Madden v The State of New South Wales

[2022] NSWDC 647

District Court

New South Wales

Medium Neutral Citation:

Madden v The State of New South Wales [2022] NSWDC 647

Hearing dates:

17 – 21, 24 – 25 October, 3, 7 - 9 November

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Civil

Before:

Fitzsimmons SC DCJ

Decision:

(1) Verdict and judgment for the plaintiff in the sum of $320,000.

(2) The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered.

(3) The exhibits may be returned.

(4) Liberty to apply on 7 days notice if further orders are required.

Catchwords:

TORTS – power to stop, search and detain - trespass to the person – false imprisonment – wrongful arrest – reasonable grounds to suspect – genuine belief of arresting officer – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21, 99

TORTS – applicability of Civil Liability Act2002 (NSW) to wrongful arrest and false imprisonment claims – meaning of injury s 3B(1)(a) – applicability of s 11 in determining definition of injury in s 3B(1)(a) – applicability of s 43A - whether police exercising statutory powers – powers exercised unlawfully

TORTS – malicious prosecution – laying of charge – reasonable and probable cause – whether malice established – whether belief in guilt of person charged

EVIDENCE – standard of proof – civil proceedings – gravity of matters alleged

DAMAGES – aggravated and exemplary damages

Legislation Cited:

Civil Liability Act 2002 (NSW) pt 2, ss 3B(1)(a), 11, 43A,

Crimes Act 1900 (NSW) ss 58, 527C

Criminal Procedure Regulation 2017 (NSW) Reg 25

Evidence Act 1995 (NSW) s 140

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 21, 27(1) 99, 202

Legal Profession Act 2004 (NSW) ss 337(1), 338(1)

Summary Offences Act 1988 (NSW) s 11C

Cases Cited:

A v State of New South Wales (2007) 230 CLR 500 at 502

Attalla v State of NSW [2018] NSWDC 190

Beckett v State of New South Wales [2013] HCA 17; (2013) 248 CLR 432

Beckett v State of New South Wales [2015] NSWSC 1017

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Coleman v Power and others (2004) 220 CLR 1; [2004] HCA 39

Collins v Wilcock [1984] 1 WLR 1172

Croucher v Cachia [2016] NSWCA 132

Dowse v State of New South Wales [2012] NSWCA 337

Edwards v State of New South Wales (2021) NSWSC 181

Fred Saad and Ors v State of New South Wales [2016] NSWSC 1247

George v Rockett (1991) 70 CLR 104 at [115]

Houda v NSW [2005] NSWSC 1053

Hrdavec v State of New South Wales [2022] NSWCA 52; (2021) NSWSC 560

Hussien v Chong Fook Kam [1970] AC 942 at 948

Hyder v Commonwealth of Australia [2012] NSWCA 336

Jankovic v Director of Public Prosecutions [2020] NSWCA 31

MBP (SA) Pty Limited v Gogic (1991) 171 CLR 57

McLiney v Minister [1911] VLR 347 at 351

Neat Holdings Pty Ltd v Karajan Holdings Ptd Ltd (1992) 67 ALJR 170; 110 ALR 449; [1992] HCA 66

New South Wales v Abed (2014) 246 A Crim Report 549

New South Wales v Williamson [2012] HCA 57; (2012) 248 CLR 417

Nguyen v Elliott (unreported 6 February 1995)

O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286

R v Rondo [2001] NSWCCA 540

Ruddock v Taylor [2003] NSWCA 262

Smith v Corrective Services Commission (NSW) [1980] HCA 49; (1980) 147 CLR 134 (at 139)

State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606

State of New South Wales v Ibbett [2005] NSWCA 445

State of New South Wales v Le [2017] NSWCA 290

Trobridge v Hardy [1955] HCA 68; 94 CLR 147

Whitbread v Rail Corporation New South Wales [2011] NSWCA 130

White v Johnson [2015] NSWCA 18; 87 NSWLR 779

Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278

Zaravinos v State of NSW (2004) 62 NSWLR 58

Category:

Principal judgment

Parties:

Ebonie Madden (Plaintiff)
The State of New South Wales (Defendant)

Representation:

Counsel:
Mr A Canceri and Mr S Boland (Plaintiff)
Mr R Coffey (Defendant)

Solicitors:
Blair Criminal Lawyers (Plaintiff)
Wotton + Kearney (Defendant)

File Number(s):

2021/219758

Publication restriction:

Nil

Table of contents

Introduction

The plaintiff’s claim

Issues to be determined

The evidence

The plaintiff

Body Worn Video Recordings

Senior Constable Kelly

Senior Constable Munt

Senior Constable Darnton

Credit findings

The plaintiff

Senior Constable Kelly

Senior Constable Munt

Senior Constable Darnton

Was the plaintiff subjected to a false imprisonment prior to being told that she was to be detained for a search?

After the plaintiff was told she would be detained for a search, and before being placed under arrest, was the plaintiff lawfully detained and searched pursuant to s 21?

Was the plaintiff lawfully arrested pursuant to s 99 of LEPRA?

Whether the physical contact between the plaintiff and the police officers, including the subsequent search performed by Munt, was lawful and / or constituted an assault and battery

Whether s 43A of the CLA applies

Whether the plaintiff was prosecuted maliciously

Active steps

Reasonable and probable cause

Custody of a knife in a public place

Goods in custody reasonably suspected of being stolen

Resist officer whilst in the execution of his or her duty

Malice

Damages

General Damages for false imprisonment

General damages for battery

Aggravated and exemplary damages for false imprisonment and battery

General damages for malicious prosecution

Exemplary damages for malicious prosecution

Damages summary

Orders

JUDGMENT

Introduction

1. At about 4:30pm on 30 December 2019 the plaintiff, whilst walking with Dylan Turner (‘Turner’) on Evan Street South Penrith (‘Evan Street’), was stopped, searched, and detained by New South Wales Police officers, who were members of the Proactive Crime Group. A search of a bag in Turner’s possession uncovered a knife. Shortly thereafter the plaintiff was arrested for the summary offence of custody of a knife in a public place. The plaintiff was subsequently involved in a physical altercation with several police before being transported to Mount Druitt Police Station. She was charged with three offences before being bail refused and remanded in custody.

2. The following day the plaintiff made an unsuccessful bail application at Parramatta Local Court. The plaintiff remained in custody until released in June 2020 following a successful bail application. On 28 October 2020 Magistrate Hiatt at Penrith Local Court dismissed all charges.

3. The plaintiff claims damages for false imprisonment, assault, battery, and malicious prosecution. The claim for misfeasance in a public office was not pressed.

4. The defendant denies the plaintiff's claim for damages.

5. A significant part of the interaction between the plaintiff and police was captured by body cameras worn by police. The proceedings focused on the conduct of Senior Constable Darnton (‘Darnton’) who was the informant in respect to the charges brought against the plaintiff.

The plaintiff’s claim

6. The plaintiff claims that she was falsely imprisoned from the moment she was stopped by Darnton and Senior Constable Kelly (‘Kelly’). It is alleged that the officers did not have a lawful basis upon which to stop the plaintiff (by reference to s 21 of Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’)), failed to provide a reason why the plaintiff had been stopped (rendering the detention unlawful), and that each action thereafter performed by the officers constituted a trespass to the person. The plaintiff further alleges that a subsequent search performed by Senior Constable Munt (‘Munt’) constituted a strip search which occurred at the time the plaintiff was falsely imprisoned. The subsequent forcible restraint of the plaintiff by three officers, to remove a necklace worn by the plaintiff, was similarly unlawful.

7. Accordingly, the plaintiff alleges that she was falsely imprisoned from the moment she was stopped until her refusal of bail the following day at Parramatta Local Court. It is further alleged that the plaintiff was subjected to an assault and battery arising from the conduct of Kelly (applying handcuffs) and the subsequent interaction between the plaintiff and the three police officers. It is further alleged that the plaintiff was subjected to a malicious prosecution by Darnton given the circumstances in which the prosecution was initiated and maintained. General damages as well as aggravated and exemplary damages are claimed.

8. The defendant denies the plaintiff's claim that she was unlawfully detained, unlawfully arrested or subjected to a malicious prosecution and/or misfeasance in public office.

Issues to be determined

9. The defendant articulated in its written submissions the issues to be decided encapsulated as follows:

1. Was the plaintiff subjected to a false imprisonment prior to being told by Darnton that she was to be detained for a search?

2. After the plaintiff was told she would be detained for a search, and before being placed under arrest, was the plaintiff lawfully detained and subsequently searched pursuant to s 21 of LEPRA?

3. Was the plaintiff lawfully arrested by Darnton pursuant to s 99 of LEPRA?

4. Whether the physical contact between the plaintiff and the police officers, including a subsequent search performed by Munt, was lawful and/or constituted an assault and battery.

5. Whether s. 43A of the Civil Liability Act 2002 (‘the CLA’) applies.

6. Whether the plaintiff was prosecuted maliciously.

7. An assessment of the plaintiff's damages in the event she succeeds on any or all of her causes of action.

The evidence

The plaintiff

10. The plaintiff attended Cambridge Park public school from Kindergarten to Year 4 and Emu Plains Public School from Year 4 to Year 6. She attended Nepean High School in Year 7 however was expelled from there that same year. Following her expulsion, the plaintiff was diagnosed with ADHD for which she saw a psychiatrist and was prescribed Ritalin.

11. The plaintiff thereafter attended Penrith Adolescence Centre, but “didn’t stay long”, only having attended approximately three times throughout Year 8. At this time the plaintiff was living with her grandmother. She and her siblings did not live with their parents, which the plaintiff says was a result of them not “getting on well”. The plaintiff further explained that when she and her siblings were younger, they were removed from living with their parents due to domestic violence and drug abuse. The plaintiff’s evidence was that the domestic violence was predominantly between her parents but at times would also involve her and her siblings.

12. At the time of the alleged offending on 30 December 2019, the plaintiff claims to have been suffering from borderline personality disorder, anxiety, and depression. She recalled being diagnosed with borderline personality disorder “a few years ago” while she was in jail.

13. The plaintiff gave evidence of an experience she had with police when she was fourteen years old. She recalled that whilst being strip searched by two female officers at Penrith Police Station two male officers knocked on the door. The two female officers then left the room and the two male officers continued to strip search her before returning her to her cell naked.

14. The plaintiff gave evidence that she experiences anxiety when near police officers, especially male officers. She claimed to have felt that anxiety on the day of the arrest and stated that she still feels it presently.

15. The plaintiff has a son named Jackson who was born in 2018. He was subsequently taken into foster care that year. The plaintiff maintains contact with Jackson and does this by making arrangements with his carers to organise visits.

16. In relation to offences committed in September 2019, the plaintiff was sentenced to three years of imprisonment with a non-parole period of 1 years and 3 months which expired on 8 November 2019. On 5 December 2019, the plaintiff was subsequently released from the correctional centre on parole. The sentence had been backdated to an extent.

17. The plaintiff gave evidence that the first thing she did upon leaving custody was contact her son. She claimed to have wanted to see him for Christmas however was informed by his carers that this would not be possible as they were taking Jackson on vacation over the Christmas period. This news significantly upset her, and she subsequently “sat at home for two days depressed” before relapsing into drug use, namely ice. The plaintiff stated she had only one relapse that spanned over a few days, throughout which she was smoking and injecting ice.

18. The plaintiff gave evidence that on 30 December 2019, she had woken up at her father’s house before attending her mother’s home to pick up money and the handbag she took to her community corrections meeting. The plaintiff shared the handbag with her mother; she did not recall looking into the bag after picking it up.

19. At approximately 2:30pm the plaintiff met Turner at Penrith and together they took a train to Mount Druitt. At approximately 3pm the plaintiff attended Mount Druitt Community Corrections to meet with her parole officer where she returned a negative result from an “on the spot” drug test.

20. Following the meeting with her parole officer, the plaintiff returned to Mount Druitt train station with Turner from where they travelled together to Kingswood Station. From Kingswood Station the plaintiff and Turner were walking to the Jamison Hotel Pub, or “Jammo”, via Evan Street. During cross-examination, the plaintiff denied consuming ice between leaving the correctional facility in Mount Druitt and being stopped by police on Evan Street.

21. The plaintiff was walking down Evan Street with Turner when they witnessed a man being arrested and sitting on the side of the street. Turner made a comment directed towards attending police to the effect of it being “slack” that the man was being kept on the ground in the heat. The plaintiff recalls laughing at this comment before a female officer responded to Turner with words to the effect of “you can join them if you want”. They saw another car stopped and two police officers alight from the vehicle. The plaintiff could not recall how many police officers were there at that time.

22. The plaintiff alleged that she and Turner continued to walk down the street when the police officers, following them, instructed them to stop. The plaintiff specifically recalls being directed by Darnton to stop.

23. The plaintiff denied that she and Turner were only asked to stop after being informed that they would be searched. The plaintiff conceded that she was free to walk around the grass and footpath while speaking with police, and that the first time a police officer physically came into contact with her was when handcuffs were placed on her.

24. The plaintiff gave evidence that the officers were being “smart arses” during this interaction, making comments about her son’s father, and asking if she was still in a relationship with him. In cross examination, the plaintiff recalled feeling offended and embarrassed by these comments. The police officers then asked herself and Turner what they were doing and where they were going. The plaintiff conceded that she did not answer all their questions.

25. In cross-examination, the plaintiff was shown the footage of the body worn camera of Darnton (Ex P2). The plaintiff agreed that at the beginning of the footage she was free to walk around the road and grass, and that no police officer had physically touched her. She agreed that she engaged in a handshake with Turner and appeared jovial. The plaintiff recalled being told by Darnton that his camera was being turned on. The plaintiff agreed she was told she would be searched, although she was not told why. The plaintiff accepted that in response to being told about the search, she said words to the effect of “I want a female” and later, making reference to Munt, said words to the effect of “can you get miss down there to search me”. The plaintiff agreed that she did not feel frightened whilst in the presence of the male police officers.

26. The first time the plaintiff was shown the footage was approximately three days prior to the commencement of the hearing. When asked if her memory of the event was imperfect prior to watching the footage, the plaintiff candidly conceded that she had forgotten some details. The plaintiff, however, insisted that Darnton had approached herself and Turner on Evan Street and told them to stop.

27. A female officer, identified as Munt, pat searched her before asking her to stand against a metal fence to continue the pat search. The plaintiff got into an argument with her and subsequently organised to be searched at the station. The plaintiff contended that the officer then attempted to force her to sit on the ground. The plaintiff resisted, alleging that she did not want to be seated on the ground as she was wearing a skirt, and there were male officers in attendance.

28. The plaintiff was escorted by Munt to the back of a police vehicle where she was strip searched. The plaintiff was required to show Munt the inside of her bra by pulling out the front of the bra and lifting her breasts. The plaintiff was standing in the back of the paddy wagon while Munt stood outside of the paddy wagon looking in. Munt was holding the door partially closed but open enough so that her body could fit in the gap. The plaintiff stated that the only item found in her bra was a parole card from that morning. The plaintiff recalled feeling embarrassed during this process.

29. The plaintiff was asked by Munt to remove a necklace she was wearing. The plaintiff refused, resulting in Munt calling over another two male officers who restrained the plaintiff on the ground while the necklace was removed. The plaintiff stated that she felt “really upset” by the process of being restrained on the ground by the two male officers. The plaintiff was further questioned by Darnton before being taken to Mount Druitt Police Station.

30. In cross examination, the plaintiff stated that the items of clothing found in her handbag at the time of the arrest, including men’s underwear and a t-shirt, belonged to Turner; they were placed in her bag by him between the time she met up with him in Penrith and before attending her parole meeting in Mount Druitt.

31. The plaintiff was unable to recall whether she was transported to Amber Laurel Correctional Centre on the day of the arrest or the following day but recalled appearing at Paramatta Local Court by AVL on 31 December 2019 in relation to her bail application. The plaintiff gave evidence that although she was able to speak to her solicitor prior to the bail application, the conversation lasted no more than 5 minutes.

32. The plaintiff recalled feeling “really upset” when hearing that the Magistrate had refused her bail as she believed she “shouldn’t have been arrested”. She was on parole at the time of her arrest and felt concerned that her parole would be revoked.

33. The plaintiff remained at Amber Laurel for 2 to 3 days before being transported to Silverwater Women’s Correctional Centre. Upon arrival at Silverwater Women’s Correction Centre, the plaintiff was required to isolate for two weeks, in line with the Centre’s Covid procedures. The plaintiff conceded that she may have been mistaken as to the timing of this isolation given the Covid issues did not arise until early 2020.

34. The plaintiff gave evidence that no visitors were allowed at the Silverwater Women’s Correction Centre for approximately two months due to Covid restrictions. AVL visits were eventually enabled but in-person visitation remained prohibited. As result, the plaintiff had no contact with her son Jackson during her time at Silverwater. The plaintiff further recalled that during this period of custody, she worried about being convicted of the offences which had been laid by Darnton.

35. The plaintiff gave evidence that she had served two previous custodial sentences for separate offences, including 3 months in Silverwater Women’s Correctional Centre and Mary Wade, and 12 months at Silverwater Women’s Correctional Centre and Emu Plains Correctional Centre.

10. On 1 June 2020, the plaintiff made a successful bail application in which bail was granted on very strict conditions.

11. In cross-examination the plaintiff stated that she was required, by way of a parole condition, to reside at her father’s home at 9 Cremona Place Oakhurst. The plaintiff was able to recall some of the additional parole conditions including the requirement to report to parole, not to commit any further offences and not to consume illicit drugs.

12. The plaintiff stated that on the day of her arrest she had spoken to her parole officer about moving from her father’s address as she had an argument with him the night before. She was told she had seven days to do so.

13. The plaintiff conceded that she had lied to other parole officers in the past, but that she had not lied to her most recent parole officer, Storm. The plaintiff alleged that she had been honest with Storm about her drug use and recent relapse.

14. When it was put to the plaintiff that she had lied to Storm on one occasion in relation to being sick, the plaintiff stated that she was not lying as she had been unwell but conceded that she may have used the word “lie” in that context.

15. The plaintiff accepted that from her past experiences, she had a general understanding of the consultation process that occurs with a nurse when going into custody. She accepted that in these consultations, the nurse, using a visible computer screen, would ask a series of standard questions about topics such as health, mental health, and drug usage, and would record given answers. When asked about her attendance at a consultation on 31 December 2019, the plaintiff stated that although she accepted that she would have attended a consultation, she did not have a clear recollection of the event. The plaintiff could not recall whether she had told the truth during the consultation or whether she had told the nurse that she had been smoking and injecting ice leading up to her arrest.

16. The plaintiff conceded that she had lied during these consultations in the past in order to be promptly placed on the Buvidal injection program. When asked to elaborate on this point, the plaintiff told the Court words to the effect of “if you tell the nurse that you have been using drugs, they will put you on the program”.

17. The plaintiff could not recall how old she was when she was first arrested, although stated that she was “young”. Although the plaintiff was unable to recall, or estimate, how many times she had been arrested in the past, when put to her, she conceded that it would have been on “multiple occasions” between 2012 and 2019.

18. The plaintiff had contact with Darnton on only one previous occasion when she was arrested on 3 September 2019 in relation to an offence involving a car.

19. In relation to the plaintiff’s prior experiences with police and Corrective Services, the plaintiff conceded that she had “more often than not” been handcuffed when taken to a police station. When asked if she recalled being searched by police on every occasion that she had been arrested, the plaintiff said that she had been searched “50/50” of the time. The plaintiff further confirmed she had not been strip searched every time that she has been arrested by the police, however, had been strip searched every time she had gone into Corrective Services. The plaintiff confirmed that she had been asked to remove items such as belts and jewellery when being placed in a cell and further, confirmed that she had been told and understood this procedure to be for her own protection.

20. When asked about her diagnosis of ADHD, the plaintiff confirmed that she was diagnosed in Year 5 and prescribed the medication Ritalin for symptom management. She further stated that whilst in custody she was prescribed a different medication called Avanza to stabilise her mood. The plaintiff confirmed that she was not taking any medication for her ADHD at the time of the incident in 2019.

21. When asked about Hayley Reitano Taylor (‘Taylor’), the plaintiff confirmed that she was a friend and gave further evidence that Ms Taylor’s partner resided on Evan Street, but that she understood Ms Taylor to live at her mother’s home.

Body Worn Video Recordings

48. The interaction between the plaintiff, Turner and police on the afternoon of 30 December 2019 was recorded on cameras worn by Darnton and Kelly.

49. The video recording commences at 16:29:13. The first minute is without sound. It was explained that when the camera is activated the recording “back captures” the previous minute of video without audio. The audio was transcribed, and an agreed transcript was in evidence (Ex P26).

50. At the commencement of the audio Darnton informs the plaintiff that she is to be detained for a search “for an item in connection with an offence or a drug" and “just because of your history". The plaintiff immediately insists that any search be undertaken by a female. The plaintiff does not directly respond to a question of Darnton as to where she is living. Darnton then engages, in a teasing manner, in an exchange with the plaintiff relating to the person Heckle. Darnton suggested to the plaintiff that she had “dropped him like a hot potato". He then, in a similarly teasing manner, says to Turner:

“You and Gaige are mates and now you’ve hooked up with his Mrs?”

51. Darnton then directs the plaintiff to move off the footpath onto the grass verge. He commences a search of the subject bag, having taken it from between the legs of Turner. After removing various clothing items and aerosol spray from the bag, Darnton then announces, in a self-satisfied tone, “Breach, breach”. The plaintiff is seen to express shock and dismay at what is found in the bag saying, “what the fuck”. Kelly asks, “whose bags that?" to which Darnton immediately replies “it’s Ebonie’s”. The plaintiff replies “fuck off”.

52. Darnton asks the plaintiff where she is living, and before she has even had an opportunity to reply, Darnton announces, in a grandiose tone “because you are under arrest". He tells the plaintiff his name and advises that she is under arrest for custody of a knife in a public place. Immediately thereafter Turner is heard to say, “it's mine chief". This comment by Turner is directed at Darnton whilst they are facing each other and are only a short distance apart.

53. Immediately after the arrest is announced, Kelly is seen to move forward, requesting the plaintiff put her hands out. She cooperates and handcuffs are immediately applied. The plaintiff then states, “I don't even know how they got in there".

54. Munt is then heard to be saying, “That’s what happens when you’re mouthy… you get searched, full stop.” to which Darnton observes “we’ve got our cameras on, Sarg” (a comment clearly directed to Munt in response to her “mouthy” comment).

55. A further search of the bag by Darnton uncovers men’s underwear. Turner immediately states they belong to him and that he had “paid for them today”, having purchased them from K-Mart.

56. Darnton requests Munt undertake a search of the plaintiff, and in so doing he directs the following comment towards the plaintiff:

“Who has the last laugh now, hey? … You’re an interesting one, Ebony, I’ll give you that. Stealing a car in front of a police officer, that’s a first for me”

57. The latter comment is referring to an interaction between Darnton and the plaintiff in September of the same year which resulted in the plaintiff being charged with various offences.

58. Following a preliminary search of the plaintiff performed by Munt, a further conversation ensues in respect to a more thorough search. The plaintiff indicates that she is not prepared to undertake such a search in front of the males, to which Munt replies, “I’ll strip search you at the station.”

59. It is apparent that Munt takes exception to the plaintiff using expletives. The video shows Munt attempting to restrain the plaintiff, including attempting to sit her down from behind. The plaintiff is caught unaware by Munt’s unexpected actions and reacts accordingly. She declines to sit down, as directed by Munt, given the fact that she is wearing a short skirt.

60. Darnton intervenes and, in a condescending tone, tells the plaintiff to “relax darling". He tells the plaintiff to “behave" and “stop acting like an animal… behave like an adult please darling”. These comments were unjustified in circumstances where the plaintiff was merely reacting to an overly aggressive approach towards the plaintiff, from behind, by Munt. No doubt referring to the incident in September, Darnton says to the plaintiff, “you carried on like this last time”.

61. A further discussion then ensues between the police and Turner in respect to the possession of the male underwear. In the meantime, the plaintiff is seen to be escorted by Munt to a caged vehicle some distance away. During a further interaction between police and Turner, the plaintiff’s raised voice is heard in the background, in the vicinity of a caged truck.

62. Kelly is heard to answer his mobile phone, at which time Darnton is seen and heard to be laughing, with the comment directed towards Kelly, “tell him the latest". Whilst not appearing on the transcript (P 26), according to the body cam video recording of Kelly (P1), Kelly is heard telling the caller:

“We just had a run in with Ebonie Madden and her friend… She is kicking off… We were just standing here, and they walked past. She started mouthing off."

63. Following a further exchange with Turner, Darnton is heard to say to Turner in a condescending tone:

“I like you… yeah I like you, do you like me? … we’re going to be seeing more of each other sir”.

64. A discussion then ensues between police during which Kelly suggests that the plaintiff be given a “field CAN”. Darnton is then heard to say, “this is the gift that keeps on giving this place”.

65. Munt informs the officers, whilst smiling, that the plaintiff’s necklace was forced off, in which case Kelly suggests that the plaintiff be issued with a “field CAN” for resist. Darnton asks Munt if her “body worn" was on. In reply Munt asked whether the light is green or red. Darnton is seen to check the camera fitted to Munt and advises “nothing". Accordingly, Munt advises that her body worn camera must have been off. Significantly, Darnton asks where the plaintiff is living, and following the reply from Kelly that she does not know, Darnton then says:

“I’ll write her out a field CAN quickly”.

66. Darnton then walks to the police vehicle and retrieves from the back seat what is presumably a field CAN book before returning to the group of police. A further discussion between police ensues as to the offences with which the plaintiff will be charged. There is a suggestion that the plaintiff also be charged with “resist” because of the altercation with police during the forced removal of the necklace. Munt, whilst laughing, says, “we pulled her out of the truck”.

67. Darnton is then seen talking to the plaintiff in the rear of the caged vehicle. The plaintiff denies any knowledge of the knife in the bag, having borrowed the bag from her mother earlier in the day. Towards the end of the recorded conversation Darnton says to the plaintiff:

“Hey if you can’t give me an address right now I’m going to be straight up. If I can’t confirm where you are living. If you are staying with your mum that’s all good but I’m going to take you back and charge you, bail refuse you.”

68. The plaintiff then provides an address where she is living.

Senior Constable Kelly

69. Kelly, at the time of the incident, was attached to the Nepean Proactive Crime Team. He was working primarily with Darnton, although at the time of the incident he was present in Evan Street with other police, including Munt and Senior Constable Jamieson.

70. Kelly made a statement dated 9 March 2020 (Ex P8). Whilst the statement purported to be in the prosecution of Turner for the offence of goods in custody, Kelly conceded that the statement was also prepared as part of the police brief arising from the prosecution of the plaintiff.

71. In that statement Kelly referred to having stopped a male leaving a well-known drug house whilst in the company of other officers. He later observed the plaintiff and Turner walking south towards the same house. At paragraph 4 of the statement Kelly said the following:

“As a result, Darnton stopped the accused Turner and accused Madden. I active (sic) my body worn video and commenced recording." (emphasis added)

72. He described the plaintiff as being well affected by a prohibited drug as she was “in an extremely good mood, laughing at everything". He claimed that the plaintiff's mood changed “in an instant", becoming violent and aggressive towards police. The statement essentially documents the conversations which are otherwise recorded on the body worn video, with some notable exceptions traversed in cross examination of the witness.

73. Kelly’s evidence in chief confirmed that on the date of the incident he was performing duties with Darnton as part of the Proactive Crime Team. He referred to earlier in the day (approximately 10 am) stopping two males on Castlereagh Street, one of whom was Turner. The two males appeared to be attempting to avoid police and therefore thought that they should “go and have a chat to them". The male was searched although Turner was not searched.

74. Later that afternoon, having transferred to an unmarked police vehicle, they patrolled Evan Street, being the location of a known drug house. At the time they noticed a person by the name of Ty Williams leaving the drug house. He was stopped, searched, and subsequently issued with a field Court Attendance Notice arising from items found in his possession. A further offender with outstanding warrants was subsequently located near the drug house who was then arrested.

75. The police were waiting for a caged vehicle when Kelly observed the plaintiff and Turner walking in their direction. The plaintiff was known to police because of an incident some weeks earlier with Darnton. He also referred to his own knowledge of the plaintiff dating back to 2013. He was aware that the plaintiff was a drug user.

76. The police exited the vehicle and approached the plaintiff and Turner. He did not recall telling them to stop; they merely wanted to have a conversation with them. The plaintiff appeared to be affected by drugs or alcohol in that she was laughing, walking around and couldn't sit still. Turner appeared agitated and slightly aggressive with police.

77. A handbag was being held between Turner’s legs. Darnton subsequently took hold of the handbag, and during a search, a knife was found. A further search of the bag resulted in finding male clothing. Turner was asked questions about that clothing.

78. The plaintiff was then formally arrested, and handcuffs were placed on her. When asked the reason for using handcuffs, Kelly stated that as the plaintiff at that time was becoming aggressive, he did not want anyone assaulted. It was also to prevent injury to police or others and to prevent escape.

79. Kelly thereafter referred to the subsequent search of the plaintiff by Munt, including the strip search due to the plaintiff playing with her bra towards the top of her breast. He overheard a further conversation between Darnton and Turner in relation to the clothing found in the handbag.

80. Kelly referred to knowing Taylor lived at the drug house with her partner. He knew of an association between the plaintiff and Taylor from 2013 and was aware that they were friends or associates from high school. It was suspected that the plaintiff had drugs on her due to her mental state.

81. In cross examination Kelly conceded that in assessing the performance of police attached to the Proactive Crime Team reference is made to the number of searches performed by an individual officer.

82. Kelly was asked about the circumstances of the initial interaction between the plaintiff, Turner and police. The plaintiff and Turner had walked past their vehicle, which was stopped facing a northerly direction, as seen on the body cam. Whilst continuing to walk in a southerly direction the plaintiff and Turner were approached by the police.

83. Kelly claimed that the pair stopped when approached by police; he denied they were directed to stop. Kelly was then cross-examined on paragraph 4 of his statement in which he stated that the plaintiff and Turner were “stopped" by Darnton. Kelly stated that the use of the expression “stopped” in his statement was merely a figure of speech. He maintained his previous evidence that at no stage were the pair physically stopped. He denied the police were exercising their powers to stop in accordance with s 21 of LEPRA. Kelly acknowledged that stopping a person is a specific power provided in s 21 of LEPRA and, in those circumstances, the term has particular significance. Despite acknowledging this was the case, Kelly maintained his earlier evidence that the expression used in paragraph 4 of his statement was not intended to suggest that the police were exercising their specific power under a 21 of LEPRA.

84. Given Kelly’s experience as a police officer, including regularly stopping and searching suspects as part of this duties in the Proactive Crime Unit, I found his answers on this issue were evasive and unconvincing.

85. These findings were reinforced by cross examination of Kelly in relation to his earlier interaction with Turner. That interaction was also the subject of a video recording utilising Kelly’s body worn camera. The recording was played during the cross-examination. It showed Kelly riding a bike for a period before changing direction, crossing a street, and changing direction again, before stopping his bike in front of two males, one which was identified as Turner. The start of the video shows Turner and the unidentified male in the foreground crossing the street at a marked pedestrian crossing, with a second police officer riding immediately behind them. The second police officer was later identified as Darnton. The video shows Turner walking past Kelly and out of view of the camera before returning into view. It also shows Darnton stopping behind the two males opposite Kelly.

86. There is an interaction between the two males and Kelly during which both males produce wallets and apparently provide some form of identification. The first part of the recording is without sound.

87. Kelly conceded that at the start of the video he was riding with Darnton before the two police move in different directions. It is apparent that Kelly changes direction to approach the two males as they walk towards him. At the same time, it is readily apparent that Darnton adopts a different direction so as to ride behind the two males as they cross the pedestrian crossing and approach Kelly.

88. Kelly had no explanation as to why Darnton took a different path. Whilst conceding that the video depicted Darnton following the two males from behind, he did not accept that this was in any way a deliberate tactic leading to the two males being approached by police.

89. It was suggested to Kelly that, given what was shown on the video footage, he was exercising his police powers under s 21 of LEPRA to stop the two males. Kelly claimed that this was not a stop in the sense of powers exercised under LEPRA, but merely involved a consensual and innocuous interaction between police and the two males. I find Kelly's evidence in this respect unconvincing. The video clearly shows the two police taking divergent paths, with Kelly approaching the two males from the front whilst Darnton follows them from behind. It is apparent that the two males immediately stop having been approached from separate directions by police. I do not accept Kelly's evidence that he was “just having a chat to them", as opposed to exercising his powers under s 21 of LEPRA.

90. The assessment of Kelly's evidence in this respect is important given his denials that his approach to the plaintiff and Turner on the afternoon of the same day was again merely to “have a chat with them".

72. Kelly was then cross-examined on the contents of his statement relating to his interactions with the plaintiff and Turner. He acknowledged that he did not refer in the statement to the fact that the bag in which the knife was found was in the possession of Turner prior to it being searched. He claimed that the omission in this respect was “a mistake". Further, Kelly did not include in his statement the fact that Turner had claimed that the knife was his. Kelly accepted that, given the offence related to custody of a knife in a public place, these matters were relevant to the issue of custody.

73. Kelly agreed that he had an obligation, when preparing statements, to include any relevant evidence, whether exculpatory or inculpatory. Whilst acknowledging that this evidence was relevant, and should have been included in the statement, he sought to justify its exclusion in part by suggesting that it was in the body worn footage. This was despite including in the statement conversations otherwise recorded in the body cam footage of less significance than the issue of custody of the knife.

74. The absence of such evidence from Kelly's statement, given its importance to a central fact in issue in a criminal proceeding, does not reflect well on his credit.

75. Kelly was cross-examined on his subsequent inquiries at the Kmart located in Penrith arising from Turner's claim that he had purchased various clothing items from Kmart at Mount Druitt. Kelly stated that he had made these enquiries as he suspected that the items had been stolen from Penrith Kmart. However, he accepted that similar inquiries were not made of footage from Kmart Mount Druitt to confirm Turner's original claim that he had purchased the items from that store. No such enquiries were made as Turner later claimed that this may have been a “white lie". Whilst not as significant, it is consistent with Kelly's exclusion of other evidence already discussed which may have tended to exculpate either the plaintiff or Turner in respect to the charges they were facing.

76. Kelly was also questioned as to his decision to handcuff the plaintiff at the time of her arrest. He claimed this was necessary to avoid the police being assaulted in circumstances where the plaintiff was demonstrating aggressive characteristics. He further claimed that the use of handcuffs was necessary to prevent injury or escape. However, Kelly agreed that the plaintiff’s demeanour was generally happy prior to the use of handcuffs.

77. Understandably the plaintiff reacted in a somewhat aggressive tone when informed she would be searched, insisting that any such search be undertaken by female, before returning to a non-combative demeanour. Kelly's evidence in seeking to justify the immediate use of handcuffs was unconvincing given the demeanour of the plaintiff as demonstrated in the video.

78. Re-examination of Kelly, in which he was essentially “lead" into providing other reasons for the immediate use of handcuffs, including the alleged proximity of the knife, and concerns arising from her playing with the bra, were unconvincing given they were not volunteered by Kelly at the time he was first questioned on this issue.

Senior Constable Munt

98. In January 2020 Munt prepared a statement for the plaintiff’s prosecution, referring to her initial attendance at Evan Street where an offender was in custody in respect to an outstanding warrant. Whilst waiting for a caged vehicle to arrive the plaintiff and Turner walked past. Turner said words the effect of “how slack making him sit there in the heat”. Munt replied, “why don't yous come sit down and join him then", to which the plaintiff replied, “nah miss you can sit down with him”.

99. Munt later observed Darnton and Kelly leave a police vehicle parked further south and begin speaking to Turner and the plaintiff. A short time later she observed Kelly place handcuffs on the plaintiff and Darnton was seen looking through a bag Turner was previously holding. Presuming a search would be required, Munt approached the group and said “see, that's what happens when you're mouthy, you get searched." Munt then referred to her interaction with the plaintiff, consistent with the recording on the body cam video.

100. Munt decided that a more invasive search was required as she was concerned that the plaintiff may be secreting a weapon, such as a knife, possibly within her bra. In this context Munt told the plaintiff that she would be “strip searched" at the station. A further interaction occurred between the plaintiff and Munt involving the plaintiff using an expletive. It was then decided that the plaintiff would be searched inside a caged vehicle which had arrived in the meantime. The plaintiff was placed inside the caged vehicle and the plaintiff cooperated with Munt in showing the officer the inside of her bra.

101. Munt thereafter requested the plaintiff remove a necklace as she considered it a “safety risk". In response to the plaintiff's refusal to remove the necklace, Munt said to her, “stop trying to be a tough bitch Ebonie, the necklace needs to come off. If you don't take it off, I will have to get you out of the truck and get it off which I don't want to do just hand it over". Due to an ongoing refusal the plaintiff was forcibly removed from the caged vehicle and forced to the ground and restrained by the three officers.

102. In her evidence Munt confirmed she was part of the Proactive Crime Team and was working, on the day of the incident, with Darnton, Kelly and Senior Constable Jamieson. Whilst driving in an unmarked police vehicle along Evan Street, police sighted a male coming out of a known drug house. The male was stopped and searched. As a result, the male was issued with various court attendance notices. Whilst processing the offender, a further male in a vehicle came to the attention of police. He was subsequently arrested for outstanding warrants and placed in police custody in the gutter on Evan Street. When the plaintiff and Turner walked by Munt heard Turner say words to the effect, “get him out of the gutter it's hot", to which Munt responded, “why don't you come and join him.” She considered that this exchange was merely “banter".

103. Munt subsequently noticed Darnton searching through a bag that Turner had been carrying. She thereafter heard her colleagues talking about a knife and saw that they had placed handcuffs on the plaintiff. She then appreciated that the female would need to be searched and accordingly walked south towards the group. As she approached, she said to the plaintiff words to the effect “that’s what happens when you get mouthy, you get searched”. Munt clarified this comment, suggesting that what she meant to say was that “this is what happens when you get yourself involved in things you should stay out of", in the sense that if you want attention, you will get attention. She denied that it was stated as a justification for the search.

104. Following a brisk search Munt considered it was necessary to undertake a more invasive search, particularly to determine whether the plaintiff was secreting anything in her bra. In response to the plaintiff’s request that it not be done in front of males it was agreed that it would be done “at the station". The plaintiff then directed an expletive towards Munt and was subsequently warned about her language. A brief exchange thereafter occurred in which the plaintiff said on several occasions to Munt “watch yourself". She attempted to sit the plaintiff down as a form of control so that she would not hurt anyone.

105. A caged vehicle subsequently arrived and Munt performed what she accepted was a "strip-search" in the rear of the caged vehicle. This involved the plaintiff cupping her breasts to give her privacy and leaning forward so that the bra area could be seen. The specific request to search the breast area was in response to information provided by fellow officers that the plaintiff “had been fiddling" in that area.

106. Munt, at the time the plaintiff was in the caged vehicle, requested the plaintiff remove her necklace, which she refused. Munt told the plaintiff to “stop being a tough bitch". Due to her persistent failure to comply with her requests for the removal of the necklace, the plaintiff was forcibly removed from the caged vehicle where further unsuccessful attempts were made to remove the chain. Munt then performed a manoeuvre involving holding the plaintiff's upper body whilst effectively taking her legs from under her, so she was lying on the ground facedown. It was whilst this occurred that the chain was forcibly removed.

107. In cross-examination Munt denied there was any quota in respect to the number of searches performed by an individual police officer, and she had never been involved in any discussion with her superiors about the number of searches performed as part of an appraisal.

108. Munt maintained that the comment that you “get searched when mouthy” was mere banter; she denied being annoyed about Turner's earlier comment. She again denied that this comment demonstrated the reason why the plaintiff and Turner were searched, observing the decision to undertake the search was made prior to the comment. She agreed that the comment was unprofessional, and it should not have been said. The later ‘tough bitch’ comment, whilst the plaintiff was being searched, was not banter but said out of frustration. However, she again denied being frustrated by Turner’s earlier comment whilst the male was in custody in the gutter.

109. Munt was cross-examined on her failure to activate the camera whilst performing the strip search on the plaintiff. Munt acknowledged that when the camera is activated the person being filmed needed to be warned. While she maintained her earlier evidence that, in her own mind, the camera was on the whole time, she conceded that at no time had she warned the plaintiff this was the case. Munt further acknowledged that when activating the camera two beeps are heard. She acknowledged that at no time did she hear such beeps.

110. Munt's evidence in respect to her failure to activate the camera lacked creditability. She claimed, during evidence, that she was unsure as to whether the camera was activated, and it was for this reason that she made such an enquiry of her fellow police officer. However, this was inconsistent with the actual video which showed that a colleague specifically asked Munt whether her body video was on at the time the search was conducted. Munt's insistence that she believed the camera was on is inconsistent with the fact that she did not hear the two beeps at any time, and had not warned the plaintiff that the camera was activated. Further, Munt was particularly defensive when cross-examined on her comment in relation to the search being conducted in circumstances where the plaintiff was “mouthy".

111. Munt agreed that she was smiling whilst telling other officers that the plaintiff had been forced to the ground to have her necklace removed; this was because she thought the whole situation was “ridiculous". It is concerning that a police officer would find such use of force in respect to a person in police custody amusing. Munt’s demeanour in this respect, evident on the body cam video, is consistent with her earlier “mouthy" comment directed to the plaintiff. It is demonstrative of the unprofessional attitude adopted by the police in their dealings with the plaintiff on the day in question.

112. Munt justified performing the strip search in circumstances where she was concerned that the plaintiff may have been carrying a knife in her bra, despite the plaintiff wearing a tight dress. Her justification for requiring the plaintiff to remove the necklace, in that she was concerned the plaintiff may swallow the necklace, is difficult to accept in circumstances where Munt conceded there was no way the plaintiff was able to unlatch the necklace whilst wearing handcuffs.

Senior Constable Darnton

113. On 25 June 2020 Darnton prepared a statement in respect to the plaintiff’s prosecution. He denied that his failure to prepare the statement at an earlier time was because he thought that the plaintiff would simply plead guilty to the charges, and instead, cited a heavy workload as the cause of the delay. In his statement, Darnton referred to having earlier arrested the plaintiff and her partner Gaige Heckle (‘Heckle’) in September 2019 when they attempted to steal a car in his presence. Darnton stated that due to this incident he had become aware of the plaintiff's criminal history, and other information recorded on the COPS database. Darnton then referred to his interactions on the morning of 30 December 2019 with Turner and Brett Plummer (‘Plummer’), whilst patrolling Henry Street, Penrith in the company of Kelly. As result of this interaction, he became aware that Turner was on parole for the offence of robbery in company.

114. Darnton then referred to the incident with the plaintiff on the afternoon of the same day. He had observed the plaintiff and Turner walking in a southerly direction on Evan Street. He recognised Turner from the interaction earlier that morning as well as recognising Madden from the arrest in September. Darnton referred to having a “brief conversation” with Madden and Turner, whilst Kelly commenced conducting checks on a MOBIPOL device. He commented that while speaking to the plaintiff she was acting in a “peculiar manner by laughing and behaving immaturely". She was moving on the spot and unable to stand still. Darnton thereafter described the interaction as recorded on the body worn camera. Darnton then said the following:

“Due to my personal knowledge of MADDEN, the area she was in and the way she was acting I formed the reasonable grounds to suspect that MADDEN was in possession of a prohibited drug or an item in connection with a relevant offence. I intended on searching MADDEN pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002.”

115. In his statement Darnton referred to the following direction, recorded in the body cam video:

“You’re going to be detained for a search okay?” …

“Relax, for an item in connection with an offence or a drug OK. Just because of your history. What are you doing darling? Where are you living at the moment?”

116. The statement refers to searching “Madden's handbag". He said in the statement that “moments" after he commenced searching the handbag he located a large knife which was located “at the very top of the bag on top of clothing items”. He then said the following to the plaintiff:

"So, where are you living now Ebony? Because you are under arrest. My name is Senior Constable Darnton, you are under arrest for custody of a knife in a public place."

117. The statement records Turner as then saying:

“It's mine chief"

118. The statement documents the conversation which is otherwise recorded in the body cam video, which includes the following remarks made by Darnton directed to the plaintiff:

“Who has the last laugh now hey? …”

“You’re an interesting one Ebonie, I’ll give you that. Stealing a car in front of a police officer that’s a first for me.”

119. Darnton also refers to the later conversation with the plaintiff at the caged vehicle in which, relevantly, the following conversation took place:

Darnton: “Can you tell me why you are carrying around a knife in a public place Ebony?”.

Plaintiff: “I didn’t know it was in my bag.”

Darnton: “You didn’t know it was in your bag?”

Plaintiff: “No I honestly didn’t”.

120. He subsequently returned to Penrith Police Station where he created event number E72810337, including a “Facts Sheet outlining the circumstances of the incident that could be used for the charging process”.

121. Darnton gave evidence over three days. As a member of the Proactive Crime Team he regularly reviewed intelligence reports and attended team briefings. As of 30 December 2019, he had knowledge of the plaintiff’s criminal activities, including an interaction leading to her arrest and charge in September 2019. He also knew of the plaintiff through her partner Heckle.

122. Darnton gave detailed evidence of the earlier interaction with the plaintiff on 3 September 2019. As part of an ongoing investigation relating to Heckle, he had detected a stolen vehicle in Cranbrook. The owners of the vehicle were contacted and attended the scene. Whilst interacting with the owners, Heckle, in the company of the plaintiff, attempted to steal the motor vehicle.

123. Darnton gave detailed evidence of a subsequent altercation with Heckle and the plaintiff whilst they were both occupants of the vehicle they were attempting to steal. This included the plaintiff seeking to obstruct police who were attempting to enter the vehicle and remove Heckle from the driver’s seat. Eventually both were arrested and charged with various offences. A search of the stolen vehicle detected items including an imitation firearm, baseball bat, drug paraphernalia, identity documents, sledgehammer, ski mask balaclava, tools, and clothes. Subsequent enquiries in relation to the identification documents revealed that those documents were linked to previous break and enters and robberies. In cross examination, Darnton conceded that the plaintiff had not been charged with possession of these items, and instead, Heckle had made admissions that these items were his.

124. On 30 December 2019 Darnton was partnered with Kelly, commencing their shift at 7 am. As part of their morning bicycle activities, whilst riding through the CBD of Penrith, they sighted two males who appeared to be avoiding police. The males were subsequently spoken to. Darnton spoke to the male identified as Plummer who was searched, although nothing was found. Kelly spoke with Turner and later discovered that Turner was on parole.

125. In the afternoon Darnton was patrolling with fellow officers in an unmarked vehicle when they detected a male leaving a known drug house. The male was stopped and searched, and a knife and methamphetamine were found in his possession. He was issued with a court attendance notice. Shortly thereafter another male was spoken to who was sitting in a car nearby. It became apparent that this male was the subject of an outstanding arrest warrant, and he was arrested and remained at the scene on the side of the road.

126. Darnton then heard a conversation between Munt and two persons walking south on Evan Street. He recognised them as the plaintiff and Turner, to whom he had spoken earlier that morning. Darnton stated that he and Kelly engaged in conversation with the two individuals. He alleged that there was nothing sinister; they commonly engaged in conversations with people throughout their shift. He could not recall the precise details of the conversation although they “exchanged pleasantries" and there was a "bit of banter" which was not uncommon. When pressed, Darnton stated that his intention was to merely engage the two in conversation; that it was part of his role “to speak to all people of all backgrounds".

127. Darnton confirmed that searches were subsequently conducted, identifying the following factors justifying such a search:

1. He had a detailed knowledge of the plaintiff's criminal history - he had the benefit of the earlier interaction in September 2019 leading to her arrest and had also accessed her profile. The plaintiff was extremely well known for serious criminal activity, with more than 50 convictions including offences of violence and weapons. The information also revealed that she was a user of methamphetamine.

2. She had stolen a car in September 2019 knowing full well that there were police guarding that car.

3. The stolen vehicle contained items used in serious crimes.

4. The plaintiff's companion, Heckle, had been using methamphetamine in the days and weeks leading to the offence of September 2019.

5. Turner was on parole for robbery in company and possession of a drug.

6. The individuals were near a proven drug house.

7. The plaintiff was acting in a very peculiar manner.

1. From his previous experience he was aware that drugs and robbery were commonly linked as a means of financing a drug habit.

128. Taking all these matters into account Darnton formed the opinion that the plaintiff was either in possession of a drug or something else related to an offence. The significance of Turner's criminal history was that he was not linked to the area; he was originally from Orange. Darnton suspected that the plaintiff may have been taking Turner to the drug house. He acknowledged that he had not detailed in his previous statement the grounds upon which the search was conducted and that in hindsight it should have been contained in that document. However, he stated that at times it was difficult to know whether such material should be contained in the statement given it may be potentially prejudicial and inadmissible. He further acknowledged that such information was not provided in the original Facts Sheet. He noted that there were differing schools of thought as to whether such details should be contained in the Facts Sheet given it may be potentially made public and disclose police methodology.

129. Darnton then gave evidence of his interaction with the plaintiff, generally consistent with the video recording of such interaction once the body worn camera was activated. The bag that was searched was in Turner's possession. Darnton confirmed that the knife was located first and then other clothes and items in the bag including identification, seafood sauce, deodorant and “the typical things you find in a handbag”.

130. Darnton gave evidence about his conversation with the plaintiff regarding her previous partner and dropping him like a “hot potato”. Darnton suggested that this was no more than “banter" and that the tone was “light-hearted". He reluctantly acknowledged that when taken out of context the conversation did not sound “ideal" but claimed that it was in the context of his previous contact with the plaintiff and Heckle, including the circumstances in which they had previously been arrested. He claimed that the plaintiff was "being cheeky" and that they were both “having a laugh". Darnton stated that the decision was made to search the plaintiff in the context of observing her to be acting strange, bouncing from one leg to the other, fist pumping Turner and walking on the road and the grass.

131. He acknowledged that upon finding the knife he used the words “breach, breach”. He claimed that there was nothing malicious in this statement; he was simply adopting a phrase that a previous officer commonly used. Darnton acknowledged that when he informed the plaintiff that she was under arrest he used a “light-hearted tone" although it was no more than a continuation of the “banter" with her. He arrested the plaintiff (at the time the handcuffs were placed upon her) as was not sure where she was living. He considered it was reasonable the plaintiff should appear before a court in circumstances where he was aware the plaintiff had a number of failures to appear before a court, there had been numerous breaches of bail conditions, a history of failing to appear before a court and he was unaware as to where she was living.

132. Darnton gave evidence of the exchange between the plaintiff and Munt regarding her concerns of being searched in the presence of male officers. Munt escorted the plaintiff further down the street as she was getting upset and the decision was made to move her away from the area. The plaintiff was subsequently transported to Mount Druitt as the Penrith charge rooms were full.

133. When asked about his comment, contained in the video, that “this is the gift that keeps giving", he noted there had been two prior arrests that day and they had now are found three people committing offences in the one place.

134. As to the circumstances in which the charge of resist officer in execution of duty was laid, Darnton stated that he did not create the indictment. Upon returning to Penrith Police Station, he created a COPS event and completed the Facts Sheet. He stated that the creation of a charge was a separate feature in the COPS system and was done by police at Mount Druitt Police Station. It had been completed by Constable Tamruksa (‘Tamruksa’).

135. He claimed to have been “under the pump" to complete the Facts Sheet given the time of day and that his supervisors were not prepared to pay for overtime. At the time he had family visiting and was trying to do his best to get home as quickly as he could. Further he was working the following day a New Year's Eve shift and he was anxious to see his family whilst they were down in Sydney. Darnton stated that he remained after his shift for several hours had finished to complete the Facts Sheet, accepting that this was his priority. Darnton stated that the Facts Sheet was completed “to the best of his ability" although he was aware that there were things “missing".

136. Darnton gave evidence that he was not responsible for writing that section of the Facts Sheet in relation to the plaintiff’s antecedents. He assumed it was Tamruksa given his name appeared on the document. He denied being involved at all in issues relating to the plaintiff's bail determination. Similarly on 31 December 2019 he did not have a discussion with any person in relation to bail including the police prosecutor. Between 30 December 2019 and when the matter was dismissed the following year, he had no discussions with any prosecutors nor was there any suggestion that there were any issues with the prosecution.

137. He explained the process involved in the preparation of a brief, once requested by the prosecutors. The initial brief merely consisted of the statement of Munt together with a Facts Sheet, witness list and the body worn footage. He did not serve his own statement at that time as he considered it was sufficient to provide the body worn footage along with the statement of Munt. Further he had other competing work priorities including a significant workload. His statement was ultimately prepared in June 2020 having been prompted due to the impending hearing.

138. Darnton accepted that he was the relevant informant on the charges and they were laid as he believed they had a reasonable prospect of conviction. He believed there was sufficient evidence to have the matter put before the Court. He denied that his previous interaction with the plaintiff in September 2019 had any impact on his decision to commence proceedings. Similarly, he denied that the plaintiff being on parole influenced his decision to commence and/or maintain the proceedings.

139. Darnton accepted that the draft Facts Sheet did not refer to the fact that the bag was being carried by Turner at the time they were stopped. He believed at the time of preparing the Facts Sheet, that it was the plaintiff who was carrying the bag. He acknowledged this was wrong having later viewed the video footage. He further acknowledged that the Facts Sheet did not record the fact that Turner had said the knife was his. Darnton claimed that this was because he had not actually heard Turner say it at the time, whilst acknowledging that this was recorded on the video footage. He accepted that, upon reflection, he should have watched the body worn footage prior to drafting the narrative contained in the facts.

140. Darnton conceded that the items located in the handbag were generally male, although there was some female clothing which was not the subject of any charge.

141. He denied that the proceedings were commenced against the plaintiff to punish her, but merely to invoke the criminal law. He denied that the material omissions from the Facts Sheet were for the purposes of having the plaintiff’s parole revoked or her bail refused, to mask the absence of a reasonable or probable cause.

142. Darnton conceded that he communicated with the plaintiff’s then legal representative by email. He indicated that it was common for him to liaise with defence lawyers at “the commencement of my matters" to see if things can be resolved prior to a defended hearing. It was consistent with his general belief that it was efficient and saved the time of police and the Court. He denied any communication with the State Parole Authority in respect of the plaintiff’s parole. He was not present at the release applications in respect to the plaintiff and did not have any contact with the prosecutor in respect to any such application.

143. In cross examination Darnton accepted that productivity of the Proactive Crime Team was to an extent measured by the number of searches, although this was a matter for senior management. A large part of his role was detecting and preventing crime with the role involving a mixture of response and proactivity. He acknowledged that on the day of the incident it was more proactive.

144. Darnton considered he was well versed and familiar with the powers under s 21 of LEPRA which included the power to stop, detain and search. Whilst he acknowledged they were separate powers; it was his understanding that the power to stop was inextricably linked to the power to search.

145. Darnton initially denied that he had stopped Turner on the morning of 30 December 2019. He was taken to the video where Turner and Plummer stopped after Kelly rode his bike towards them. When it was again suggested that the two males had effectively been stopped by police, he claimed it was not uncommon for police to ride around and speak to “lots of people from different walks of life”, including at hotels and shopping centres. The mere fact that they would have a conversation with someone did not mean that they were being stopped in accordance with their power under s 21 of LEPRA.

146. Darnton’s evidence, when cross-examined in relation to police interactions with Turner and Plummer, was unconvincing, and at times evasive. When pressed he maintained his position that he was doing no more than “having a conversation" with them. He continued to deny that he was exercising any powers to stop under s 21. Indeed, he denied that when he directed Turner to move to a different area of the footpath, he was exercising any police power. He continued to equate such interaction with “general chitchat” or “banter”. He denied there was any conscious decision to stop and speak to the two individuals even though the video recorded the two police riding together before separating so as to approach them from different directions. He claimed to have had no specific recollection for approaching the individuals from different directions. He denied that they were effectively attempting to trap Turner and Plummer. It was only when further pressed that Darnton reluctantly agreed that they were exercising powers under s 21 when interacting with the two males.

147. Darnton's evidence on this issue lacked credibility. His initial denials that the interaction involved exercising powers under s 21 reflected poorly on his credit, and it was only when pressed by reference to the objective video evidence, that Darnton ultimately conceded that they were indeed exercising such powers.

148. I do not accept Darnton’s evidence that at the time he did not believe he was exercising powers under s 21 and that it was only, upon reflection, that he agreed this was the case. At the time of the incident Darnton had been a police officer for 7 years and professed to have a good working knowledge of his powers under s 21. They were powers, by his own admission, that he regularly exercised in the course of his duties as part of the Proactive Crime Team. For Darnton to claim, despite this experience, that he did not believe he was exercising powers under s 21 when interacting with Turner and Plummer, is not credible.

149. His evidence that Plummer and Turner were acting under their own free will, and not complying with directions of police in accordance with powers under s 21, similarly lacks credibility. It was apparent, following further cross-examination of Darnton, that there was no legal basis to stop and search the individuals in circumstances where the test required by s 21 was not satisfied.

150. Darnton agreed that on the same day, but at different times, he had told Plummer and the plaintiff they would be searched for “an item in connection with an offence and prohibited drug”. However, he denied this was a standard line used by him when exercising his search power under s 21.

151. As to his remark, directed at Munt, that “we have our cameras on Sarg”, Darnton stated that he felt the need to remind her as he did not think that her “mouthy” comment was appropriate. He denied that the plaintiff and Turner had been stopped because they had been “mouthy”.

152. Darnton was referred to evidence he had given in the Local Court that he had stopped the plaintiff because he recognised her. Darnton contended that at that time she would have been free to walk away had they elected to do so. He denied they had positioned themselves on either side of the plaintiff and Turner to essentially trap them, referencing a similar approach, on the bikes, when stopping Plummer and Turner earlier that day.

153. He denied the plaintiff and Turner had told him they were going to the Jamison Hotel. Whilst conceding he had not seen them coming from the drug house, he maintained that he had a suspicion that was where they were going.

154. When asked why he had not made mention in the Local Court proceedings of Taylor being an associate of the plaintiff, or an occupant of the drug house on Evan Street, Darnton responded, “There’s a lot of things I didn’t say in the Local Court proceedings”.

155. Despite being unsure when giving evidence a day earlier as to whether he had knowledge of Taylor being linked to the known drug house at the time of the plaintiff’s arrest, Darnton later referred to records which confirmed that he had that knowledge prior to her arrest on 30 December 2019. He explained that the records showed that he had conducted searches on Ms Taylor in November 2019 and that he therefore had that knowledge prior to arresting the plaintiff.

156. Darnton believed that the plaintiff had been carrying the bag containing the knife, t-shirt and men’s underwear, the items subject to two of the charges. It was not until “some time after” that he realised this recollection was untrue.

157. When pressed on this issue, Darnton maintained that he believed the plaintiff was carrying the bag, despite the body worn footage showing that it was Turner who had been carrying the bag before placing it between his legs, from where Darnton retrieved it. After being shown the body worn footage, Darnton agreed that his recollection was incorrect and agreed that at no point in the body worn footage did Turner hand the plaintiff the bag.

158. Darnton agreed that the charge of custody of a knife in a public place would require proof that the plaintiff had immediate de facto control or charge of the knife, however, he disagreed with the proposition that there was no evidence to this effect. He told the Court that at the time of the arrest, he had every reason to believe that it was the plaintiff’s bag, including that she was standing in “the immediate vicinity next to the bag”, which he says he thought was “still enough” to prove custody. This is despite his further concessions that the plaintiff had appeared shocked when the knife was found in her bag, and that she had told him several times, while she was in the back of the police vehicle, that she did not know that the knife was in her bag.

159. Further, Darnton maintained that he had not heard Turner say, “it’s mine chief”, with reference to the knife, adding the comment, “unfortunately, body worn video picks up things that you don’t pick up”.

160. He agreed that he had arrested the plaintiff immediately upon finding the knife, despite being aware of the principle that arrest is an option of last resort. Darnton conceded that at the time of the plaintiff’s arrest, she had been stopped by him under s 21 of LEPRA and as result, was “not going anywhere”. However, rather inconsistently, he denied the proposition that this would reduce the need to hastily arrest the plaintiff.

161. Darnton agreed that he had not said the words “you are under arrest” in a traditional fashion, however, denied doing so in a mocking tone. Instead, he claimed he was being “light-hearted” and “having banter”. When his choice of word “banter” was questioned, given he was arresting the plaintiff, Darnton told the court that he was “keeping it in jest”. He later agreed that the action of applying the handcuffs immediately after her arrest was not done in jest. For Darnton to claim that his tone was one of jest and banter, in serious circumstances where he was placing the plaintiff under arrest, lacks credibility.

162. In relation to the goods in custody charge, Darnton agreed that the prosecution would need to establish, beyond reasonable doubt, that the plaintiff had personal custody of the men’s underwear and white t-shirt. He maintained that he honestly believed in the case against the plaintiff in respect of this charge, despite agreeing that Turner had told him that the items were his, having them purchased them from Kmart Mount Druitt on that same day. After watching the body worn footage, Darnton also conceded that Turner had been carrying the bag which contained the items.

163. Darnton conceded that prior to December 2019 he had issued several Court Attendance Notices in relation to a custody of knife in public place charge. He was familiar with s 11C of the Summary Offences Act 1988 and agreed that the defence of reasonable excuse was available.

164. Darnton agreed, by reference to the Facts Sheet, that he had positively asserted to the Local Court that the plaintiff knew that she had custody of the knife and could not supply a reasonable excuse for having custody. He denied this was false as he had asked the plaintiff why she had a knife, and she was unable to explain it. When it was put to Darnton that the plaintiff had told him, as captured in the body worn footage, that she did not know that she had the knife in the bag, he stated that this was an excuse used by many people who were charged with the offence, and that people often lie to police.

165. Darnton conceded that he failed to include the following in the NSW Police Facts Sheet in relation to the knife charge:

1. The plaintiff had told him that she did not know that the knife was in the bag.

2. The plaintiff said that she had not seen the knife before.

3. The plaintiff was not in possession of the bag, and instead it was Turner who had custody of the bag.

4. Turner had admitted it was his knife.

166. Darnton conceded that he had failed to include the following in the NSW Police Facts Sheet in relation to the good in custody charge, despite agreeing that the matters would have been in his mind at the time of drafting the facts:

1. Turner had claimed ownership of the men’s underwear and the t-shirt.

2. The underwear was men’s underwear.

3. Turner had said he had purchased the items from K-Mart in Mount Druitt.

167. Darnton agreed, with reference to his duty book (Ex P5), that he had been working wholly on the plaintiff’s case for approximately an hour and a half. He agreed this was “plenty of time” to “draft an accurate Facts Sheet”.

168. When questioned, Darnton claimed that he did not know why he had failed to include these matters in the Facts Sheet. When put to him that these matters, which had not been mentioned in the Facts Sheet, were important, Darnton stated that “in hindsight, yes, they are”. Despite these concessions, Darnton disagreed with the proposition that he had deliberately left these matters out of the Facts Sheet, and when this matter was pressed, he claimed that the omissions were an oversight, referable to him being in a rush. Darnton accepted that the information in the Facts Sheet was neither credible nor trustworthy, although claimed that this was only with the benefit of hindsight.

169. Darnton went on to accept that his failure to disclose all evidence in the prosecution case, good and bad, was in breach of his common law duty, however, plainly denied that this breach was deliberate. He further denied the suggestion that in creating this particular Facts Sheet he intended to harm the plaintiff by having her bail refused.

"… it is an important principle of law that no man has the right to deprive another of his liberty except according to law, and if he does so the person so unlawfully deprived has the perfect right to use reasonable efforts to beat him off and get out of his custody"

294. For the reasons already given, I am satisfied that the arrest of the plaintiff for having custody of a knife in a public place was unlawful. Accordingly, the subsequent conduct of Munt, in searching the plaintiff and forcibly removing her necklace, following the arrest, was similarly unlawful. In the circumstances the plaintiff was resisting the three police who were acting unlawfully.

295. Applying the subjective test, I am satisfied that Darnton did not honestly believe the charge of resist officer in the execution of their duty in circumstances where I do not accept Darnton honestly believed in the offence for which the plaintiff was arrested, being custody of a knife in a public place. In any event, I am satisfied that Darnton had no sufficient basis for a belief in the charge of resist officer in the execution of their duty. Accordingly, I am satisfied that the prosecution brought and maintained in respect to the charges of custody of a knife in a public place, and resist officer in the execution of their duty were brought and maintained without reasonable and probable cause.

Malice

296. In A v New South Wales, the majority stated at [91] and [92]:

“What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an “illegitimate or oblique motive” (98). That improper purpose must be the sole or dominant purpose actuating the prosecutor (99)."

“But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose.”

297. The majority further observed that proof of malice “will often be a matter of inference" although it cannot be mere “conjecture or suspicion": at [93]. It “focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law": at [93].

298. Importantly, the majority further observed that at [90]:

“…if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause.”

299. In Trobridge v Hardy [1955] HCA 68; 94 CLR 147, Kitto J, in the context of a jury trial, said at [163]:

“If they think it more probable than not that the prosecutor lacked the belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malice, even though they may not feel able to say precisely what the malicious motive was.”

300. The following evidence is probative in determining this issue:

1. Darnton spoke to the plaintiff in a condescending and mocking manner. He teased the plaintiff in respect to her relationships, suggesting that she had “ditched" and “dropped like a hot potato” her previously known partner, Gaige. In the presence of the plaintiff, Darnton said to Turner, again in a mocking way, “you and Gaige are mates and now you’ve hooked up with his Mrs”.

2. When Darnton found the knife, he announced in a grandiose tone “breach, breach".

3. In the absence of any enquiry at all, and knowing the bag had been taken from Turner’s possession, Darnton immediately moved to arrest the plaintiff. This was in circumstances where the evidence equally, if not more likely, pointed towards a charge of custody of knife in a public place being laid against Turner.

4. Darnton informed the plaintiff that she is under arrest in a grandiose tone. Darnton gave the following evidence in this respect (T396 at 46 – T397 at 19):

“Q. The time is 16:31:34. You say the words, “You are under arrest.” You don’t do so in a traditional fashion, do you?

A. No.

Q. You seem quite overjoyed that you’re arresting the plaintiff.

A. Not overjoyed, no.

Q. But you use a mocking tone, don’t you?

A. Keeping it light-hearted. She’s giving us banter. Well, sorry, not banter. She’s giving us - there’s a bit of backwards and forwards between both of us. Yes.

Q. You say banter, but you’re arresting someone.

A. Keeping it in jest, I guess.

Q. Telling someone that--

A. It was all in jest, I guess.

HIS HONOUR

Q. Telling someone they’re under arrest, you’re doing so in jest. Is that what you’re saying?

A. I guess so, your Honour. Yes.”

5. Following the plaintiff's arrest Darnton says to the plaintiff “who has the last laugh now, hey?". When cross-examined on this comment Darnton said the following (T433 at 26 – 36):

“Q. “Who has the last laugh, now, hey?” That was a spiteful and nasty comment to make, would you agree?

A. It probably wasn’t appropriate. I’d accept that.

Q. Cause you’re telling her that you’re having the last laugh, you’re getting her back for being cheeky with you. Correct?

A. No - I, look it probably wasn’t the most appropriate thing to say, considering the whole circumstances. All I would say is she was giving us cheek, I guess, a bit of - she was being belligerent, I made a comment back, yeah, it’s probably, wasn’t appropriate in the circumstances, I accept that.”

6. During his exchange with the plaintiff, Darnton makes several unjustified and out of context references to his previous interaction with the plaintiff:

“You’re an interesting one, Ebonie, I’ll give you that. Stealing a car in front of a police officer, that's a first for me"

“Ebonie, behave all right, stop acting like an animal…”

“Behave like an adult please, darling…”

“You carried on like this last time"

“… so, you were out for Christmas, were you?...Wow” (referencing the plaintiff’s time spent in custody arising from Darnton’s arrest of the plaintiff in September 2019)

7. Darnton deliberately omitted important exculpatory evidence relevant to the charges laid against the plaintiff in a fact sheet prepared within hours of the plaintiff’s arrest.

8. The relevant omissions were done with the purpose of withholding material information from those who would determine whether the plaintiff should be granted bail.

301. I accept the plaintiff's submission that Darnton was motivated by a personal animus he had against the plaintiff. This was evident from the way Darnton interacted with the plaintiff on the day in question, his immediate decision to arrest the plaintiff without further enquiry, the mocking and grandiose tone when finding the knife and subsequently arresting the plaintiff. It was further supported by the way Darnton spoke to the plaintiff, unjustifiably accusing her of acting like an “animal" and addressing her in a condescending tone, adopting the phrase “darling". It is no coincidence that during these interactions, Darnton made repeated references to the previous incident in which the plaintiff had directed a degree of violence towards him. Darnton’s subsequent conduct in deliberately omitting material exculpatory evidence from the Facts Sheet further supports the finding of malice.

302. As the plaintiff submitted:

“An uncompromising prism into SC Darnton’s attitude towards the plaintiff is available in the BWC footage, which should not be considered in isolation. Rather, it should follow directly into an analysis of the motive behind and manner of her prosecution…(Darnton) made demeaning observations as to her conduct of intimate relationships, erupted with joy that there had been a purported “breach”, and mirthfully announced to a vulnerable young girl who had just been released from jail that “Youuuuuu are under arrest”, SC Darnton promptly suffered a major episode of amnesia in relation to the key matters of importance concerning the case against her (or lack thereof) which he formalised by way of charges shortly thereafter. SC Darnton’s purported amnesia only existed in relation to exculpatory matters, led to a Facts Sheet that was stacked against the plaintiff in a way that completely misrepresented the case, and was fortified by a direct lie at page 4 of the Facts Sheet in the assertion that the plaintiff was unable to articulate a defence to the knife charge.

The cumulative effect of SC Darnton’s conduct leads, at each turn, to the conclusion that he conducted himself maliciously in relation to the plaintiff at all material times…. put simply, the proper invocation of the criminal law was pushed aside by the Senior Constable’s personal animus.

The cumulative effect of Darnton’s conduct leads, at each turn, to the conclusion that he conducted himself maliciously in relation to the plaintiff at all times”

303. I accept this submission.

304. The evidence supporting the prosecution of the plaintiff for custody of a knife in a public place, being the offence for which she was arrested, was clearly insufficient to support such a prosecution for the reasons already discussed. This further underpins a finding that Darnton commenced and pursued the prosecution for a purpose other than a proper purpose (the proper invocation of the criminal law). In all the circumstances, I am satisfied that the plaintiff was prosecuted maliciously.

Damages

General Damages for false imprisonment

305. Whilst the plaintiff notes that damages for the tort of false imprisonment compensate for the loss of liberty, as well as the loss of dignity and reputation, she conceded that no component of the damages claimed was for reputational loss.

306. In Ruddock v Taylor [2003] NSWCA 262 Spiegelman CJ observed at [49]:

“Damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate. A substantial proportion of the ultimate award must be given for what has been described as “the initial shock of being arrested”.”

307. Counsel for the plaintiff quite properly conceded at the commencement of the hearing that the initial shock for the plaintiff would not be as significant as someone who had never been arrested before.

308. Damages for false imprisonment are to be assessed for the period from 4:30 PM on 30 December 2019 until remanded in custody by Price LCM on 31 December 2019. It is unclear from the Local Court records as to the precise time on 31 December 2019 that bail was refused, and the plaintiff was remanded in custody. However, the difference of several hours will not significantly impact on the assessment of damages for false imprisonment in circumstances where the damages are relatively modest.

309. The plaintiff claims the sum of $15,000 noting Taylor SC DCJ in Attalla v State of NSW [2018] NSWDC 190 awarded the plaintiff general damages of $15,000 for a false imprisonment which lasted under an hour. The defendant contended that an appropriate award was $2000, given the award of damages by RS Hulme AJ in Fred Saad and Ors v State of New South Wales [2016] NSWSC 1247 in circumstances where the plaintiff had been arrested previously and there was unlikely to be any claim for reputational damage.

310. In all the circumstances and taking into account the period during which the plaintiff was falsely imprisoned, her previous record and the absence for any claim of reputational damages, I assess general damages for the false imprisonment at $8,000.

General damages for battery

311. The plaintiff claims the sum of $20,000 arising from the agreed incidences which gave rise to the battery. The defendant contends that an appropriate assessment is $4000. The plaintiff was subjected to the initial battery arising from the application of handcuffs and the pat search. There is also the incident, captured on the body cam footage, when Munt places her hands on the plaintiff's shoulders attempting to force her to the ground. However, the most significant aspect of the battery was when the plaintiff was removed from the police vehicle and forced to the ground and the necklace removed. The plaintiff described this incident in the following terms:

“…and I was just sitting there and then she got – notified the two – other two, other officers beside her two – and they came and got me out of the paddy wagon and laid me on the ground and two of them held me down while she took the necklace off my neck."

312. At the time this occurred the plaintiff was wearing handcuffs. When asked how she felt during this incident the plaintiff said:

“I felt really upset, I didn't like it. Just I didn’t like it and was really upset."

313. I do not accept, given the circumstances in which it occurred, that the so-called “strip search" constituted a battery.

314. Taking into account all the incidences giving rise to the claim for battery, I assess general damages in the sum of $15,000.

Aggravated and exemplary damages for false imprisonment and battery

315. The grounds for the award of aggravated and exemplary damages, and the distinction between the two, were discussed by the Court of Appeal in State of New South Wales v Abed (2014) 246 A Crim Report 549 at [230] – [232] as follows:

“The principles upon which aggravated and exemplary damages are awarded are well established and were not in issue on the appeal. The principles were summarised by Sackville AJA (Macfarlan and Whealy JJA agreeing) in New South Wales v Zreika [2012] NSWCA 37 at [60]-[64]. It is necessary to keep in mind the conceptual distinction between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages. The assessment of aggravated damages is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant.

Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8. Aggravated damages are given to compensate the plaintiff when the harm done to him or her by a wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 (Windeyer J).

Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future, and to reflect “detestation” for the action: Lamb v Cotogno at 8. Generally speaking, what is required for an award is “conscious wrongdoing in contumelious disregard of another’s rights”: Gray v Motor Accident Commission (1998) 196 CLR 1 at [14].”

316. The defendant contends that in awarding aggravated or exemplary damages, the court should have regard to “the plaintiff’s own disentitling conduct”, citing Whitbread v Rail Corporation New South Wales [2011] NSWCA 130.

317. I accept the plaintiff is entitled to an award for aggravated damages caused by the assault and humiliation, particularly the circumstances in which it occurred. The police directed a great deal of animosity towards the plaintiff, as well as speaking to her in a condescending and demeaning way. The subsequent treatment of the plaintiff by Munt during the forcible removal of the necklace further gives rise to an award for aggravated damages. I do not accept the defendant's contention that the plaintiff engaged in disentitling conduct.

318. I award the plaintiff $10,000 for aggravated damages in respect to the false imprisonment and an additional $10,000 for aggravated damage arising from the assault and battery.

319. In respect to exemplary damages, it is important that any such award reflects the disapproval of the court in the conduct of the police involved and to deter such conduct in the future. It is readily apparent that the detention and search of the plaintiff was in direct response to the comments made by Turner and the plaintiff to Munt. The later “mouthy” comment by Munt, in the context of the search, and the “last laugh” comment by Darnton, self-evidently demonstrates that the police motivation in detaining and searching the plaintiff was improper, and entirely inappropriate.

320. As part of their duties, police are interacting with members of the public on a daily basis. It is important that police not abuse the special powers vested in them, involving the deprivation of a citizen’s liberty, merely in response to comments made by members of the public such as those which occurred in the present case. The award of exemplary damages reflects the court’s detestation and abhorrence for the police conduct. It is intended, in part, to deter police in the future engaging in such conduct. It is in these circumstances that it is appropriate that an award of exemplary damages is made. I award the plaintiff $20,000 by way of exemplary damages for false imprisonment and a further $20,000 in respect to the battery.

General damages for malicious prosecution

321. The plaintiff claims damages for her period of incarceration from 31 December 2019, when bail was refused until her release by the State Parole Authority on 17 June 2020.

322. The defendant contends that there would be no award for damages for this period. First, it is contended that no damages would be awarded for “normative considerations” in that the plaintiff was at all material times serving a sentence for criminal offences. Second, on a causation analysis the charges laid by Darnton were not the reason for the plaintiff being detained and/or that the plaintiff’s time in custody was not the intended nor the natural and probable consequence of the laying of the charges.

323. The defendant's contentions arise from the fact that the plaintiff was on parole at the time of her arrest. In this respect the plaintiff had been sentenced to an aggregate term of imprisonment of three years from 9 May 2018 expiring on 8 May 2021, with a non-parole period of one year six months which expired on 8 November 2019. Accordingly, at the time the plaintiff was arrested she had been released on parole.

324. On 2 January 2020 a breach of parole report was completed recommending the plaintiff's parole be revoked. The breach of parole report noted that the plaintiff was in breach of her parole due to the failure to comply with conditions of her parole that she be of good behaviour, not commit any offences and adapt to a normal community life. It was noted that the plaintiff had been bail refused in respect of the three offences the subject of the proceedings. The breach of parole report made the following recommendation:

“It is of concern to Community Corrections that Ms Madden has reoffended in the short period she has been subject to parole supervision. Due to Ms Madden being bail refused for her new offences, and her history of significant violence, revocation is recommended." (Emphasis added)

325. On 9 June 2020 the plaintiff was granted bail in the Local Court following a full service of the brief, and the Court having assessed the strength of the prosecution case. On 16 June 2020, the State Parole Authority rescinded the earlier revocation of the plaintiff's parole, and ordered the plaintiff's release as soon as possible, but no later than 4pm on 17 June 2020. The reason for the rescission was recorded as follows:

“1. The offender has been granted bail on the outstanding charges.

2. The young age of offender.” (Emphasis added)

326. The plaintiff contended that she was entitled to damages for loss of liberty “as a natural and probable consequence” of her malicious prosecution.

327. The defendant conceded in submissions that ultimately the predominant cause of the plaintiff's parole being revoked were the charges (plural) arising from the prosecution. The defendant alternatively contended that should the Court find that the plaintiff was maliciously prosecuted for one, or even two of the charges, but not all three, it could not follow that the plaintiff should be compensated for the period spent in custody.

326. A reading of the breach of parole report and subsequent reasons for recission of the parole lead to the finding that the plaintiff's parole was revoked as a consequence of the plaintiff being bail refused on the three charges the subject of the prosecution.

327. The offence to which the Court has found that the plaintiff was not maliciously prosecuted is the lesser of the three offences. The offence of custody of knife in a public place carried a maximum term of imprisonment of two years whilst the resist officer carried a maximum period of imprisonment of five years. This is to be contrasted with the goods in custody charge carrying a maximum term of imprisonment of six months.

328. I am satisfied that the natural and probable consequence of the plaintiff's malicious prosecution for the offences of custody of knife in a public place and resist officer was a period of incarceration as a result of the plaintiff being bail refused and having her parole later revoked. It is readily apparent that whilst the laying of charges was a consideration of the parole authority, the predominant reason for the plaintiff's revocation of parole, and the subsequent rescission of that revocation, was the plaintiff being bail refused.

329. The plaintiff contends that general damages would be assessed in the sum of $210,000, noting the assessment of damages by Harrison J in Beckett. The defendant contends, adopting the approach in Hrdavec v State of New South Wales (2021) NSWSC 560 and Edwards v State of New South Wales (2021) NSWSC 181, that an appropriate assessment would $170,000. However, the defendant contends that this should be further reduced, taking into account that the plaintiff was already on conditional liberty on parole, it was not the plaintiff’s first time in prison, no claim was made for reputational or fame damages and for the entire period in any event, the plaintiff was serving a form of criminal sentence, albeit on parole.

330. The plaintiff concedes that the damages may be “slightly" reduced on account of the fact that the plaintiff was on conditional liberty based on the conditions set by the parole authority.

331. I assess general damages in the sum of $150,000.

Exemplary damages for malicious prosecution

334. The plaintiff further claims exemplary damages in the sum of $100,000. The defendant makes no further submission in respect to exemplary damages. I am satisfied, given the conduct of Darnton in the bringing and maintaining the prosecution, it is appropriate exemplary damages be awarded. In support of the claim for exemplary damages, referencing the contents of the Facts Sheet, leading to the plaintiff’s bail refusal, the plaintiff submitted as follows:

“The threat to the administration of justice of police officers presenting grossly inaccurate recitations of a criminal case, particularly in relation to vulnerable persons who are represented on the day of their arrest in busy courts by overstretched lawyers at Legal Aid and the Aboriginal Legal Service, is difficult to overstate. The functionality of s 31 of the Bail Act 2013 (NSW) which permits such documents to be tendered on the basis that they are “credible or trustworthy” is corrosively undermined by such conduct in a systemic way. This is presumably why the relevant training materials used by the NSW Police declare that “importance [of a Facts Sheet] in communicating to the court the details of the police allegations against an accused cannot be overstated” (Ex P32).”

335. To this should be added that the training materials further state:

“A facts sheet should therefore be an informative, accurate, concise and logical document.”

336. I accept this submission.

337. Further, it is apparent that Darnton adopted, as the plaintiff submitted, “a contemptuous attitude towards the process of the Local Court".

338. In all the circumstances, I assess exemplary damages in the sum of $75,000.

Damages summary

Head of damage	Damages assessed
General damages for false imprisonment	$8,000
General damages for battery	$15,000
Aggravated damages for false imprisonment	$10,000
Aggravated damages for assault and battery	$10,000
Exemplary damages for false imprisonment	$20,000
Exemplary damages for battery	$20,000
General damages for malicious prosecution	$150,000
Exemplary damages for malicious prosecution	$75,000
Total	$308,000

339. I attribute $200,000 of this sum to the past, and in accordance with MBP (SA) Pty Limited v Gogic (1991) 171 CLR 57, I calculate interest at 2% per annum for three years from 30 December 2019 (rounding up).

340. The total assessed amount, including interest, is $320,000.

Orders

341. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $320,000.

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered.

3. The exhibits may be returned.

4. Liberty to apply on 7 days notice if further orders are required.

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Decision last updated: 16 December 2022