publications.
(e) Finally, I have dealt with the issue of the quantum of damages for each of the plaintiffs.(d) Since the cross-claim relates to all the claims brought by the plaintiffs against the first defendant, including the defamation claim, I have considered the issues raised by the cross-claimant in the cross-claim.
The demeanour and appearances of the plaintiffs
28. As a general rule, the demeanour and appearance of a person who is a plaintiff in proceedings is a matter about which judges should exercise caution, for the reasons explained by the New South Wales Court of Appeal in Nominal Defendant v Kostic [2007] NSWCA 14 and the article by Ipp JA in “Problems with Fact-finding” (2 September 2006) Lawlink, Supreme Court of New South Wales < For reasons that will become apparent as I set out the factual material in more detail, the appearance and demeanour of each of the plaintiffs in this cause of action is a matter of significance in this case. In relation to the second plaintiff, this was acknowledged to be so by counsel for the second defendant, who read out an apology half way through the proceedings in relation to the first and second plaintiffs, in circumstances described in more detail below, after having seen the second plaintiff in court.
The first plaintiff
29. The first plaintiff, Mr Michael Lassanah, attended high school and university in the United States. He served in the army and navy in the United States, serving on the “USS Ship Blue Ridge”, the flagship cruiser for the Admiral of the US Fleet. He was also a member of the Army Reserve for two years. He was clearly a valued naval officer during his ten years of service. Documents tendered included a letter of thanks from the Congress of the United States, a citation for outstanding performance of duties, and a certificate for the Delayed Enlistment Program (T 26-29).
30. Mr Lassanah came to Australia after meeting and marrying his wife, who is Australian (T 28). He completed a Diploma of Finance at the Australian College QED in July 2005 and enrolled in a Certificate 4 in Mental Health at TAFE to complement the two year course he had completed at Middlesex College in Massachusetts. He has been employed by the Department of Community Services as a carer in the Mental Health Department of Psychology (T 23-24) since 2005.
31. One of the persons for whom he cared on a regular basis was the second plaintiff, Mr Oddie.
32. The first plaintiff gave evidence and was cross-examined and I had an opportunity to observe his demeanour in the witness box. The first feature of the Mr Lassanah’s appearance that is relevant to these proceedings is that he does not have the appearance of a dangerous person. He is a person of average height and slim build, with the erect carriage and neatness of appearance that persons who have spent a long time in the military or naval forces seem to acquire. He speaks with a strong accent; one of the police officers who attended the scene said in his evidence that Mr Lassanah spoke with an American accent (T 379). He was in fact born in Liberia, and emigrated to the United States.
33. The second feature concerning Mr Lassanah’s appearance is that his racial background is immediately noticeable. The first impression given is that he is a black American, although in fact he was born in Liberia and emigrated to America as a young teenager.
The second plaintiff
34. Mr Oddie’s appearance had to be observed by me, and by the parties, from the well of the court, since he was too intellectually disabled to give evidence.
35. Mr Oddie was neatly dressed and well-behaved, but it was immediately apparent from his facial expression and behaviour, and lack of awareness of his surroundings, that he is profoundly intellectually disabled. I will not distress the members of his family by describing this in more detail, other than to say that his intellectual disability is immediately obvious to an observer.
36. However, despite this disability, Mr Oddie’s appearance and demeanour is not that of a dangerous person. He sat very quietly in the courtroom, although at one stage, apparently because he was frightened, he started whistling. It soon became clear that he was very frightened about being in court. Although the case commenced with Mr Lassanah giving evidence, Mr Evatt asked for leave to interpose Mr Oddie’s mother, Mrs Pearson (T 46) so that Mr Oddie could be released from further attendance at the court, for this reason, as his mother explained in her evidence.
37. Mrs Pearson gave evidence (T 47ff) as follows:
“Q. The sad truth of this is that nobody has been able to really diagnose your son. Is that right?
A. That’s right. There’s – there’s multiple diagnoses really. There’s the autism, which was the first diagnosis, and then following that there were other diagnoses: acute, severe, atypical treatment- resistant schizophrenia.Q. You told me during morning tea break that if you went to the United States you could have further diagnoses which you can’t get here. Is that right?
A. Apparently.Q. In any event, you say he has no memory?
A. Short term memory.Q. Has no short term memory?
A. Very short.Q. Does he know why he’s here in court?
A. No.Q. Is he capable of giving evidence?
A. No.Q. Is it difficult, if not impossible, to have a conversation with him?Q. Capable of recalling this incident at Tag Heuer?
A. No, I don’t think so.
A. It’s very difficult.” (T 48).
38. Mrs Pearson explained why her son was frightened:
A. Yes, he said – he said “Why are we here?” And I said “We’re here to go to court”, and he said he thinks he’s done something wrong.” (T 48)“Q. Has your son said to you why he thinks he is here today?
39. In cross-examination, Mrs Pearson said that her son had a lot of difficulty concentrating, and that when he has that difficulty he can become very restless and he can tend to pace around a lot.
40. This description of each of the plaintiffs is important, because it is a key to understanding what happened on the day in question.
The circumstances in which the plaintiffs attended the Tag Heuer shop
41. Mr Lassanah’s job included taking the second plaintiff on excursions as part of the program to help to integrate him within the community (T 32). The Department provided him with a hire car for the purpose of taking Mr Oddie on excursions trips to Darling Harbour, the beach and the like. Mr Lassanah said (T 32): “Aaron has just as much right to go out and do things, you know, just like any other man”.
42. On the day in question, he took Mr Oddie to breakfast at McDonalds, this being Mr Oddie’s choice, and then drove, in the vehicle provided for him by the Department of Community Services, to King Street in the city, as part of Mr Oddie’s day’s activities. While they were in the city, Mr Lassanah decided to look for a gold watch for himself. He already had a gold chain and a gold ring and he wanted to have a gold watch to go with it (T 34), so he decided to visit the Tag Heuer and Rolex shops.
43. During this shopping excursion Mr Lassanah said that he and Mr Oddie were wearing what he called “just normal clothes, something like this” (T 35), indicating the very neat shirt and trousers that he was wearing while giving evidence in the witness box. Mr Oddie was wearing a cap and casual clothes.
44. Mr Lassanah and Mr Oddie had to be “buzzed” into the Tag Heuer shop, which had a security door. When they came in, Mr Lassanah told the staff members, a male and female, that he wanted to look at the watches for sale. He looked at watches in a case and asked to see some of them. This meant the staff had to unlock a case containing watches and take out the watches so that he could have a look at the quality of the watch. Mr Lassanah described the staff as being polite, helpful and very talkative and said there was no sign of hostility (T 38). Mr Lassanah’s own demeanour during this conversation, judging by his description of what was discussed (which was not the subject of cross-examination) and the CCTV tape, was similar to his demeanour in the witness box. I observed he had a courteous manner and a quiet voice, that he listened to questions without interruption and that he answered in a responsive and helpful fashion.
45. Mr Lassanah said he was in the shop for between five to fifteen minutes. Mr Oddie only remained in the shop with him for the first few minutes, but then wanted to go outside to smoke a cigarette. Mr Oddie was then “buzzed” out of the shop, and remained outside the shop for the remainder of the Mr Lassanah’s visit. He can be seen on the CCTV looking at Mr Lassanah through the window. He is not misbehaving in any way. He could not, of course, return to the shop unless he as “buzzed in” by the staff.
46. Mr Lassanah told the salesman he was not interested in the watch he was looking at, and the salesman said something like: “Goodbye, nice seeing you”, to which Mr Lassanah replied: “Okay, if I change my mind, I’ll come, maybe I – I have to go look across the street to see if I see something that I like” (T 39 lines 15-16). Mr Lassanah then left the shop to join Mr Oddie and they went to the Rolex shop, where he looked at watches for another six to seven minutes (T 39). The same process occurred in the Rolex shop; the plaintiffs entered, after the Rolex shop staff unlocked the door. The first plaintiff was shown a watch and they then left the Rolex shop, walking back down King Street towards where he had parked his vehicle. This entailed walking past the Tag Heuer shop.
47. The description given by the first plaintiff of the circumstances of arrest was as follows:
“Q. You just tell us exactly what happened?
A. Yeah. After I seen the cops and … (not transcribable) … you guys were in the Tag Shop?” I said, “Yes. Is there a problem officer?” He said, “Yes. The employee of the shop said that you guys were trying to, to – attempting to steal. Pulling on drawers and trying to pull on the drawers and the glasses in an attempt to steal the watch.” I said, “No. That’s not true, that’s not true. I just went there. I talked to the employees of the store and they serviced me. I left.” He said, “No. The employees told us that you guys were – attempted to steal a watch.” And then he said there might be some item missing. I said, “No, we didn’t steal anything. I just went to see if there was something that I like, so I can buy.” And he said, “Okay, pull over on the side,” and then he search us. And then after they had us sat in the gutter and stuff and while they talked to the employees in the shop.Q. How many police officers were there? Approximately.
A. There were between five and six.Q. Five or six?
A. That’s right. Yes.Q. Now, did they ask you to do anything or did they make you do anything?
A. Yeah, they had us sat on, on the, on the ground and then after they searched us.Q. You went on the ground. Is that right?
A. Yes, sir. That’ s correct.Q. Well, I mean, by ground do you mean – do you mean the footpath or the street?
A. Yes, the footpath, yeah, yeah, I’m sorry, the footpath.Q. The footpath?
A Yes, yes.Q. Well, how did you get on the ground? On the footpath?
A. The cops, they told us to sit on the ground.Q. Were you face down or--
A. Yes.Q. Face down on the ground?
A. Oh, no. Oh, just bottom on the ground.HER HONOUR:
Q. They told you to sit on the ground?
A. Yes, they did, yeah.Q. So you were sitting on your bottom on the ground?
A. Yeah, yeah.HER HONOUR: They weren’t face down, Mr Evatt.
EVATT
Q. You were sitting on the ground?
A. Yeah, yes.Q. And did anyone tell you to sit on the ground?
A. Yes, the police officer.Q. Now, did any of the police call out or say any words?
A. Yes, they did, yes.Q. We were probably given all this but I couldn’t hear it. What did they say? And what sort of a voice was it?
A. They were loud, very loud--Q. A loud voice?
A. Loud voices, yes. “You guys were attempting to steal this--“Q. Just take it slowly. What did they say?
A. They say we were attempting to steal the watches and that we were holding on, holding on, on the glass and drawers attempting to break in and steal.Q. Yes, what else did they say?
A. They said we were not allowed back in the store because we are thief and we are attempting to steal. I mean, we were acting like thieves.Q. Now, you say this was in a loud voice?
A. Yes, it was a very loud – very. It was very embarrassing, very embarrassing. Very embarrassing to see.Q. --standing and looking? Or passing by or what?Q. Were there any people in King Street--
A. Yes, there were hundreds.
A. Yes, sir. There were hundreds of people. Standing, looking, passing by. It was, it was very embarrassing, I mean.” (T 42 line 23 – T 44 line 12)
48. Mr Lassanah was visibly upset as he described this. At T 52, he described what happened as being:
“… Police said – the Manager of the store said that [not transcribable] guy was in his – in the shop, intending to steal watches, and he said “We are stopping you guys because the guy was in the shop, intending to steal”, “Don’t go in the shop. You guys are intending to steal”. And they also said we were holding on the drawer and glasses in an attempt to steal.”
49. Mr Lassanah went on to say that he was told that if he did not co-operate he would be handcuffed and have to go down to the police station, and the police officer had his hand on the handcuffs when he said this.
50. An important feature of this conversation was that the first plaintiff told the police immediately that the second plaintiff had an intellectual disability. When they were told to sit on the footpath, the second plaintiff was attempting to stand up and the police officer said: “Sit down. Do you want to be a tough guy?” To which the first plaintiff said: “No, he has an intellectual disability” (T 54). This was, or should have been, important information to police officers conscious of their obligations under the Law Enforcement (Powers and Responsibilities) Regulations 2005 (NSW) (rr 24 and 27) concerning “vulnerable persons”.
51. It was necessary for the police to take the particulars of each of the persons they had detained. Mr Lassanah provided his name and address and in response to a request handed over his driver’s licence.
52. The contents of Exhibit E and F set out the information the police officers notes in relation to their attendance at the scene. Constable Coates obtained the following information:
“POI: Aaron ODDIE
DOB: 14/02/1979
29 Years Old
Rydalmere Address – Exact unknown
IPED, searched, Nil find
No ID” [Constable Coates explained his reference to IPED at T 342.]
53. Mr Lassanah provided his driver’s licence (T 184). As for Mr Oddie, Constable Ansted explained how Mr Lassanah acted on his behalf:
“Q. What about Mr Oddie? Did Mr Oddie say anything to you?
A. No, because Mr Lassanah I recall spoke on behalf of Mr Oddie and I do recall him doing that, because he did say to me that Mr Oddie had a mental disability or something similar and he spoke on behalf of Mr Oddie.” (T 178)
54. The information in Leading Senior Constable Ansted’s notebook consisted of Mr Lassanah’s address and motor vehicle licence number and the name (misspelled) of Mr Oddie together with an address. Apart from the name and address of the Tag Heuer manager, Mr Guidi, there is no other information in his notebook.
55. It is important to note a significant feature of this investigation – the total lack of any written record of any kind apart from these names and addresses. Not one of the other police officers who attended made notes of any kind of what had been alleged, or what conduct they were investigating, or of any questions that were put to the plaintiffs (in fact, no questions were put to the plaintiffs, according to the unchallenged evidence of Mr Lassanah). The COPS entry, which is Exhibit E, notes only “BONA FIDES CHECKED. SEE BELOW” but there is no further information.
56. The plaintiffs were searched and enquiries were made on the radio. It was at this stage that the police became aware that Mr Oddie’s prior record consisted of Mental Health Act matters as a juvenile (Exhibit G). Mr Lassanah had no prior criminal history.
57. The police officers went inside to speak to the store staff. When the police returned, Mr Lassanah said one of the officers stated: “You guys were intending to steal again. Don’t go in the shop. Don’t talk to no-one. You guys just go home” (T 54).
58. Mr Lassanah replied: “Officer, can you please hear my side of the story?” This police officer said: “No. Listen mate, if you want – if you want to tell your side of the story I think you should say it in Court”, to which the first plaintiff replied: “Okay, okay”.
59. The following occurred at T 54:
“Q. This was said to you after the police had been inside the shop, is that right?
A. Yes, yes. Inside the shop, yes. Because after I said, I said, “But can I talk to one of the – can I talk to the manager and see why he accused me of trying to steal the watch?” But he said, “No, don’t talk to no-one. They don’t want you in the shop. Just stay here.”
60. Having been ordered to go home, Mr Lassanah said he did so, although his driver’s licence had not been returned to him. He said he was so distressed when he left the city that he nearly had a car accident on the way home (T 56). His state of distress in recalling these events was apparent in the witness box (T 56).
The CCTV footage
61. There were considerable problems ascertaining the precise timeline of the CCTV footage because the time on the CCTV footage was incorrect. This has now been corrected by an updated index to the CCTV footage, which is Exhibit 4.
62. The plaintiffs can be seen entering the store at 13:58 hrs (the reading is 13:58:30). The first plaintiff engages in discussion with the male store employee and the second plaintiff remains close to him, although he moves, on several occasions backwards and forwards. On one occasion, according to the camera outside the store and the second defendant’s written submissions, the second plaintiff can be seen to rest his hands on one of the glass cabinets. He then exits the store, at 14:03:34, and can be seen standing around outside the shop, near the front door and front window. It is at this stage that the male shop attendant opens a locked cabinet to show the first plaintiff watches (14:04:39).
63. At 14:04.54, a female shop assistant is seen going to the shop counter and appears to be reaching for something below the counter. The first plaintiff continues to have a discussion with the male shop assistant, and at 14:07:05 leaves the shop and, together with the second plaintiff, turns right and walks east towards Macquarie Street.
64. No evidence was called by the second defendant. Neither of the shop assistants who are seen in the CCTV tape gave evidence although it was made clear to the Court by Mr Rasmussen, counsel for the second defendant, that they were available; he made a decision not to call these witnesses (the hearing was in fact briefly adjourned to suit the convenience of one of these witnesses, who was then not called).
65. The precise time at which the hold-up button was pressed is unclear. Although it is put to me in submissions (paragraph 26, second defendant’s submissions) that this occurs at 14:04:54 – 14:04:57, two minutes before Mr Lassanah leaves, there is no other evidence of this; the female shop assistant can be seen bending down under the register to do something at 14:12:29 and 14:13:09, both of which occur after the plaintiffs have left the store.
66. From 14:07:38, the male store employee is seen at the store entrance, looking down King Street, in the same direction as the plaintiffs had gone, for about the next 2 minutes. And at 14:10:09, he walks down King Street. There is then a gap of about three minutes. The police arrive at 14:13:21.
67. The only question put to Mr Lassanah about his conduct in the shop by counsel for the second defendant was whether, in the course of talking to the sales assistant, Mr Lassanah had asked what the best price might be on a particular watch that was being shown to him, with the intention of bargaining with him in some way (T 146). It was not put to Mr Lassanah that his conduct whilst in the shop was anything other than entirely proper.
68. Mr Lassanah was asked about the conduct of Mr Oddie, and whether he showed signs of being very restless, to which he replied “He did show signs, yes” and that this included pacing back and forth (T 146).
69. While the first defendant has made an attack on Mr Lassanah’s credit, in asserting that the evidence of the police should be preferred as to the words actually spoken and the circumstances of arrest, no suggestion has been put that the Mr Lassanah’s description of his own conduct in the shop, or of the conduct of Mr Oddie, was dishonest or inaccurate. Nor was anything put to Mr Lassanah during cross-examination that the conduct of either of them warranted the pressing of the hold-up button. This brings me to consideration of the issue of the police evidence generally and of Mr Lassanah’s credit.
The evidence of the police
70. The plaintiffs submit (written submissions page 9) that the police officers, who all stationed at The Rocks, “may have put their heads together for a cover up” on the basis that there were the following glaring discrepancies in their evidence. This is strongly disputed. I shall deal with each of the matters the plaintiffs raise in submissions:
(a) Whether or not the plaintiffs were made to sit on the footpath or with their feet in the gutter : Constable Coates agreed that Mr Oddie was made to sit down, and that he was told to sit down because it was “an officer safety technique that we use” (T 347). He said he was unable to remember whether Mr Lassanah was sitting down as well. Constable Coates was the police officer whose role in the investigation was to supervise the plaintiffs. His memory as to his own activities is more likely to be accurate than the recollection of his colleagues. However, the other police officers were insistent that the plaintiffs were not made to sit down (Ansted – T 178, 225-226; Axford – T 331-332, Coates - T 344; Gibson - T 372, 378). This insistence, in circumstances where the police officers made no notes of the investigation in their duty books or notebooks beyond the names and addresses, or otherwise kept any written record of the event, is submitted by the plaintiffs to raise a doubt as to police credibility and “suggests a cover up” (written submissions page 9). For reasons discussed in more detail below, I have accepted the evidence of Mr Lassanah that he and Mr Oddie were made to sit down, and I do not accept the evidence to the contrary of these officers.
(b) The failure to recognise that Mr Oddie suffered from an intellectual disability : One of the police officers, Constable Axford said that Mr Oddie’s intellectual disability “was pretty easy to pick” (T 338). However, Constable Ansted said “he looked like a normal person” (T 292) and Constable Lentfer denied that any intellectual disability could be observed (T 312-313).
Constable Lentfer said he was able to have a conversations with Mr Oddie:
“Q. For example, what did Mr Oddie say when you asked him to--
A. I can't remember exactly the words that were said, but it was just questioning why we had stopped them and--Q. Yes, but can you remember each one by each one? That's the thing. If you can say, "Mr Oddie said this, and Mr Lassanah said that." If you can just remember--Q. This is Mr Oddie said this.
A. Both of them were.
A. I can't remember exact wording, but what they were trying to say was I can't search them. I have no reason to search them. I'm invading their rights. I can't touch them. I'm not allowed to go into their pockets.” (T 301)Constable Coates said he could not recall what Mr Lassanah or Mr Oddie said, but said they were “argumentative” (T 340-341):
It is clear that there must have been some conversation with Mr Oddie in order to obtain the inadequate particulars in Constable Coates’ notebook of his address (Exhibit F) and the address in Leading Senior Constable Ansted’s diary (Exhibit F). However, Constable Ansted agreed in cross-examination that “Mr Lassanah I recall spoke on behalf of Mr Oddie and I do recall him doing that, because he did say to me that Mr Oddie had a mental disability or something similar and he spoke on behalf of Mr Oddie.” (T 178). I also note, in relation to this conversation, that it was never put to Mr Lassanah that he refused to permit the search, or that it was an invasion of his rights. The likelihood of Mr Oddie being able to articulate an invasion of his rights is implausible.
“Q. Do you recall whether anything was said about identification?
A. Yeah.Q. What was said?
EVATT: Maybe you should just ask what was said.
NEIL
Q. What was said?
A. I don't recall exact words.Q. Do you recall hearing and understanding any words said by Constable Ansted to the men?
A. Yes. Constable Ansted told the men why they were being stopped.Q. Did you hear anything the men said?Q. Can you recall what he said?
A. Not exact quotes, but I do recall that his explanation was that he'd been told that they were possibly attempting to steal something out of that shop; the TAG Heuer shop.
A. I can't recall what they said, but I remember they were argumentative.”
In other words, Constable Axford knew from observation, Leading Senior Constable Ansted was told almost immediately by Mr Lassanah about Mr Oddie’s disability, while Constables Lentfer and Coates denied any disability and claimed to have had conversations with Mr Oddie.As to the practical reality of Mr Oddie having a meaningful conversation with these police offices, I have the advantage of the report of Dr Reddel (Exhibit B):It should have been apparent to each of these police officers that they were dealing with a person who is incapable of giving his address coherently, and Mr Lassanah, who is doing so on his behalf, was his carer. In fact Constable Lentfer said that Mr Lassanah identified himself as Mr Oddie’s psychiatrist, or psychologist, and carer (T 318).
“On examination, he has very limited vocabulary, saying “Yeah” a lot. Occasionally, he uses short sentences. There is some stereotypical thought. He quite likes rapping knuckles with myself while saying “Life”. He has occasional spontaneous movements but little by way of chorea. He has a flat affect. He was completely disoriented to place and time. Immediate recall was 2/3, short-term memory 0/3, and no recall of being asked to do so. He has no functional mathematics. There was some confabulation, for instance whether he has been here before, whether he had met me, and a few other details. He can count and did not display any field problems. Basic comprehension of sentences was very limited, saying that a daffodil was purple, before correcting when I asked him again to yellow; and saying “slug” when asked what animal has a shell. What aspect of this is simply impulsiveness is hard to tell. I could not get a fundal view. There were no long tract signs.”
As noted above, examination of the police notebook confirms that Mr Oddie was unable even to give the police officers his address. It should have been obvious that he was intellectually disabled.They were also told this from the very beginning by Mr Lassanah. In his own evidence, Mr Lassanah said that (at T 54) when he was told to sit down (which was at the very beginning of the incident), he informed the police of Mr Oddie’s intellectual disability:Finally, the information the police officers received over the radio indicated that they were dealing with a person who had a prior history of Mental Health Act matters which should have triggered an alarm for them that they were dealing with a person with mental health issues.
“Q. Now, you said something in the last answer about "sit down"?
A. Yes.Q. Is that what the police said?Q. What was that all about?
A. Because Aaron has an intellectual disability and Aaron was attempting to stand up and he said, "Sit down. Sit down."
A. Yes. "Sit down. Do you want to be a tough guy?" I said, I said, "No, he has an intellectual disability."”
Police officers receive training to enable them to identify person who are vulnerable persons. They are aware of the need for a support person to be present during investigations and enquiries and this entitlement is not limited to a formal interview or to a period in which an alleged offender had been arrested or is in custody. It applies to “any investigative procedure”: Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), r 27. The police officers’ denial of knowledge of Mr Oddie’s intellectual disability is submitted by the plaintiffs to be further evidence that the police “put their heads together”. It is hard to understand how these experienced police officers could have overlooked so many clues.(c) The discrepancy concerning the extent of conversation and volume of the words spoken by the police : The police claimed that the two plaintiffs were argumentative, wanting to know the reason for their arrest, and was speaking in loud voices (evidence of Leading Senior Constable Ansted at T 224; Constable Coates T 347). Given Mr Oddie’s almost complete inability to speak, this is implausible. So is the claim by Leading Senior Constable Ansted that he was speaking probably “a bit lower than an ordinary voice” (T 255). I have set out below, in more detail, my reasons for accepting the evidence of the plaintiffs, but the similarity and precision of the evidence of tones of voices (especially in circumstances where Constable Coates, for example, could not remember what was said by the plaintiffs in their loud voices – T 341) is implausible.
(e) The conduct of the police towards Mr Lassanah in which Mr Lassanah was further humiliated by having his driver’s licence taken from him and not returned to him : Mr Lassanah said in examination in chief (T 63):(d) Description of the scene in King Street : Leading Senior Constable Ansted said that it was not that busy in King Street at the relevant time (T 256) and he did not see anyone standing around looking. Constable Lentfer similarly denied that people were standing around looking (T 315). Mr Lassanah’s evidence was that there were hundreds of people “standing, looking, passing by” (T 44). The CCTV footage clearly demonstrates this; 312 people were counted as having walked past (Exhibit H). The police had been called to an armed robbery scenario and would have wanted members of the public to keep away. Claims of speaking in a soft voice and that not seeing any bystanders at the time, in the context of one of Sydney’s busiest streets just after the end of the lunch hour rush period, are implausible.
“Q. Now, did the police take any - sorry, that's leading. Did anything happen to a document you had on you with the police?
A. Well, they took - one the officer took my driver's licence, and I called him, like, for years and for months, he refused..(not transcribable)..Q. They took your driver's licence at the scene of the--
A. Yes, yes.Q. --incident?
A. Yeah.Q. And when did you get it back?
A. Never.Q. You never got it back?
A. Never, no.Q. Have you asked for it back?
A. I did, I did.Q. How many times?
A. I lost count, I lost count. All the time I call him.Q. And how do you feel about that?Q. And they've never returned your driver's licence?
A. Never.
A. I feel like he held something against me. I don't know why.”
It was put to Mr Lassanah in cross-examination that he was lying about this, and that his driver’s licence had not been retained. Mr Lassanah said the following under cross-examination (T 67-68):
“Q. Did the policeman also say to you anything about asking you for identification?
A. Yes.Q. You say he didn't mention any law on which he was asking you to wait.
A. No, no.Q. Did you provide some form of identification to him?
A. Yes.Q. Was that a driver's licence?
A. Yes.Q. Did you give it to Officer Anstead?
A. Yes.Q. Did you see if he passed it on to another officer?
A. No, because my back was turned. My back was turned.Q. Did you ask your solicitor, within a few days of these events, to request the police to return your licence?
A. Yes.Q. Did it not come back to you within a few days?
A. No.Q. Are you sure of that?
A. I'm positive.Q. What did you do about getting another licence?
A. As a matter of fact, a few of the..(not transcribable)..I bought a car and it's sitting there - purchased this car, I went and got another driver's licence, and I do have proof - the guy that sold me the car, he took me down to the RTA, and we got another driver's licence.Q. How soon after the events was that?
A. I'm not sure. A week or two.Q. Did you keep asking your solicitor to make an inquiry?Q. Could you have got your original licence back after going to get the new car?
A. Maybe. I didn't receive anything from the coppers.
A. I did.”
After Mr Lassanah mentioned a number of letters that was sent to the police by his solicitor, this allegation was withdrawn. This correspondence was not tendered, but it was not tendered because of this concession by Mr Neil QC (at T 84):
“NEIL: One thing I just want to deal with, I hope, shortly, before we play the tape, your Honour. Could I just put something?
Q. Mr Lassanah, I want to withdraw any suggestion that you got back your licence. My client accepts you did not receive your licence back. Do you understand that?
A. Yes.”
Mr Lassanah was told to go home by the police in circumstances where they must have known that to go home he needed to drive his vehicle. Whether or not Mr Lassanah was deprived of his motor vehicle licence by oversight or carelessness, as was asserted by Constable Lentfer (T 302) the failure to return this licence, especially after requests from Mr Lassanah’s solicitor, is not to the credit of either Constable Lentfer or any other police officers involved. Nor was it to their credit that Mr Lassanah’s account of having his licence removed and not returned was challenged in the way it was.
The first defendant’s submissions as to the credibility of the police
71. The submission as to credibility of the police made at page 8 of the first defendant’s written submissions is as follows:
“It is submitted that the police acted appropriately, in accordance with their duty. As Sgt Gibson said they acted professionally. They were highly credible. Their evidence was clear, honest and reliable. It is submitted that it should be found that the Plaintiffs were in no way mistreated, they were not ordered to sit in the gutter, nor threatened with handcuffs and the police did not use loud voices.”
72. Although some brief examples were then given, this is essentially the totality of the submissions of the defendant on this issue.
73. Submissions concerning the credit of witnesses are issues which need to be dealt with carefully by the court, for the reasons explained by the Court of Appeal in Nominal Defendant v Kostic, supra. The Court of Appeal’s warnings concerning the manner in which evidence on credit should be addressed by the court apply to the parties as well as to the judges whose judgments are dependent upon their submissions. A submission that a witness’ evidence is “highly credible”, “clear” or “reliable” is not of the same assistance to the court as a careful analysis of the evidence in order to answer the specific issues raised by the plaintiffs, discussed at [70] above.
74. The first defendant submits that any discrepancies in the police evidence are simply “indications of honest witnesses who have not put their head together” (first defendant’s written submissions, paragraph 28). This is coupled with the invitation to me that, as I have “seen the police in the witness box and heard Sgt Gibson on the telephone”, I could rely upon the police officers’ demeanour in the witness box to disregard the matters outline by the plaintiffs in submissions. I am satisfied, however, that the matters raised by the plaintiffs cast doubt upon the accuracy and reliability of the police evidence, particularly in circumstances where it is not corroborated by contemporaneous police records of any substance.
75. There are other, less important, matters concerning the issue of credit of police. The first of these is whether or not there was racial disparagement of Mr Lassanah, who is black. It is the case that Mr Lassanah gave no evidence of any act or word of disparagement. Leading Senior Constable Ansted’s answer at T 219 that he was “impartial to all cultures” misses the point; the fact that Mr Lassanah was black was a reason, albeit a very small one, for caution, especially in circumstances where it was clear from the first few moments that no robbery or attempted robbery had taken place.
76. The first defendant’s explanation for the police officers missing the fact that Mr Oddie was intellectually disabled is:
“The fact that Axford thought the Second Plaintiff had some problem of mental capacity merely means that she was more perceptive than the men. In any event the Second Plaintiff was not mistreated.” (first defendant’s written submissions, paragraph 23)
77. I assume that this is simply unfortunately drafted, but if it is seriously submitted that Mr Oddie’s intellectual disability was only able to be picked up by Constable Axford because she was a woman, then that is a submission which I reject.
The CCTV footage
78. An issue not raised in the plaintiffs’ list of matters in written submissions, but referred to in the evidence and in oral submissions, is whether or not any of the police officers actually watched the CCTV footage of the plaintiffs in the Tag Heuer shop.
79. The only officer who claimed to have looked at the CCTV footage was Sergeant Gibson, who spent a total of five and a half minutes in the shop, in two visits. Mr Evatt put to Sergeant Gibson:
“Q. Can I suggest you did not see any videotape in that shop?
A. No. I did” (T 376)
80. Sergeant Gibson gave evidence over the telephone, because he was at home suffering from an injury. He had little or no recollection of the events in question and was unable to answer many of the questions. His assurance that he had seen the videotape is not supported by any contemporaneous record he made in his notebook or police diary. The timing of events, and the precision with which we can identify exactly how long the police officers were at the premises, mean that it would have been impossible for Sergeant Gibson to have seen the whole of the CCTV footage.
81. The sequence is as follows. Sergeant Gibson is seen at the western front of the shop for a few seconds at time interval 14.20.33 and he enters the shop at 14.21.03, leaving the shop four and a half minutes later at 14.25.36. He re-enters the shop at 14.27.03 for one minute only. It is not suggested he looked at the CCTV during this second brief visit. If he had, it would have been very brief. There is no evidence before the court as to how he was able to view what was on the CCTV, if I were to assume that the staff had been able to stop one of the cameras and wind it back to the incident in question.
82. If I deduct one of the four and a half minutes that Sergeant Gibson is in the shop for the first visit, to allow for introduction, discussion and the setting up of the film, that means that he had a little more than three minutes to watch the film from one or more of the cameras (I was not told which tape he saw). In view of Sergeant Gibson’s inability to remember events and failure to make notes at the time, I can only speculate as to what, if anything Sergeant Gibson saw.
Lack of corroborative police documentation
83. A further oral submission made by the plaintiffs is that, although three police cars attended the scene and the matter was a serious and urgent one, there is no contemporaneous note of any statement or other information made by any of the police other than the names of the parties.
84. Constable Coates’ notebook (Exhibit F) notes only the name, date of birth and age for the second plaintiff, noting his address as “Rydalmere address – exact unknown”, an indication of the degree of lack of communication that existed between the second plaintiff and the police officers who searched him. There is a note of “Searched, nil found” and “No ID”.
85. Leading Senior Constable Ansted recorded the name and address for both plaintiffs as the persons of interest, and the name and address of the store manager, Mr Guidi.
86. The Tasking Sheet notes that between 2.50 pm and 3.10 pm they were answering an alarm at the Tag Heuer premises; there is a second sheet for Constables Lentfer and Axford, giving the times as 14:55 to 15:08.
87. Evidence was given by the police as to what occurred. However, only Sergeant Gibson saw the CCTV. The following occurred in cross-examination:
“Q. What were the persons doing when you saw the screen?
A. I don’t recall. I can’t remember.Q. Well, did you see them doing anything wrong?
A. From what I recall and what I was told, I agreed with the Manager that the two males were acting suspiciously at the time in the store. But I don’t recall the exact actions they were doing.Q. Was that because of what you were told by the Manager, or because of what you saw, or both?
A. Both.Q. Well can you describe one thing you said you saw to justify your view that the men acted suspiciously?
A. No, I can’t. I can’t recall.Q. When you saw the screen were both men in the shop, or only one man in the shop?
A. I don’t recall.Q. It would have to be both, wouldn’t it, because you said you saw the two men?
A. I don’t remember, sorry.Q. You haven’t got a clue as to what you saw, have you?
A. I don’t remember due to the length of time what I saw on the footage. I remember viewing footage and I remember forming the opinion that I agreed with the Manager, but I can’t tell you exactly what they were going in the store, no.” (T 377)
88. Particularly relevant is the lack of any inquiry of the plaintiffs as to what they were doing in the store or how they had conducted themselves.
89. The police were aware of Mr Lassanah’s occupation, although it was not noted in their records; Constable Lentfer recalled (T 303) being told that the first plaintiff was the second plaintiff’s “psychologist or psychiatrist”, although he thought this happened towards the end of the enquiries. He clearly took the first plaintiff for a professional person.
90. I reject the submission of the second defendant, that there is sufficient material for me to make a finding that the perception of the plaintiffs’ behaviour as acting suspiciously and trying to manipulate the cabinets warranted the pressing of the hold-up button. Not only is there no evidence of this on the CCTV, but it was never put to the first plaintiff in cross-examination. .
91. Viewed objectively, there is nothing in the CCTV footage to explain the conduct of the second defendant’s servants or agents. There is no evidence of the plaintiffs attempting to lift the lids of cabinets. The reasons for these allegations being made against the plaintiffs are unexplained, as are the reasons for persisting with these claims after the police arrived.
Whose version of events should be accepted?
92. The first defendant in written submissions (paragraphs 18 – 34) submits that I should not accept the evidence of Mr Lassanah, the first plaintiff, as to what was said. This is partly an attack on his credit and partly an assertion that his recollection was “faulty” (paragraph 18). In order to answer these claims it is necessary to refer, once again, to the evidence discussed at [70] above.
93. The difficulties with Mr Lassanah’s evidence set out in the first defendant’s written submissions are:
(a) There are differences between his answers to interrogatories and his evidence in court, in that he said that the police only ever referred to the manager of the Tag Heuer shop once, and he does not refer in the answers to interrogatories to asking the police if he could go back to the Tag Heuer shop and ask why they called the police.
Mr Lassanah’s evidence was consistent with the substance of the interrogatories. It is not the purpose of interrogatories to set out the full “I said – he said” text of what was said. The portion of Mr Lassanah’s evidence concerning asking the police if he could go back to the Tag Heuer shop was not part of the matter complained of, but that makes no difference to the sting of the imputations.
(b) Mr Lassanah gave evidence about handcuffs (T 53 line 16) which the police “denied or it wasn’t put to them” (written submissions, paragraph 19(c)) and is “also wrong that he was forced to sit in the gutter”.
As to sitting down, as set out at [70] above, all but one of the police officers, Constable Nathan Coates, gave evidence that the plaintiffs were not ordered to sit down. The one officer who did give evidence (about the second plaintiff being told to sit down) was this officer, and he was in charge of keeping the plaintiffs detained while the other officers made inquiries. Constable Coates’ evidence was as follows:The police officers did deny that they said they would use handcuffs (T 183, 316, 331, 344) but it is not in dispute that they were carrying them. This is a matter where the evidence is in dispute, but the fact that it is in dispute does not mean that Mr Lassanah’s evidence should be rejected.
“Q. Did either of the men at any stage - did either of them sit down?
A. I do have a memory of Mr Oddie sitting down.Q. For how long?
A. I couldn't tell you exactly.Q. Whereabouts did you see that happen?Q. Can you say for what portion of the whole events it was?
A. It would have been less than half I'd say.
A. Up against the wall and the glass door.” (T 344)
Mr Evatt put to Constable Coates that both plaintiffs were sitting down, and that they were doing so because they had been ordered to:
“Q. Mr Oddie was sitting down.
A. For a part of it.Q. That's because he was told to sit down.
A. Yes. It's an officer safety technique that we use.Q. Mr Lassanah was also told to sit down.
A. I can't remember.Q. Well, he was sitting down. You can remember that.
A. I remember Mr Oddie sitting down.Q. But you also remember Mr Lassanah sitting down.
A. No, I didn't say that.Q. Do you deny he was sitting down?Q. You didn't say, I know, but you remember it.
A. No.
A. No. I just don't remember either way.” (T 347; bold type added)
This was repeated at T 351:
“Q. What about if you answer what was your understanding of the information that meant the police said they can go? What did you understand?
A. Well, I wasn't involved - my main role there was an observer, okay. Leading Senior Constable Ansted was doing the main part of the investigation, so I did not have a great deal of knowledge. My job there was to watch the two plaintiffs, for safety reasons.EVATT
Q. What safety reasons?
A. Whenever police deal with somebody on the street there's officer safety. We have to look out for each other and ourselves. We don't know who we're dealing with each time.Q. That's why they're often directed to sit down, is it?
A. Correct.Q. Well, at least one of them was.Q. And they were both directed to sit down on this occasion?
A. I don't remember.
A. I remember one was sitting down. ” [emphasis added]
I accept Mr Lassanah’s evidence that he and the second plaintiff were ordered to sit down. I also accept that it was in this context (namely being ordered to sit down) that he was told that if he did not comply then handcuffs would be used. Mr Lassanah said that he accordingly sat down. He said he was told to sit on the footpath with his feet in the gutter, and since the rest of his evidence is correct, I am prepared to accept this. The “alcove” referred to was some space in front of the wall of a shop on King Street, and the CCTV clearly shows a number of passers-by walking in this area.Another matter asserted to be incorrect is that the statement Mr Lassanah said the officer in question made when they were told to sit down, namely the statement “Do you want to be a tough guy?” (T 54 line 14), to which Mr Lassanah replied, on Mr Oddie’s behalf, that he was intellectually disabled, “was not put to any of the police” (paragraph 19(e) of the submissions).
This conversation was put, albeit partially, to one of the police officers that he was told right at the outset that Mr Oddie had an intellectual disability:Mr Lassanah did not know the identity of the police officer to whom he spoke these words. This would put the obligation onto counsel for the plaintiffs to put this to every officer. In addition, counsel for plaintiffs was not obliged to put it to these officers, as Mr Lassanah was not cross-examined about this statement.
“Q. So are you saying that nobody asked them any questions for the period of time from 1451 to 1459, no questions were put to them?
A. Well, there would be no reason to ask the question because he looked like a normal person. To look at - he didn't really speak, so it wasn't until Mr Lassanah mentioned at the time the CNIs and the identification was being requested, during that conversation, that he mentioned - of course he kept speaking over the top of Mr Oddie, who I believe spoke generally okay, he spoke on top of him and made the point that he had an intellectual disability.EVATT
Q. No, no. Right at the outset when you first stopped him, soon after.Q. Didn't Mr Lassanah tell you that right at the outset ?
A. At that point in time, that's what he said.
A. No, I don't believe so, no.” (T 292 – 293; emphasis added)
Whether or not the police officer said to Mr Oddie “Do you want to be a tough guy” pales into insignificance compared to the importance of Mr Lassanah’s explanation for Mr Oddie not appearing to understand why he should obey the command of this police officer to follow his orders.(c) Mr Lassanah gives “unacceptable” evidence that about 50 – 100 persons watched and heard the discussion between himself and the police. It is asserted that if there was such a crowd of persons it would be seen on the footage. The submissions state at paragraph 19(g) that Mr Lassanah “claims (wrongly it is submitted) to be accurate about these figures”
Mr Lassanah was giving a general estimate. In fact the footage on the CCTV camera supports the plaintiffs’ claim as to the number of persons going past as being more than this. An employee of the plaintiffs’ solicitor made a statement (Exhibit H) carefully counted, on the CCTV footage, the number of passers-by for the seventeen minute period during which the CCTV footage covers the detention of the plaintiffs. A total of 312 persons walked past.
The first defendant’s submissions also do not take into account that the footage for the security camera for the precise place where the plaintiffs were detained is not available. The CCTV footage from the shop shows the inside of the shop and the passers-by are seen in the distance walking past who would have been able to see the plaintiffs.
King Street, even after lunchtime, is a busy street. The first plaintiff’s estimate that of the more than 300 persons who walked past, 50 – 100 slowed down or looked at him is not “unacceptable” evidence. The assertion by Mr Lassanah that “all” these 50 – 100 people were just standing there looking (T 44 line 46) is understandable in such circumstances, and is not “difficult to believe” (defendant’s written submissions, paragraph 19(n)). Similarly, Mr Lassanah’s belief that people were avoiding him 100 yards away for 5 to 6 minutes after being released is an understandable perception by a person who has just been stopped and searched by police officers and made to sit on the footpath. Mr Lassanah’s heightened awareness of people avoiding him is not a perception that is “difficult to believe” and one which casts doubt on his evidence (written submissions paragraph 19(o)).
(d) The next issue upon which it is asserted Mr Lassanah’s evidence should not be accepted is because statements he said he made, such as “Can I talk to the manager” and “You guys just don’t go in the shop, just go home” were not put to the police officers in cross-examination.
Mr Lassanah did not know which police officers he was speaking to. In addition, Mr Lassanah was not cross-examined about this evidence, which was not challenged during cross-examination.
Ideally the cross-examiner could have put all these statements to all the police, but the obligations of cross-examiners to put every statement to every witness in such circumstances need to be seen in light of s 46 Evidence Act 1995 (NSW) and s 56 Civil Procedure Act 2005 (NSW) and the obligations to put Browne v Dunn matters only ( Browne v Dunn (1829) 3 Sim 23; (1829) 57 ER 909) where the evidence is in dispute: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 44 ALR 607; (1983) 70 FLR 447; (1983) 83 ATC 4015; (1983) 13 ATR 825. Mr Lassanah can clearly be seen pointing a finger at the manager as he walks past the store after he is released, which I consider corroborative of his request to speak to the manager and his warning to the police that he would take the matter further, as is the evidence about the police telling him they were not interested in his side of the story, and that he could tell his story to the court.
(e) The final matter raised by the first defendant is that at T 40 line 21, Mr Lassanah said that during his visit to the shop he and Mr Oddie were the only customers, while the CCTV footage shows other customers entering during this time (submissions, paragraph 19(p)).
When the CCTV tape was shown in court, I asked who these people were, and made the following observations of the tape content:Mr Lassanah is correct in that he was the only customer being served by the Tag Heuer staff. Other persons are seen entering and leaving the shop, but they all walk past the plaintiffs and the shop staff.
“HER HONOUR: Now, who is this lady coming in? A customer? Well, she's walked straight in and down the back of the shop. And who's this fellow? Who's that fellow now? Who's this - no? Well, who are these other people who are in the shop?EVATT: Who would know.
HER HONOUR: Well, they don't seem to be being served. They seem to have walked right down the back.
EVATT: ..(not transcribable)..sold too many watches.
HER HONOUR: Is there another camera.
RASMUSSEN: Two others.
HER HONOUR: Is this a customer?” (T 90)EVATT: Who's that?
This was explained to the court by Mr Rasmussen as follows:
“HER HONOUR: Who's this coming in now, a customer or a shop assistant, or aren't I to know?NEIL: Your Honour would have to ask Mr Rasmussen. I can't help on that.
HER HONOUR: It's difficult to see the film and not understand what's going on. Just tell me if anybody relevant comes or go.
RASMUSSEN: I understand that sometimes the customers come in and out because upstairs - and this is not the evidence yet, of course - is a repair part of the shop as well, and there are offices upstairs as well, so people come in and out.
RASMUSSEN: That's my understanding. I think the only way they can get in is through the front entrance.” (T 95-96)HER HONOUR: I see. Thank you for that, Mr Rasmussen. That's very helpful.
The first plaintiff’s version of events is correct. He and Mr Oddie were the only persons in the Tag Heuer shop being served. The other persons were going to offices upstairs or to the watch repair premises at the back of the shop.
94. For the reasons set out above, none of the matters raised by the first defendant in written submissions is considered by me to be a basis upon which I should reject the evidence of Mr Lassanah.
95. This brings me to the question of the evidence of the second defendant.
The evidence of the second defendant
96. The second defendant called no oral evidence and published the following apology in Court to the plaintiffs:
“ APOLOGY TO MR LASSANAH and Mr Oddie
(to be read in Open Court by counsel)
By way of explanation, we wish to indicate that the staff of Tag Heuer were very concerned about the behaviour of Mr Oddie & Mr Lassanah at the time of the incident on 10 June 2008.
However now that we have become aware of the nature of his disability his perceived behaviour has been placed in its proper context.
As a result, we wish to apologise unreservedly for the hurt and upset occasioned to Michael Lassanah and Aaron Oddie when members of the NSW police attended outside our shop on 10 June 2008.
We hope that Mr Oddie and Mr Lassanah will accept our sincerest apologies expressed through our counsel and that they will once again feel welcome in our Tag Heuer stores.” (Exhibit 3).With the benefit of hindsight we acknowledge that neither Mr Oddie nor Mr Lassanah did anything wrong.
97. However, the second defendant’s version given to police on the day in question was, according to the police officers who were called and were cross-examined, very different:
(a) Leading Senior Constable Ansted said that the manager of Tag Heuer told him the plaintiffs were both acting suspiciously in the shop, in that they had been tapping on the glass, trying to lift the glass of the display cabinets, and that they were about to rob or attempt to steal from the shop. (T 207, 218). It was on the basis of that information that the plaintiffs were stopped (T 207).
(b) Leading Senior Constable Ansted was asked:
“Q. When you went back the first time into the shop, were you told that all that information was wrong?
A. No.” (T 207)
(c) Sergeant Gibson told Leading Senior Constable Ansted that the plaintiffs were seen on footage tapping on glass and lifting up the lids. Sergeant Gibson gave evidence but had no independent recollection of what he had seen on the CCTV footage. There is nothing in the CCTV footage to show any conduct of either of the plaintiffs lifting up the lids of the cabinets, tapping on the glass or any other abnormal conduct. Accordingly, if Sergeant Gibson told Leading Senior Constable Ansted this, the most likely explanation is that he was told this by the manager of Tag Heuer, as this is what the manager of Tag Heuer also told Leading Senior Constable Ansted.
98. The explanation that is offered for the second defendant’s conduct in pressing the hold-up button was that the Tag Heuer staff, observing the second plaintiff’s conduct in the store, did not appreciate that he was intellectually impaired and assumed that his conduct in the store was an indication that he was going to steal. It is asserted that while it was observed in Court that Mr Oddie was obviously intellectually disabled (page 9, paragraph 27 of the second defendant’s submissions) “We were all forewarned of his intellectual disability by reason of the Statement of Claim” (paragraph 27) and were expecting to see a person who was intellectually disabled. In addition, it is submitted that he was observed in Court for a longer period, and whilst his mother was present.
99. The written submissions of the second defendant conclude:
“Some people are more perceptive than others and there is no particular reason to presume that the Manager of the store or Ms Ahmet shared the perceptive powers of Constable Axford or even the lack of perception of other officers. They may well have been left in a middle state of mind, that is, in a state of puzzlement or not knowing.”
100. Although the second defendant called no witnesses and puts nothing to Mr Lassanah to the effect that his conduct was in any way furtive or suspicious, reliance is placed on the “apparent perception of the plaintiffs’ conduct can be gleaned from the three different CCTV footage views” (second defendant’s written submissions, paragraph 24). Reliance is placed upon the fact that Mr Oddie is wearing “a dark beanie pulled down to just above his eyes” (written submissions, paragraph 24) and that he is seen “pacing about, sitting down, moving over to the same cabinet several times, standing close to Mr Guidi and Mr Lassanah, moving to the entrance to the store several times as if to leave, moving to the cabinet on the left hand side of the store and placing his hands upon it (with his back to the store manager)” (written submissions, paragraph 24). He appears to lean down and look into the cabinet. I am invited to assume, without the benefit of any evidence being called, that the conduct of Mr Oddie during the period of time that he is in the shop (a matter of four and a half minutes) was the conduct that caused suspicion and concern. It should be noted that it is not until Mr Oddie has left the shop that the male shop attendant opens the cabinet to show Mr Lassanah a watch. Mr Lassanah is shown the watch and leaves two and a half minutes later.
101. I have set out below in more detail why I do not accept the submissions of the second defendant that it was while Mr Lassanah and/or Mr Lassanah and Mr Oddie were in the shop that the alarm button was pressed.
102. I am invited to accept (second defendant’s written submissions, paragraph 27) that Mr Oddie’s intellectual disability would not have been apparent to the shop staff. This is despite the fact that it is conceded in written submissions at paragraph 27 that “it was observed in Court that Mr Oddie was obviously intellectually disabled”, although it was claimed that everyone was forewarned by reason of the fact that a tutor was appointed in these proceedings. It is further submitted that “some people are more perceptive than others and there is no particular reason to presume that the manager of the store or Ms Ahmet shared the perceptive powers of Constable Axford or even the lack of perception of the other officers. They may well have been left in a middle state of mind, that is, in a state of puzzlement or not knowing” (written submissions, paragraph 27).
262. An analysis is provided of the CCTV footage and it would be fair to say that if anything critical could be said against the plaintiffs arising from this footage, the second defendant has drawn it to my attention. For example, much is made of the fact that Mr Oddie can be seen entering the store “with a black beanie pulled down to just above his eyes”. Mr Oddie is certainly wearing a cap of some kind. However, none of this was put to Mr Lassanah.
263. The pressing of a hold-up button produced an inevitable strong response from the police officers who raced to the scene to deal with a potentially highly dangerous criminal activity. This is particularly the case where such a call was made from a shop in one of the busiest streets in Sydney towards the end of the lunch hour period, with a potential of risk to innocent bystanders.
264. Although it is asserted in written submissions that information about the plaintiffs “appears to have been given” (written submissions paragraph 10) to Leading Senior Constable Ansted by Michael Guidi outside the store, and inside the store, as well as providing the CCTV footage, there is in fact no evidence of what the police were told apart from the statements made by the police without the benefit of any contemporaneous notes to refresh their memories. In any event, what the police seem to have been told was that the plaintiffs were acting suspiciously in some way and had been invited to look at some of the tape. It is apparent from the first words of the police officers to the radio operator that they were trying to work out what had really happened, and that it tends to suggest that they were given less than helpful information.
265. Given the “all or nothing” approach the cross-claimant and cross-defendant have taken to the cross-claim, and the fact that I have not been addressed at all as to whether a percentage should be awarded, I do not propose to speculate on what percentage of liability should be sheeted home to the cross-defendant but to make an order for 100% indemnity or contribution.
266. I note that if I had been asked to apportion this indemnity, I would have made the same finding. The cross-defendant’s servants or agents were entirely responsible, on the facts of this case, for the police being called, for the identification of the plaintiffs as potential robbers and for the persisting nature of these allegations which appear to have ended only when the police decided not to investigate the matter further and to leave the store.
267. Nor do I consider that the cross-defendant should receive any credit for the apology read out in court. It was a very late apology, and I note the evidence of Mr Lassanah that he thought this apology inadequate. He was not consulted as to its contents. It would have meant nothing to Mr Oddie, who was not only no longer in court (having been excused) but who would not have been able to understand it.
268. The cross-defendant submits it cannot be held liable for the damages for the defamation because the defamation case brought against it has been dropped: written submissions paragraph 32. This misconceives the nature of the cross-claim. It is not necessary for the cross-defendant to be sued for defamation for the first defendant/cross-claimant to bring a cross-claim.
269. Accordingly I have made an order in the cross-claim that the second defendant/cross-defendant should indemnify the first defendant/cross-claimant for 100% of the judgment in these proceedings.
Damages
270. Mr Lassanah is a man of the highest reputation. He served his country for a decade with distinction as a member of the navy; he has no criminal record of any kind; he is a responsible professional with tertiary qualifications, carrying out a difficult and emotionally demanding profession; he is a middle-aged man who is entitled to assume that he would be treated with dignity and respect.
271. As for Mr Oddie, his intellectual disabilities, which are profound, should excite compassion and concern, and he and the family members who love and cared for him should be entitled to expect that police will deal with an obviously disabled person in accordance with the provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) that were enacted for his protection. I note with concern that as a teenager Mr Oddie was in fact arrested for his conduct in circumstances which drew some strong criticism from Dr Reddel (Exhibit B). I understand from Mr Evatt that Mr Oddie found simply coming to court for these proceedings to be a frightening experience, and for this reason he was excused from attendance at the hearing.
272. The submissions of the parties in relation to damages are short and not very helpful:
(a) The plaintiffs, in seven sentences, refer mainly to the claims for aggravated and punitive damages.
(c) The second defendant asserts that no damages are available as the only persons who heard and understood the matters complained of related to the plaintiffs were the five police officers present. Alternatively, damages should be very low.(b) The first defendant, more helpfully, refers to Coyle v The State of New South Wales [2006] NSWCA 95 and Hage-Ali v The State of New South Wales [2009] NSWDC 266 and asserting that the damages should be “very low or modest” (written submissions, paragraph 174).
273. These submissions do not deal with the difficult issues of the correct approach to damages to be awarded in a claim for defamation and false imprisonment. The overlap between general damages and aggravated compensatory damages for defamation and general, aggravated and exemplary damages for false imprisonment was considered by me in Webster v Coles Myer Limited; Thompson v Coles Myer Limited [2009] NSWDC 4 at [291]ff. I have adopted the same procedure for these causes of action, firstly noting (as to defamation) the cap on damages and statutory provisions, as well as the principles set out by Hayne J in Rogers v Nationwide News Pty Ltd (2003–4) 216 CLR 327 and (as to the false imprisonment claim) by Bergin J in Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 at [87]–[106]. As to the overlap between defamation and false imprisonment, I have used the procedure I adopted for damges for these torts in Photi v Target Australia Pty Ltd [2007] NSWDC 265 at [167]–[178].
Damages issues concerning the claim for defamation
274. By way of general comment, in these proceedings, as was the case in Webster v Coles Myer Limited; Thompson v Coles Myer Limited, supra, and Photi v Target Australia Pty Ltd, supra, there was an extremely limited publication, and this is a matter of very great weight.
275. These were slanders to one or more police officers. However, as I note in Webster v Coles Myer Limited; Thompson v Coles Myer Limited, supra, at [295] they are a very special kind of publication, in that the natural and probably consequence of the making of an allegation of criminal conduct to the police means that records are made and kept and also that bystanders may see and hear about the publications in question.
276. There is a claim for aggravated compensatory damages.
Damages issues arising from the claim for false imprisonment
277. As was the case in Webster v Coles Myer Limited; Thompson v Coles Myer Limited, supra, and Photi v Target Australia Pty Ltd, supra, this was a period of false imprisonment of very short duration. In fact, the duration of this arrest was a matter of minutes. This must be given great weight in any assessment of general damages.
278. There is a claim for aggravated and exemplary damages.
279. Having made these general comments, I consider the quantum for these claims.
General and aggravated compensatory damages for defamation
280. Mr Lassanah gave the following evidence about hurt to feelings from the defamation (T 43-45):
“Q. Yes, what else did they say?
A. They said we were not allowed back in the store because we are thief and we are attempting to steal. I mean, we were acting like thieves.Q. Now, you say this was in a loud voice?
A. Yes, it was a very loud - very. It was very embarrassing, very embarrassing. Very embarrassing to see.Q. Were there any people in King Street--
A. Yes, there were hundreds-Q. --standing and looking? Or passing by or what?
A. Yes, sir. There were hundreds of people. Standing, looking, passing by. It was, it was very embarrassing, I mean.…
Q. Were all the people nearby - were they all walking or what?
A. They were just standing there looking.Q. Standing looking?
A. Yeah, looking.Q. And how did you feel about all this?
A. I don't think I can describe the way I felt. I was upset, upset. Very upset, very upset.Q. But were you happy?
A. Absolutely not, absolutely not.Q. Well, what were you?
A. I was angry actually, angry. Very angry, because I have never stole in my life.Q. Well, you did say before "embarrassed".
Q. I was embarrassed, angry. Humiliated.
Q. Were you upset at all?Q. Humiliated?
A. Very humiliated, very, very.
A. Very upset, very upset.”
281. I accept the evidence that the circumstances in which Mr Lassanah was stopped, made to sit on the footpath, searched and the subject of allegations of robbery, all in a public place, were matters of very great hurt to feelings.
282. It is not possible to know how Mr Oddie felt. All I know about his feelings is that he is frightened to be at court because he thinks he has done something wrong. The parties could not direct my attention to any cases where the person defamed has not been able to understand the matter complained of. However, Mr Oddie knew what a police officer was, and he appears to have known people thought he had done something wrong.
283. When awarding general damages, where there is a claim for aggravated compensatory damages, damages should be awarded at the upper end of the scale.
284. In relation to each of the plaintiffs, the claim for aggravated compensatory damages comes more from the conduct of these proceedings than from the conduct of the police officers. I shall deal with each of these in turn.
Aggravated compensatory damages – Mr Lassanah
285. There was a call to the first defendant to make an apology to Mr Lassanah which the first defendant elected not to make (T 59). Instead, Mr Lassanah was vigorously cross-examined. One of the matters about which he was cross-examined was his evidence that his driver’s licence was taken and not returned (T 67-68). In addition, the hurt to his feelings was aggravated by his knowledge of their falsity.
286. Failure to apologise may, in certain circumstances, amount to grounds for the award of aggravated compensatory damages. The first defendant did not apologise and the second defendant’s apology (which was not in relation to the defamation, as it has not been sued for defamation) is wholly inadequate.
287. Section 20 Defamation Act 2005 provides as follows:
(1) An apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person:“ 20 Effect of apology on liability for defamation
(b) is not relevant to the determination of fault or liability in connection with that matter.
(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and(3) Nothing in this section limits the operation of section 38.”
(2) Evidence of an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.
288. In the Second Reading speech of the Defamation Bill, Mr Bob Debus commented on the function of what is now s 20 Defamation Act 2005:
“Still on the subject of apologies, clause 20 expressly provides that an apology does not constitute an admission of liability. This is designed to encourage defendants to say sorry. Sorry is a singularly powerful word that is capable of vindicating a defamed person's reputation, and healing the hurt caused by an ill-conceived or careless publication. Clause 20 is in similar terms to section 69 of the New South Wales Civil Liability Act 2002. Another modification to the existing "offer of amends" procedure is that clause 14 allows publishers to seek further particulars from an aggrieved party. Without the ability to obtain further information, publishers could otherwise be forced to respond to very general assertions that their publications are defamatory. If publishers are to take full advantage of the "offer of amends" provisions they will need to be able to frame offers that address the particular parts of publications that are alleged to be defamatory.” (NSW Parliament, Legislative Assembly, 13 September 2005)
289. In the present case, an apology from the police to both the plaintiffs would have been a more appropriate way for this litigation to be conducted. In addition, Mr Lassanah should not have been challenged in his evidence about the driver’s licence when this was clearly wrong. For these reasons, an award of aggravated compensatory damages is appropriate.
Aggravated compensatory damages – Mr Oddie
290. A defence of contextual justification was brought, on the basis of Mr Oddie’s prior arrest for offences. It was abandoned on the day of the trial.
291. Prior to the hearing the defendants were served with a medical report (Exhibit B) explaining not only the profound intellectual disability of Mr Oddie but also the circumstances in which, in less enlightened times when he was a young teenager, he had been arrested for conduct which was clearly related to his mental health problems. For the defendants to persist in their defence of contextual justification after service of that report is conduct warranting the award of aggravated compensatory damages.
Quantum for general and aggravated compensatory damages
292. I have had regard to a number of comparable verdicts drawn to my attention by senior counsel for the first defendant as well as to the comparable verdicts to which I referred in Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123.
293. Taking all of the above factors into account, I am of the view that the amount of the damages for each of the plaintiffs should be $10,000 general damages and $5,000 (in the case of Mr Lassanah) and $10,000 (in the case of Mr Oddie) for aggravated compensatory damages.
General damages for false imprisonment
294. Mr Lassanah and Mr Oddie claim general damages for the harm caused by the wrongful acts of the defendants in causing his false imprisonment. Such damages are to compensate each of them for the injury to liberty, being the loss of time considered from a non-pecuniary viewpoint, as well as the injury to feelings, namely the indignity, mental suffering, disgrace and humiliation caused by the false imprisonment. It is in relation to this latter category that there is an overlap with defamation damages which I have taken into account in the manner I adopted in Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123.
295. Compensatory damages are general in nature, but they may be increased by the conduct of the defendant in circumstances which would justify an award of aggravated or exemplary damages.
296. As to general or compensatory damages, I take into account the whole of the conduct of the defendant from the time of the incident up until the time of the verdict: Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 at [89] per Bergin J. I have adopted the same method of comparison of awards of damages in false imprisonment cases and note (Vignoli at [93]) that there should be an appropriate and rational relationship between the award of damages and the harm suffered by each of the plaintiffs.
297. I have also had regard to awards of damages which have been approved by the Court of Appeal. Some of those decisions, however, are ten or more years old (see, for example, McDonald v Coles-Myer Limited (trading as K-mart Chatswood) (1995) Aust Torts Rep, 62,692, where the Court of Appeal found that $12,500 damages was not “significant” and increased the damages award to $27,000). I note the quantum of damages in Webster and Thompson was not the subject of any appellate comment and have had regard to the factors relevant to quantum in that case.
298. However, the quantum of damages for false imprisonment here are considerably more modest, because the shorter length of time, the place and the general circumstances are of a considerably less distressing nature.
299. Taking all the above into account, I am of the view that the amounts awarded for the false imprisonment, including the search of each of the plaintiffs and the fact that they were made to sit on the footpath, should be for a similar amount as that awarded for the defamation.
300. Unlike defamation awards, which have a statutory cap, awards of damages for false imprisonment are at large. However, the hurtful part of the incident for Mr Lassanah appears to have been the accusation, rather than the conduct of the police. It was the false accusation of intending to steal that was his greater source of distress.
301. In addition to there being no statutory cap, exemplary as well as aggravated damages are available. I shall consider each of these in turn.
Aggravated compensatory damages
302. The circumstances in which Mr Lassanah was made to sit on the pavement and be searched in public were humiliating. The police could have undertaken these steps in the store, or used their common sense and not searched the plaintiffs when it was apparent from the CCTV that no attempt to steal had taken place. The same applies to Mr Oddie.
303. In Mr Oddie’s case, there is an additional concern. It is a serious matter that he was not accorded the statutory protection available to persons with an intellectual disability. It was clear that at least one police officer had noticed his disability, and the police were told of his disability by Mr Lassanah.
Exemplary damages
304. Exemplary damages are not compensatory in nature but punitive: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 at 471. They are “to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace” and “to mark the court's condemnation of the defendant's behaviour” (Lamb v Cotogno (1987) 164 CLR 1 at [9] and [10]). They are an exceptional remedy, rarely awarded. They are not awarded in defamation actions and I must take care to ensure any exemplary damages relate to the false imprisonment claim.
305. In Riley v New South Wales [2003] NSWCA 208 the NSW Court of Appeal at [136] ff explained that such damages are only rarely awarded (Gray v Motor Accidents Commission (1998) 196 CLR 1 at [12] and [20]. where there is “high-handed, insolent, vindictive or malicious conduct" amounting to or exhibiting a "conscious wrong-doing in contumelious disregard of another's rights”: Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 77, Gray at [14].
306. The plaintiff in Riley was an emotionally disturbed person whose conduct was asserted to have contributed to the circumstances in which he was arrested. While that is not the case here, I am satisfied that the conduct of the police did not go beyond “ordinary human fallibility” (Riley at [142]) and accordingly these damages should not be awarded.
307. However, I do not consider that this is an appropriate case for exemplary damages. There is no evidence the store employees’ conduct in pressing the button was high-handed, insolent, vindictive or malicious. The police were in a very difficult position, with the staff of the shop having pressed the hold-up button and insisting that the plaintiffs had attempted to rob the store. They did their best to bring the whole incident to a close reasonably quickly. This is not a case of misconduct of the kind described in New South Wales v Delly [2007] NSWCA 303.
308. I propose to award Mr Lassanah the sum of $15,000, including an amount of $5,000 for aggravated compensatory damages, and to award Mr Oddie the sum of $20,000.
309. Finally, as Mr Oddie is a disabled person, appropriate orders will have to be made for the damages to be paid into court for investment pending orders of the Supreme Court or Guardianship Tribunal, unless such orders are already in existence, and I have made orders accordingly.
(1) Judgment for the first plaintiff for defamation in the sum of $15,000.
(2) Judgment for the second plaintiff for defamation in the sum of $20,000.
(3) Judgment for the first plaintiff for false imprisonment in the sum of $15,000.
(4) Judgment for the second plaintiff for false imprisonment in the sum of $20,000.
(5) The judgment sum referred to in orders (2) and (4) above is to be paid into court for investment pending orders of the Supreme Court or Guardianship Tribunal.
(6) The parties have liberty to bring in Short Minutes of Order reflecting the mathematically agreed calculation of interest on the judgment sums.
(7) Judgment for the first defendant/cross-claimant on the cross-claim of 100% indemnity and contribution against the second defendant/cross-defendant, including an indemnity for the costs of these proceedings.
(8) Defendants pay the plaintiffs’ costs of these proceedings.
(9) Second defendant/Cross-defendant pay the first defendant/cross-claimant’s costs of the cross-claim.
(10) Liberty to apply in relation to costs and interest.
(11) Exhibits retained for 28 days.
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