Makri v State of New South Wales

[2015] NSWDC 131

District Court

New South Wales

Medium Neutral Citation:	Makri v State of New South Wales [2015] NSWDC 131
Hearing dates:	11, 12 and 13 May 2015
Date of orders:	19 June 2015
Decision date:	19 June 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Plaintiff pay defendant’s costs. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT - assault - plaintiff and his associate arrested by police after being found in possession of a motorcycle reasonably suspected of being stolen - whether the placing of handcuffs on the plaintiff as part of that arrest constituted an unreasonable use of force and thereby constituted the tort of assault and battery on the plaintiff - damages
Legislation Cited:	Evidence Act 1995 (NSW), s 66 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230 and 237 Police Act 1990 (NSW), ss 6 – 8 Uniform Civil Procedure Rules 2005 (NSW), rr 12.6 and 42.35
Cases Cited:	Adams v Kennedy (2000) 49 NSWLR 78 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Attorney-General for NSW v Perpetual Trustee Company Ltd (1954) 92 CLR 113 Cassell & Co Ltd v Broome [1972] 2 WLR 645 Chen v New South Wales [2014] NSWCA 41 Clavel v Savage [2013] NSWCA 775 Container Terminals Australia v Huseyin [2008] NSWCA 320 Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 DPP v Gribble [2004] NSWSC 926 Hallam v Ross (No 2) [2012] QSC 407 Hill v Richards [2011] NSWCA 291 Innes v Weate [1984] Tas R 14 Johnson v Phillips [1975] 3 All E R 682 Jones v Dunkel (1959) 101 CLR 298 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Lamb v Cotogno (1987) 164 CLR 1 Lane v Holloway [1968] 1 QB 379 LVMH Watch & Jewellery Australia Pty Ltd v Lassanah [2011] NSWCA 370 Maile v Rafiq [2005] NSWCA 410 Mason v Demasi [2009] NSWCA 227 Mastronardi v State of New South Wales [2009] NSWCA 270 Mather v Smith [2014] QCA 65 McCarthy v State of New South Wales [2013] NSWDC 247 McIntosh v Webster (1980) 43 FLR 112 New South Wales v Ibbett (2006) 229 CLR 638 New South Wales v Tyszyk [2008] NSWCA 107 R v K (1993) 118 ALR 596 R v XY (2010) 79 NSWLR 629 Silver v Dome Resources NL [2005] NSWSC 265 State of New South Wales v McCarthy [2015] NSWCA 153 State of New South Wales v Zreika [2012] NSWCA 37 Tilden v Gregg [2015] NSWCA 164 Woodley v Boyd [2001] NSWCA 35
Texts Cited:	-Click here to enter text.
Category:	Principal judgment
Parties:	Plaintiff: Christopher Makri Defendant: State of New South Wales
Representation:	Counsel: Plaintiff: Mr L Nicholls Defendant: Ms G F Mahony Solicitors: Plaintiff: Kapsis & Associates Defendant: McCabes Lawyers
File Number(s):	2014/224089
Publication restriction:	None

Judgment

The plaintiff’s claim for damages

1. By statement of claim filed 30 July 2014, the plaintiff brings proceedings for assault and battery against the defendant arising from the circumstances in which he was arrested and charged on 19 June 2013.

The circumstances leading to the plaintiff’s arrest

2. At 11.30 p.m. on 19 June 2013, Constables Bailey and Martin observed a white van double parked outside 17 Ocean Street, Bondi. As their vehicle approached, they observed a person jump in, on the passenger side, and the van quickly drove away, travelling north and left onto Martins Avenue. They followed the vehicle around the block and activated lights and sirens for the van to pull over. The van pulled over, but started rocking and bouncing, suggesting frantic movement inside. The officers were unable to see into the vehicle as all windows were darkly tinted. Constable Martin watched as Constable Bailey approached to give a breath test, noted “two heads on board” (i.e. two persons; Exhibit 4) and called for back-up. Constable Bailey then called out “4 heads on board”, so Constable Martin asked the radio operator to speed up the back-up vehicle (Exhibit 4).

3. Constable Bailey called out that there were “four heads on board” after the driver, a Mr Nedanovski, told him, in response to his inquiry as to what was in the back, that “two mates” were in the van. He was already suspicious of the occupants because of his earlier observations of the departure of the van, and its violent shaking after stopping. The driver told him he had come to Bondi for a chicken burger. Constable Bailey replied that the shops had long since closed. He asked why the van had been double-parked and driven off on police approach, to which the driver replied that the police vehicle looked suspicious.

4. An “alco test” was administered to the driver and was negative. Registration checks had revealed that the van was registered to a woman living out of the area. Constable Martin asked the plaintiff why they were in the area. He said they were “here to pick up a job” as he carried out motorcycle recovery maintenance and general repairs. When asked for his licence he produced a proof of age card and said he was a disqualified driver. Constable Martin asked if he had been driving and the plaintiff denied this.

5. The police asked to search the vehicle. The plaintiff agreed and unlocked the side door. When police asked who owned the motorcycle in the van, the plaintiff claims he said he had “received a phone call from the ad” from “Colin”, whose surname he could not remember. (According to Exhibit 4, the plaintiff said he did not know who owned it, and that he had been told to pick it up “by email” as “it won’t start”.)

6. A back-up vehicle containing Constable Johnson and Probationary Constable Taylor had by then arrived. The plaintiff and Mr Nedanovski were asked to leave the van, which was searched. The officers located a motorcycle in the back of the van leaning against a mattress but otherwise unsecured. Police contacted the owner of the van, who said the plaintiff had her permission to use it. Police also contacted the owner of the motorcycle who confirmed it was supposed to be parked “out front” (Exhibit 4) and had been taken without his permission. Searches confirmed that Mr Nedanovski was unknown to police but that the plaintiff was known to police, was unlicensed, and on a bond. Both the plaintiff and Mr Nedanovski were arrested, handcuffed and conveyed to Waverley Police Station where they were charged.

7. The handcuffing of the plaintiff, and not his arrest, is the subject of the plaintiff’s claim for damages. Between 11:45pm, the time recorded for his arrest, and until shortly after 11:55pm, which was the time when the plaintiff arrived at the police station, the plaintiff was in handcuffs. His handcuffs were removed shortly after he entered the police station.

8. The placement of the handcuffs is described in the statement of claim as follows:

“20. Constable BAILEY then took hold of the Plaintiff and cuffed the Plaintiff’s hands to the rear of his body with metal handcuffs.

21. The Plaintiff at that time felt discomfort in his upper arms, shoulders and wrists by the manner and position in which the handcuffs had been applied.

22. The action of Constable BAILEY was an unreasonable, unlawful and/or excessive use of force upon the Plaintiff to affect [sic] his arrest.”

The issues in these proceedings

9. The claim is limited to the following two issues:

1. Whether the application of handcuffs to the plaintiff by Constable Christian Bailey on 19 June 2013 was an unreasonable use of force and thereby constituted the tort of assault and battery on the plaintiff; and,

2. If the application of handcuffs to the plaintiff by Constable Christian Bailey on 19 June 2013 constituted the tort of assault and battery, what are the damages to be awarded to the plaintiff, in particular is the plaintiff in addition to general (compensatory) damages entitled to aggravated damages and / or in addition exemplary damages.

The damages claimed

10. Particulars of “injury, loss and damage” are set out in the statement of claim as follows:

“Assault and battery

29. As a result of the matters set out above in paragraphs 20, 21 and 22 the said acts constituted an assault and battery of the Plaintiff by reason of which the Plaintiff has suffered injury, loss and damage

PARTICULARS OF INJURIES, LOSS AND DAMAGE

29.1 Discomfort to both upper arms, shoulders and wrists

29.2 Emotional injuries including shock, anxiety, mental anguish and distress

29.3 Humiliation and embarrassment

29.4 Loss of self-esteem and dignity

29.5 Loss of trust towards Police officers

29.6 Loss of enjoyment of life

29.7 General damage.”

11. Aggravated compensatory damages and exemplary damages are also claimed.

The defendant’s application to withdraw an admission

12. At the commencement of the hearing the defendant brought an application to withdraw an admission that the plaintiff was handcuffed with his hands to the rear instead of in front of him.

13. Rule 12.6 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) provides:

“12.6 Withdrawal of matter in defence or subsequent pleading

(1) A party raising any matter in a defence or subsequent pleading may withdraw the matter at any time.

(2) Despite subrule (1), a party may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court.

(3) A withdrawal under this rule is to be made by filing a notice of withdrawal stating the extent of the withdrawal.

(4) If the withdrawal is by consent, the notice under subrule (3) must be accompanied by a notice from each party whose consent is required by subrule (2) to the effect that the party consents to the admission or other matter being withdrawn in accordance with the notice of withdrawal.”

14. The circumstances in which a party may withdraw an admission in pleadings are explained in Maile v Rafiq [2005] NSWCA 410 at [54]ff.

15. Counsel for the defendant told the court that in February 2015 the defendant realised an admission to the paragraph of the statement of claim referring to the handcuffing from the rear had been inadvertently made. However, the plaintiff was only informed of the application a week before the hearing. No explanation was provided as to why no notification was given prior to the day of the hearing: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [99]-[102].

16. The plaintiff submitted that the prejudice was considerable. The plaintiff’s co-accused, Mr Nedanovski, would be required to give evidence, in circumstances where, in the few short days before the defendant’s legal representatives had notified this proposed change, they had not been able to locate him.

17. The lateness of the application to withdraw the admission, the unsatisfactory explanation for the delay, and the prejudice to the plaintiff mean that leave to withdraw the admission should be refused: Silver v Dome Resources NL [2005] NSWSC 265.

18. I note, in relation to the issue of prejudice, that the defendant was instructed to withdraw the application in the event that I considered the only way that the prejudice could be rectified was by the adjournment of the hearing date. As the only basis upon which I would have been prepared to permit the defendant to withdraw the admission would have been on such a basis, my findings on this issue are only briefly noted.

19. I add, for completeness, however, that while Constable Bailey was cross-examined about the handcuffing of the plaintiff from the back, and his evidence that the plaintiff was handcuffed to the front was challenged, the only significance of this evidence was the plaintiff’s account of the additional discomfort he felt while travelling in the police van for the 5 minute trip to the police station in that his hands were behind him and instead of in front of him.

Other procedural issues

20. Both parties failed to comply with the “Notice to Practitioners” by the Judicial Registrar on 9 December 2014. This meant that neither party prepared a chronology, a list of issues or a schedule of damages at all, let alone serve these documents on each other and provide a copy to the court in the allotted period prior to the hearing.

21. The Judicial Registrar signed and dated a copy of this Notice and placed it in the file, a step taken after the Notice was handed to the parties. This Notice, created on 7 February 2014, is provided to all parties in proceedings which are being set down for hearing, and all parties in this court are expected to comply with them. Neither party did so, apparently in the belief that the Notice does not apply to intentional torts. That is not the case. I also note that neither party sought discovery, although such a step is frequently of benefit to both parties in litigation involving claims against police officers.

The evidence and documents in these proceedings

22. Determination of the issues in dispute requires credit evaluations of the evidence of the witnesses. Both counsel drew my attention to asserted inconsistencies in the evidence of the opposing party, submitting that (in the case of the plaintiff) the police evidence had been tailored and/or reconstructed, and (in the case of the defendant) that the plaintiff had told lies.

23. I first take into account that these events occurred nearly two years ago, and all of the witnesses had memory problems of varying degrees (see, for example, the plaintiff, T 61; Constable Bailey, T 139-140; Constable Martin, T 150-151). I note the NSW Court of Appeal’s direction to trial judges as to the value of evidence that is “fresh in the memory of the person who made the representation” (s 66 Evidence Act 1995 (NSW)) and eye witness events: R v XY (2010) 79 NSWLR 629 at [71] per Whealy J. The Court of Appeal in Chen v New South Wales [2014] NSWCA 41 at [15] has explained the fact finding obligations of a trial judge when determining whether issues such as the present, namely whether the police officers reasonably believed that the use of handcuffs was reasonably necessary.

24. I also take into account the differences in the roles of the respective parties. Counsel for the plaintiff submits that the plaintiff, unlike the police officers called to give evidence by the defendant, is not a “professional” witness. He is an ordinary member of the community and suffers from a condition of anxiety which makes inconsistencies in his evidence understandable. This is to be contrasted with the evidence of the police, which should be clearly scrutinised in relation to errors and inconsistencies, as police are trained to give evidence and are under strict obligations both to comply with the relevant provisions of the New South Wales Police Force Handbook (Exhibits B and C), as well as the obligation to give truthful evidence on oath.

25. However, I should also take into account the nature of police duties, which involves work at speed, snap decisions and considerable paperwork. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J noted that in such circumstances it would be “altogether unfair” to police officers to “make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances”. Additionally, although in the context of personal injury proceedings, the Court of Appeal has warned against the over-analysing of notations made by ambulance officers and other emergency services providers which may be written in haste, where the primary concern has been the resolution of the situation rather than the keep of an accurate note of it: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23].

26. Should the records kept by police officers be accorded the same leeway? While police who have failed to keep records in accordance with statutory obligations have been excused by the court in LVMH Watch & Jewellery Australia Pty Ltd v Lassanah [2011] NSWCA 370 at [127] – [128] (where the police noted only the names of the complainant and the persons accused of attempted store robbery), courts generally have a much higher expectation that police will keep accurate and comprehensive records of their activities than triage staff or ambulance officers, due to the statutory obligations under which police operate.

27. In considering the conduct of the police officers who investigated these activities, I must take into account both the statutory and common law regimes which require police officers to perform their duty. Counsel for the plaintiff draws my attention to the obligations of police officers to comply with, inter alia, the NSW Police Force Handbook (Exhibits A and B), ss 6 – 8 Police Act 1990 (NSW) and s 237 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). However, neither the changes in police organisational and operational activities nor the ever-increasing statutory obligations under which they perform these duties alter the fundamental character of the police officer’s obligations: Attorney-General for NSW v Perpetual Trustee Company Ltd (1954) 92 CLR 113 at 120 – 121; New South Wales v Tyszyk [2008] NSWCA 107 at [106] – [111].

28. The performance of that duty remains “to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury” and “there is no exhaustive definition of the powers and obligations of the police” (Johnson v Phillips [1975] 3 All E R 682 at 685). Police powers are not restricted to cases where actual violence or imminent flight are involved: Director of Public Prosecutions Ref. No. 1 of 1993; R v K (1993) 118 ALR 596 at 601. In DPP v Gribble [2004] NSWSC 926 at [24] – [25] Barr J noted Johnson v Phillips with approval, and also set out the following extract from the decision of Cosgrove J in Innes v Weate [1984] Tas R 14 at 21:

“There are two difficulties in this concept of duty. One is that it cannot be stated in other than general terms — the range of circumstances in which the duty to act may arise is too wide, too various, and too difficult to anticipate for the compilation of an exhaustive list. The other is that the existence and nature of the duty depends upon a reasonable assessment by the constable of any given situation. That assessment may be examined in the courts and held to be right or wrong … It is important that a constable should have a wide discretion to act swiftly and decisively; it is equally important that the exercise of that discretion should be subject to scrutiny and control …”

29. When determining issues of credit and making findings of fact, I must have regard to the following:

1. I should identify unchallenged evidence as to the circumstances leading up to the arrest and the application of the handcuffs, including the conduct of the person charged at the same time as the plaintiff, Mr Nedanovski.

2. I should take into account the contemporaneous documentation that is available, as well as the evidence in the Local Court proceedings.

3. Where there is conflicting evidence between witnesses in these proceedings, I should identify which evidence should be accepted, and set out my reasons for doing so.

4. If there is internal inconsistency or inherent implausibility in the evidence of the witnesses, I should identify that evidence and explain whether it is relevant to issues of credit.

The evidence of the plaintiff

30. The plaintiff, a 36 year old man who is currently self-employed, was working as a mobile phone technician, soldering circuit boards and performing minor repairs. He had another form of “employment or hobby” (T 13), namely repairing motorcycles. This included pickups if someone had an accident, general repairs and servicing (T 13). He had an advertisement on “Gumtree” and would receive requests to perform work by SMS, email or phone call, generally by phone call. His advertisement was not tendered (T 14). A couple of days before the incident in question, he told the court he “received a phone call from a gentleman named Colin” (T 14 line 24) who said:

"I have a motorcycle, it doesn't start, it's either an ignition problem or an electrical problem," and he said to me if I was able to repair it.  I go "well I can't repair it," I go, "it needs to be picked up, taken back and repaired" (T 14 line 36-39)

31. He told the court he replied, “That's fine, I can't do it at this present stage, I'm working at the moment”. Arrangements were made for him to go and pick up the motorcycle on Wednesday after work, and the plaintiff wrote down the details on a piece of paper (Exhibit A).

32. Having organised time with this gentleman, he rang a friend, Mr Robert Nedanovski, and asked him to do him “a favour”. This was because, at the time of the phone call being made, “I never had a licence, I was disqualified” (T 16). Mr Nedanovski said he was finishing work late and they would have to go after he finished work, which was approximately 10 to 10:30pm. Mr Nedanovski went to the plaintiff’s home in Lakemba, where “we grabbed the work van” (T 16) and drove to Ocean Street, Bondi, arriving at approximately 11:15pm. According to his evidence:

“Q.  When you arrived there what did you see?

A.  Outside the address we seen a partially uncovered motorcycle, black Honda CPR1000, and the cover was three quarters up and it had actual dirt debris, so there was an indication that this was sitting there for a fair while.

Q.  Was there anything about what you saw at that time relative to the conversation that you had with the person Colin?

A.  Yes, he gave me the address like every description that he gave me was 100%.

Q.  In your mind on seeing that bike what did you believe?

A.  I believed at the time that everything was legitimate, all his details, his particulars, every single description and everything that he gave me was correct.

Q.  What did you do?

A.  At that time once I seen everything there, Robert Nevanoski [sic] pulled forward, so he put the bicycle at the rear of the van, the actual ramp came out and we actually pushed the bike in inside the back of the vehicle, then the ramp was put back inside again, the actual backdoor was closed and we were standing outside for a good ten minutes having a general chat and having a cigarette.

Q.  Standing outside of what?

A.  Outside of the van, sorry, on the left hand side.

Q.  After that ten minute period what happened then?

A.  I jumped into the passenger side of the vehicle, Robert went to the driver's side, he started the actual van, and we drove off, we got to the end of Ocean Road, turned left, then turned left again into the first street, which was approximately about a minute later or two minutes later, and there was an actual vehicle behind us, then the blue and red lights went on, and then the actual siren went off and we pulled over.” (T 17)

33. The police officer who got out of the vehicle walked up to the driver’s side and asked Mr Nedanovski for his identification, saying this was a random breath test. According to the plaintiff, the conversation then was as follows:

“A. Robert pulled out his ID, gave it to the gentleman, and the gentleman said to him "What are you doing here?" and I answered as "We're here to pick up a job" and then he goes, "What do you do?".” (T 17-18)

34. The plaintiff replied “I do motorcycle recovery maintenance and general repairs” (T 18).

35. When asked what happened next, the plaintiff stated:

“A.  He went to the actual van, he came back, he grabbed my ID, and as we were slowing down it was bumpy and I handed him my ID and I said to him, you know with the utmost respect, I go “Officer I'm disqualified, I will show you my proof of age card.”  He turned around and goes “Ha ha,” that was the police officers actual words, he goes “So you were driving?” and I go, “I wasn't driving then and I'm not driving now”.” (T 18)

36. According to the plaintiff, when the police officer returned, the following occurred:

“A.  He came back to the vehicle and the police officer said, “Is there anyone else in the back vehicle?” and I go, “No, there's just me and actual Robert” and he goes, “Are you sure?”, I go, “Yes”.  He goes, “We seen [sic] the van move earlier before” and he goes, “Do you mind if I search the vehicle?”  I go, “Yes of course, you're more than welcome to,” and I reached back with my left arm and unlocked the door.” (T 18)

37. After the plaintiff unlocked the door the police officer opened it and said “What’s this?” The plaintiff replied, “This is a job that we had to pick up from Ocean Street or Road in Bondi” (T 19). The police officer asked, “Whose bike is this?” and the plaintiff replied, “I received a phone call from the ad and the person who spoke to me his name was Colin”.

38. When asked if there was other conversation at that time, the plaintiff said (T 19 line 16), “I can’t remember”.

39. The plaintiff did not have any particulars or information about Colin on his person. He did not have the piece of paper on which he had written the information that was tendered. He told the court that he did not have Colin’s particulars, but he “had them on somewhere else [sic]” (T 19 line 22).

40. All that the plaintiff could recall from the following events was that there was another officer in the police van behind, there was then another police vehicle which contained two police officers, one of which was a woman, the original police officer came back to the van and asked to search it, the police searched him and they were “just standing there” and “just waiting” (T 20 lines 16-17). The plaintiff did not resist or give any indication he was unwilling to comply with the police in relation to any part of the proceedings. He heard the police receive a telephone call but he could not remember hearing what was said by the police officer. After the telephone call, the police officer put the phone back in his pocket and said “Christopher, you're under arrest for possession of a stolen motorcycle” (T 21).

41. The plaintiff’s reaction was:

“I was shocked, like and then I just ‑ excuse my language, your Honour ‑ I said, "What the fuck?", I was, like, shocked that this was happening.” (T 21)

42. The plaintiff did not attempt to evade arrest and “stood in the same spot that whole time”, adding “I was just anxious, upset, just ‑ everything.  My mind was going crazy.  It was ‑ distressed.  I was taken aback” (T 21).

43. The plaintiff described what happened next as follows:

“Q.  What happened, for you to feel that way?

A.  The police officers turns around and goes, "I'm going to have to handcuff you".  I go, "That's understandable".  He grabbed my left arm, grabbed ‑ pulled his handcuffs out, twisted my arm behind my back and my palm was facing out.  He applied his handcuffs ‑ one of the handcuffs on to my left wrist, grabbed my other arm, twisted it behind me and placed the handcuffs on that one where my palms was facing out not in, like this, so it was outwards.” (T 21)

44. The plaintiff said he was suffering “mild discomfort” in that his shoulder and wrist were sore. He was then put in the back of the van where he remained for about 5 minutes before the van left to the police station. He thought that from the time the van was stopped until the time that he was handcuffed was about 20 to 30 minutes (T 22). He remained in the van for 3 to 5 minutes (T 22) and he thought the trip to the police station took between 5 to 8 minutes (T 23).

45. As a result of being in handcuffs, this trip to the police station, “raised the [anxiety] levels slightly higher, because I couldn't place my hands out, discomfort to my shoulders, as my hands were behind me, I couldn't lean to anywhere as they were taking the corners, bumps, whatever was there, speed humps.” (T 23).

46. When he arrived at the police station he felt “humiliated” and “sore”. He then described what happened at the police station as follows:

“Q.  What happened when you arrived at the police station?

A.  Once I arrived at the police station, the charging officer downstairs said to me, "Christopher, can you please walk into the actual cell" and was told to turn around for my handcuffs to be released.

Q.  When they were taken off you or released, how did you feel then?

A.  I had a big relief.  I was rolling my shoulders, rubbing my actual shoulder because I've had a previous injury, but, yeah.

Q.  Did you say anything to anybody about how you felt at that time after the handcuffs‑‑

A.  No, I was just relieved that I had them off.” (T 23)

47. The plaintiff said he was then in the cell for “a couple of hours” (T 23 line 49). He was then interviewed by police. He says he participated in a recorded interview and, just as he had answered their questions courteously and helpfully when stopped by police, he had done his best to answer their questions fully and frankly, including supplying the police officers with the details he had in his phone of the person who had asked him to collect the motorcycle.

48. The plaintiff, in both examination in chief and cross-examination, stated that at all times he had responded politely and frankly to police questions. Some indication of what he told Constables Martin and Bailey on the night in question can be obtained from his answers as recorded two hours later in the ERISP (Exhibit 2).

The plaintiff’s provision of information to police in the ERISP

49. The plaintiff told police that the motorcycle came to his possession because of his repair expertise; he was “given jobs to do” (question 47 of the ERISP) and he was “supposed to go on pickup this motorcycle”. He repaired those bikes at a house in Casula owned by a friend named Chris, although he was unable to recall the address beyond the suburb and general location (questions 51 to 56). For “minor stuff” such as a bike not being able to start (questions 58 to 59), he would “pick the bikes up” (question 58). He received a phone call stating that “the bike needed to be repaired” (question 59) by a man named “Colin”. He was asked:

“Q65. All right. Does Colin have a last name?

A. First time caller.

Q66. O.K. So, someone you don’t know called you on your mobile and said what?

A. That’s not the first time I’ve had that person call me.

Q67. O.K. You just said he was a first time caller?

A. Well, first time, mate, for him to do a job.

…

Q71. Gottcha. So, a person called Colin, you don’t know his last name?

A. No sir.

Q72. How do you know him otherwise, like?

A. Just of [sic] the phone.

Q73. O.K.

…

Q75. And his name is Colin and Colin says, Go somewhere and pick up a bike.

A. I was told that the motorcycle does not start and it has an ignition issue.

Q76. Yeah.

A. And the bike has been in that position for the last God-knows, he said to go to the same spot as always.

Q77. O.K.

A. The same spot as always.

Q78. Yeah.

A. He gave me the address.

Q79. Yeah.

A. And that was it. And I’ve gone in to pick up the bike.

Q80. [02:13:09] O.K. And how did you know you had the right bike, like when you pulled up there?

A. Because I was told ---

Q81. Yeah.

A. --- that it’s outside this… it was the actual brown roller door and the garage is separate to the actual building.

Q82. O.K. so you have directions by description. Did they give you a number to pull up at ‘cause it’s a pretty long street?

A. No.”

50. The plaintiff said he was unaware of police being behind his vehicle was he was on Ocean Street (question 85). He said he had gone back there where he had picked up the bike from (question 88) and when asked why (question 89) he replied:

“A. Something was telling me, Get the house number, get the actual number.

Q90. [02:14:30] O.K.

A. So that’s when we went back.

Q91. Yeah.

A. I, and then I go, Forget it, let’s go. I just cracked the shits and…

Q92. So you went back to get the number but changed your mind?

A. Yes.

Q93. O.K. So, Colin, only known as Colin, calls you on the phone, gives you a description of a building and you reckon you probably, we got, run into you at 11.00, you’d been there an hour before so 10 o’clock at night on Ocean Street, North Bondi, you managed to find a place simply because it had a detached garage from the main building and that’s how you knew you had the right bike.

A. He explained everything.

Q94. Yeah. He didn’t give you the Rego of the bike?

A. No, Nothing at all. He told me ---

Q95. Yeah.

A. --- it was a black Honda.

Q96. O.K. so a black Honda outside a garage detached from the building somewhere on Ocean Road, Bondi. Is that what you’re saying?

A. Yeah.”

51. The plaintiff was asked what he was instructed to do after he repaired it:

“Q99. Yeah but like repair it and deliver it or what?

A. Repair it and give him a phone call to, when it’s ready to pick up.”

52. The plaintiff had written down the number on a piece of paper.

53. The plaintiff went on to say he would have left the bike in the van overnight and would have worked on it either at the premises at Casula or at his own home (questions 112 to 114). When asked what tools he had he said he had “a little key set, a real small one and that’s it. A screwdriver set” (question 115). He told police officers he had not been doing mechanical work for the previous six to seven months (question 119), that he was not a qualified mechanic (question 120).

54. The plaintiff was aware that picking up motor cycles in this fashion was likely to look suspicious to police:

“Q125. O.K. All right. Chris, this is pretty irregular that a person you’ve never met, who has your number, tells you to go pick up a bike, do you see how that could go wrong?

A. Yeah. I’ve had it happen twice before.”

55. The plaintiff went on to explain that Mr Nedanovski was just a friend who was driving him there as a favour. He denied that the vehicle was rocking because he and Mr Nedanovski had changed seats (questions 138 to 140) but did not deny that the vehicle rocked. He said all that had happened was he had “turned around to see who was behind us” and that Mr Nedanovski turned around at the same time.

Was the plaintiff co-operative and compliant?

56. The plaintiff’s case is that he was an innocent agent to what he agrees was the “unlawful” (written submissions, paragraph 15) removal of the motorcycle. While he does not dispute that, in the “limited” circumstances known by the police, they had reasonable grounds to suspect he had committed a criminal offence, and were justified in arresting him, the use of handcuffs was an excessive use of force to effect and maintain the arrest, as for the 20 – 30 minutes he had been in the presence of police he had been entirely cooperative and compliant with all requests made of him.

57. The plaintiff certainly answered all the questions he was asked, permitted the van to be searched and stood by the roadside with Mr Nedanovski without attempting to flee the scene. Were the fullness and frankness of his answers sufficient to ally police concerns?

58. In his evidence, the plaintiff sought to demonstrate how helpful he was to police by stressing how he answered their questions as best he could. I do not accept this was sufficient, for three reasons. The first is that the information he gave to police was implausible and likely to raise suspicion. The second is that evidence he has given in this court contradicts many of those statements in material respects, which must cast doubt upon the plaintiff’s account of the conversation and events of the night in question. Some examples are as follows:

1. As is set out above, the plaintiff told police on the night of his arrest that he did not know the surname of Colin, and that he was not given an address at which he would find the motorcycle, only the name of the street. However, Colin’s surname and an address for the motorcycle appear on Exhibit A, which was tendered as corroboration of the information the plaintiff provided to police. The plaintiff’s explanation for not remembering this information or providing it to police on the night in question is not satisfactorily explained.

2. While he answered the police questions with apparent courtesy, his story to them was implausible from beginning to end, as well as being inconsistent with his evidence to this court. He admitted to police he did not have the registration number, or the motorcycle keys, for the motorcycle he was supposed to repair. Nor was his evidence in this court improved by the information in Exhibit A. According to Exhibit A, the only identification of the motorcycle he had was a “Black CBR”.

3. The plaintiff told the court there were ramps at the back of the van to allow the motorcycle to be rolled into the van. This is contrary to the evidence of Mr Nedanovski in the Local Court (Exhibit 1), who said that he and the plaintiff lifted the motorcycle into the van. Additionally, the motorcycle was not tied down, and it could have been damaged when the van turned around corners, which would hardly be professional conduct from a motorcycle mechanic.

4. Although the plaintiff claimed to be using the “utmost respect” to truthfully answer the police officers (T 86), he failed to contradict the lies told by Mr Nedanovski about being in the area to have a chicken burger.

5. Although the plaintiff tendered Exhibit A as proof of his bona fides, counsel for the defendant draws to my attention the failure to produce any Gumtree advertisements or other documents to prove his work as a repairer. The plaintiff claimed to have shown Constable Taylor a Gumtree advertisement on his mobile phone. The plaintiff’s claim that he advertised his mechanical abilities on Gumtree would be easily established by the tender of any advertisements (even recent ones), proof of payment or photographs of his workshop.

6. The plaintiff in cross-examination denied being nervous when the police pulled over the van, and the officers’ description of his as anxious (relevant to whether he was a flight risk) was challenged. Not only is this inconsistent with the observations of the police present on the scene, but it is inconsistent with the plaintiff’s opening remarks at the commencement of the ERISP.

59. Independently of the plaintiff’s answers, there were other reasons for police to have concerns when they first approached the van. As the police officers’ notebooks set out, they had been sufficiently alarmed by the van’s tinted windows and violent rocking after stopping for Constable Martin to call for back-up and, when they believed there were two more people in the van, to require that back-up urgently. The answers given by both men to the police were described by Constable Bailey as “odd” (T 96). For example, Mr Nedanovski initially claimed to be in the area to have a chicken burger, not to collect a vehicle for repair. The repair explanation story came after Constable Bailey pointed out that all the shops were shut. Both men’s explanation of the reasons for being double-parked in Ocean Street and leaving suddenly when police arrived were specifically pointed to by Constable Bailey as being of concern (T 96).

60. While Mr Nicholls submitted that only a bold person would tell a story of coming to collect a motorbike when it could so easily be checked, the plaintiff’s explanation for being in the area needs to be seen in context of the entirely different explanations proffered by the person driving the vehicle. The unsatisfactory answers of Mr Nedanovski made the plaintiff’s different explanation seem implausible.

61. The police evidence that the vehicle shook violently from side to side was not challenged. The plaintiff’s claim that the vehicle shook from side to side because he and Mr Nedanovski were looking over their shoulders to see the police is, I find, implausible. The plaintiff was challenged as to whether he had been driving and had changed seats quickly to avoid detection. As a whole, the plaintiff’s conduct at the scene was such as to invite suspicion that, notwithstanding his apparent cooperation, his answers were not merely implausible but untruthful, in that some form of illegal activity was taking place, and that it was up to the police officers to ascertain what that conduct was.

Conclusions concerning the plaintiff’s credibility

62. The implausibility of the plaintiff’s answers to the police officers on the night in question, particularly after the owner of the motorcycle provided information that the motorcycle had been taken without his permission, must rob the plaintiff of the value of his apparent compliance with police requests for information and to search the vehicle. Police concern for officer safety was clearly a significant factor at the commencement of their enquiries, given the circumstances in which there was a call for backup. Once that impression was created, police caution was understandable. They did not know what they were dealing with up until the time of arrest. While ultimately the relevant offence related to the transporting of a stolen motorcycle, prior to that time police did not know what to expect. The responses by the plaintiff to police, far from being helpful, were one of the reasons for police caution. I am also satisfied that the plaintiff said “we’re fucked” (being words of desperation potentially indicative of fleeing) on being told he was arrested, and that these words, if said (or even misheard) would additionally have alarmed the police as to potential flight or danger.

62. I am satisfied that the plaintiff is not a witness whose evidence should be accepted unless he is corroborated. This brings me to the question of the whereabouts of Mr Nedanovski, who did not give evidence in these proceedings.

The absence of Mr Nedanovski

64. Counsel for the defendant, in her written submissions, asks me to draw a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298) by reason of the failure of the plaintiff to call Mr Nedanovski (written submissions, paragraph 47). The plaintiff did not address this issue.

65. Mr Nedanovski gave evidence in the Local Court on 12 February 2014. The plaintiff’s statement of claim was filed on 30 July 2014 and these proceedings were given a hearing date on 9 December 2014, only ten months after the Local Court proceedings. According to the plaintiff, Mr Nedanovski was a good friend. He was on sufficiently good terms with the plaintiff to be permitted to drive the plaintiff’s former girlfriend’s motor vehicle. He told the Local Court that he had known the plaintiff for “10 plus years” (Exhibit 1, T 69). The plaintiff had repaired his car, his mother’s car and had his motorcycle serviced without charge (T 69-70). There is no evidence that he is ill, overseas, or unavailable.

66. Counsel for the plaintiff indicated, as one of his reasons for objection to withdrawal of the admission concerning the placement of handcuffs, that in the week before the hearing his client had been unable to locate Mr Nedanovski. However, that submission was based on the shortness of time in question, and did not go as far as saying that, given time, Mr Nedanovski might be located. Nor was there any information as to what steps to locate Mr Nedanovski had been taken.

67. I am satisfied that in the circumstances I should draw a Jones v Dunkel inference in relation to Mr Nedanovski.

The evidence of the police officers

68. Constables Martin and Bailey, the police who were present at the time of the arrest, were called to give evidence. Probationary Constable Taylor and Constable Douglas, who were at the police station, were also called.

Constable Martin

69. Constable Martin was the senior officer on the night. This meant he was “the primary decision maker, especially if there's a moment where you might disagree or be unsure, that's where the senior officer has to make the decision” (T 146).

70. Constable Martin was driving the caged truck along Ocean Street North when he saw a white van halfway between Bondi Road and Martins Avenue. It was double parked in the traffic lane, not in the parking lane (T 146) and it was stationary (T 147). Ocean Street is “one of our darker streets” (T 147) as the street poles are further apart, there are high rise buildings and there are a lot of trees on the street. As a result, it is one of the darker streets to move around on at night (T 147).

71. The left front passenger door of the van was open and Constable Martin saw it closed, “pulled in by an arm” (T 147). The van drove north on Ocean Street North, turned left on Martins Avenue and then left again on Penkivil Street. The police followed the vehicle while Constable Bailey ran a check on the registration of the vehicle, with the result that it was registered to a female owner in a suburb in the far western suburbs. The main observation that Constable Martin made, however, was that the windows were “extremely darkly tinted at the rear”. This was relevant because of risk factors:

“Q.  Did that play any role in determining any risks that may arise?

A.  Definitely.  We are always trained and I train officers to be wary of any vehicle they can't see into because they just don't know what's in there.” (T 148)

72. Constable Martin made a decision to pull the vehicle over and run a random breath test on it. Constable Bailey, the passenger, got out to do so in accordance with general practice. It was not general practice for the driver to get out when a random breath test was being involved unless there were multiple passengers (T 149). However, as Constable Bailey was getting out of the police vehicle with the alcohol breathalyser in his hand, Constable Martin observed the following:

“Q.  Upon the van stopping, can you tell the Court what was the next thing that occurred?

A.  Constable Bailey had the alcolizer in his hand and he started getting out of the car to conduct the breath test.  I was watching the van and it suddenly started rocking from side ‑ from left ‑ side to side.  And it was rocking ‑ it was an unusual way ‑ vehicles just don't suddenly do that.  It indicated significant movement in the vehicle and I couldn't see in the vehicle.  I was alarmed, I told Christian to stop and wait for me and I grabbed a torch and I went with him.

Q.  How long did the van rock from side to side for?

A.  I'd say about ten seconds.

Q.  In terms of the rocking, did that have any significance for you when assessing risk?

A.  Absolutely.  I didn't know how many people were in the vehicle which is an issue of risk.  I couldn't see into the vehicle, is an issue of risk.  But the possibilities when a vehicle is rocking, (1) is I've actually never seen another vehicle do that when I've pulled it over so I was really worried as to what they could be doing.  As per our training, suspicious movement inside a vehicle could mean preparing access to weapons or hiding something or preparing to do something that's at a risk to us, so I was wary of all of that.

Q.  In your experience could the rocking have been a result of the van being on uneven ground?

A.  No, because the vehicle was stationary, so the ground itself would have had to move to move the van.

Q.  Could the rocking from side to side be as a result of two people in the front of the van turning their heads to the side and behind to look at the police vehicle behind?

A.  No, no, it was rocking, it was violently moving.  It was, you know, it was shaking side to side.  Turning your head wouldn't move your car like that.” (T 149)

73. Constable Bailey approached the driver side and spoke to the driver. Constable Martin described this as follows:

“Q.  Did you take any action when Constable Bailey approached the driver's side?

A.  Yes, two things happened and it's been two years now I don't remember the sequence, but he spoke to someone in the van and he turned to me and said, "four heads on board".” (T 150)

74. This was an indication to Constable Martin that as well as the two persons whom he could see sitting in the van, there were another two persons who must be in the back. This meant that “they were in an area I couldn’t see into” (T 150 line 22) and as a result Constable Martin called for another vehicle to come and “back us up”. He was asked why this was necessary and he gave the following evidence:

“Q.  Why was that?

A.  Safety again.  Even if there were only heads on board it's not unwise to get another two officers there if you are not feeling comfortable.  But with four on board it made it simply easier to make that assessment.

Q.  What were the factors that led to you not feeling comfortable upon having stopped the vehicle and gotten out of the vehicle?

A.  Well it still goes ‑ it goes all the way back to the tinted windows and the suspicious rocking of the van.  They were ‑ those factors never went away.  And so I wasn't comfortable the whole time.” (T 150)

75. The backup police vehicle arrived shortly thereafter and Constable Martin went to speak to the passenger, Mr Makri (T 150-151). He asked Mr Makri to provide identification and he “provided a driver's licence that identified him” (T 151). A check was run and as a result of that check, he became aware that Mr Makri was a disqualified driver (T 151):

“Q.  Did any other warnings come up that you became aware of?

A.  Not at ‑ well, I was talking to Mr Makri and I think I didn't hear everything.  I think I focused on the disqualified driver.  There were other things said on the radio but I don't recall them.

Q.  Why was the disqualified driver of particular relevance to you?

A.  Well for me it would be one thing that would explain the sudden rocking of the van.  The driver and the passenger if they were to swap would have had to crawl over and around each other to swap seats.  It's not something people haven't done before, and that would've explained the rocking of the van.  I asked Mr Makri about that and he said that he hadn't, so.” (T 151)

76. Constable Martin did not recall being told by the plaintiff that he was a disqualified driver. While talking to him, he observed a motorcycle in the back of the van. Constable Martin was concerned there were other people in the vehicle:

“Q.  You've approached the car and to the best of your recollection what did you say and what did Mr Makri say?

A.  Well in some form I asked him for identification.  He provided it.  I was concerned there were other people in the vehicle.  I asked him, "Is the door locked", because I wanted to see inside the rear of the vehicle.  And I don't recall what he replied but I opened the sliding door and I saw that there was no people in the rear of the vehicle.

Q.  When you opened the sliding door, what did you observe?

A.  I saw a sports bike motorcycle and it was leaning over to the side on its right side on a mattress.

Q.  On observing that, did you have any conversation with Mr Makri or Mr Nevanoski about the bike?

A.  I asked Mr Makri who owned the bike and he said he didn't know.  I asked him, well, again I don't know the exact words but I wanted to know why the bike was there.  Apparently, according to Mr Makri, he repairs bikes.

Q.  Is that the words that he used?

A.  It was only the gist I got from it, I can't remember the words he used but he mentioned getting an email to pick the bike up.

Q.  You say getting an email, did he make reference to other modes of correspondence when receiving jobs to pick bikes up?

A.  Yeah, phone calls as well.

Q.  In terms of the particular bike in the back, did you have any discussions about what led him to having that bike in the back of his van?

A.  At the side of the road I don't remember his exact words.  Yeah, he had words that it was being picked up to be repaired because it wouldn't start.

Q.  At that point what occurred next?

A.  At that point I wasn't satisfied that they had a legitimate reason for having this motorcycle.  I asked them to get out of the vehicle ‑ so both persons to get out of the vehicle so that I could search it.

Q.  Did you in fact undertake a search of the vehicle?

A.  Yes, I opened the rear ‑ the rear door of the van lifts upward ‑ I lifted that up so I could see the ‑ well I could see the same motorcycle lying on the mattress.  And also get the registration of the bike.  I examined the front cabin of the van as well.  There were ‑ it was a bit of a mess but there were various tools, screwdrivers, pliers, socket style spanners, wires, cigarette boxes and various papers.

Q.  Did you find in the course of your search any tyres or ropes that could have been used to secure the bike?

A.  No.

Q.  When you observed the bike, was it in fact secured to anything?

A.  No, it was just lying on its right side onto the mattress.

Q.  Did you have a look to see whether or not there were any ramps in the van that would assist in loading the bike into the van?

A.  I didn't look for a ramp but I certainly didn't see anything.  There was a mattress and a bike.

Q.  Did you have a look under the mattress for any further equipment?

A.  I lifted the mattress ‑ if there was anything right up the front but I couldn't see, but I only lifted the mattress partially because there was a motorbike on it and I didn't want to move it, so I looked I would say under half the mattress ‑ the rear half of it.  There was nothing there.

Q.  You said that you obtained the rego number of the bike, what occurred next?

A.  I called, I think it was Waverley Police Station, but I called one of our two local stations, Bondi or Waverley, and asked them to make inquiries with the ‑ to try and identify the owner and get in touch with him.

Q.  Where were you standing when you made that phone call?

A.  On the footpath towards the rear of the van.

Q.  Is it the case that you ultimately received a reply to that inquiry?

A.  Yeah, Senior Constable Cook called and said she'd just gotten off the phone with the owner, he insisted he left it outside his property on Ocean Street north and that no‑one had permission to take it.” (T 153-154)

77. During this time, Constable Martin had the opportunity to observe Mr Makri and he described him as follows:

“A. Yeah, because everything I did when I was on the phone I stayed facing them. They both the gentlemen stood on the footpath, they generally spent the time looking at the ground, occasionally looking around. They were pretty silent. I don't recall them saying anything.” (T 154)

78. He made similar observations of Mr Nedanovski:

“Mr Nevanoski looked at the ground and looked around a lot.  In my ‑ I observed he didn't ‑ wouldn't look me in the eye.  I don't know if he looked other officers in the eye but he just made a lot of glances around.  It was suggested to me that he was worried or just uncomfortable.” (T 155)

79. Neither of them made eye contact with Constable Martin at any time, according to his evidence (T 155).

80. He then informed both the plaintiff and Mr Nedanovski that they were under arrest for theft of the motorcycle:

“Q.  What was the response?  Well what response, if any, did Mr Makri or alternatively Mr Nevanoski make when that information was conveyed to him?

A.  Mr Nevanoski said nothing and Mr Makri just said, "We're fucked".

Q.  Upon saying that, what actions did you personally take?

A.  I placed Mr Nevanoski in handcuffs and I issued him his caution.

Q.  What was the reason that Mr Nevanoski was placed in handcuffs at that time?

A.  Risk to officer safety.

Q.  What were the risks that you were alert to at that time that supported you using handcuffs?

A.  Okay, well we were standing on a dark street, they had just been informed‑‑

NICHOLLS: Just slow down, please.  Standing on a dark street.

HER HONOUR: Just informed.

Q.  Yes, what were they just informed?

A.  They'd just been informed they were under arrest for a motor vehicle theft.  So at this time they're facing what I would call a serious charge and according to my training and the training I give, this is the moment in which they have to either make their escape or submit.  It's a dangerous moment and handcuffs are an excellent way of mitigating the risk that that brings.” (T 155-156)

81. He was asked if he took into account the compliance of the plaintiff with police requests and he replied:

“Sorry, the compliancy is not part of the decision.  If they're noncompliant they are certainly more likely to be handcuffed.  But risk is multiple factors.  It's not just, "I'm arresting this person who's compliant.  If they're compliant they're no risk to me" that's not the case at all.  I have to take in the potential for what could happen.  If I fail to take in that potential and get assaulted, I could be killed, relieved of my firearm and other persons could be hurt.” (T 157)

82. He said that this was not a hypothetical risk but based on “both my training and my experience.  I've been bashed into hospital by a gentleman who didn't warn me he was going to attack me” (T 157).

83. He went on to explained at T 158:

“I've experienced violence before from persons who were previously compliant and that added to my assessment that handcuffs reduce the risk that person will become violent and if they do become violent it reduces how effective they are because they're in handcuffs.”

84. He repeated at T 159 that he was “uncomfortable in that I'd had to approach a vehicle with tinted windows in which something strange had happened in that vehicle.  And that was the rocking.”

85. There is no evidence that there being any conversation between Constable Martin and Constable Bailey about handcuffs being placed on both of the persons being arrested. Constable Martin was at the point of handcuffing Mr Nedanovski when he saw that Constable Bailey had already taken out his handcuffs to place them on the plaintiff. Counsel for the defendant described this (T 162), and I agree, as being independent decisions resulting in the same outcome.

The credit of Constable Martin

86. In his written submissions, counsel for the plaintiff has challenged the evidence of Constable Martin on the following bases:

1. Constable Martin accepts that at no stage had he told Constable Bailey to handcuff the plaintiff;

2. Constable Martin told the Local Court that he made no contemporaneous notes in relation to any conversations with the plaintiff. The copy of his notebook which is tendered and marked as Exhibit 4 (which is set out below) clearly shows that this is not correct. This must cast serious doubts upon all of his evidence;

3. Constable Martin acknowledged directives to record the exercise of a power, including handcuffing, including why it had been exercised (Exhibit B) and acknowledged that notwithstanding his earlier evidence that he trained police in handcuffing, he was unaware of this requirement at the time of making his notebook entry and this was why no such record was set out in it;

4. He was unable to recall if the plaintiff was handcuffed to the rear of his body by Constable Bailey.

5. Most importantly, he accepted that up until the very point in time of being told they were under arrest, there was no doubt both the plaintiff and Mr Nedanovski had been “completely and entirely compliant with police request [sic] whilst at that location” and that there was absolutely nothing the plaintiff had done up until that point of the plaintiff being arrested and handcuffed for him to believe that the plaintiff had the potential to kill, relieve him of his firearm and/or kill any other person (T 179).

87. I shall deal with each of these in turn

Absence of discussion about handcuffs

88. Constable Martin told the court that he observed Constable Bailey take out his handcuffs and, without comment, did the same. Both police officers indicated their reasons for concerns of safety, and the fact that they took this step without prior consultation is indicative of their shared concerns.

Failure to produce the notebook at the Local Court hearing

89. Counsel for the plaintiff did not point to any discrepancy between Constable Martin’s notebook and the events in question. The matter proceeded in the Local Court on the basis that Constable Martin recorded material straight onto the computer. The fact that this was not the case is not a reason to distrust the evidence of Constable Martin.

90. This is readily demonstrated by the contents of Constable Martin’s notebook (Exhibit 4), which records:

“2319 – Vehicle check

[details]

White van spotted o/s 17 Ocean St

Doors closed, van left from from double parked position upon our approached, quickly north and left on Martins Ave

Stopped for RBT o/s 56 Penkivil St

After van stopped, suddenly started rocking and bouncing, suggesting frantic movement inside

Noticed rear end side windows extremely dark / illegal tint. Unable to see into rear of vehicle.

BAILEY approached and spoke to the driver

I watched as Bailey breath-test driver, driver handed him a licence.

I gave radio our location, 2 heads on board, another car – please.

Bailey turned to me and said, “4 heads on board”.

I asked radio to speed up back up vehicle.

Concluded CNI on driver, NEDANOVSKI

No info of interest

ES15 Johnson/Taylor arrived to assist

Asked passenger for ID

Chris Makri, Photocard

Saw a motorbike and no seats in rear of vehicle

Asked driver if side door locked. A. Yes

Asked, unlock it so I can see passengers. A. Yes.

Opened side door saw a black motorcycle leaning against a mattress.

Asked passenger

Q. Is that your bike

A. No.

Q. Who owns it?

A. I don’t know, I just got the job to pick it up.

Q. How did you get told to pick it up?

A. The job comes in an email, we just come and deliver them.

Q. Why did you pick it up?

A. They said it won’t start. IPE Given to search

Conducted CNI on MAKRI

Intel for motorcycle theft.

Quantum

146. In the event that I have erred in my findings on liability, I set out some brief observations as to quantum.

General damages

147. The plaintiff seeks separate damages in relation to both the assault and battery in the sum of $10,000 to $20,000 (written submissions, paragraph 133). In the course of oral submissions, Mr Nicholls conceded there was no evidence before the court in relation to the assault claim, and accordingly any claim for damages for assault is not made out.

148. Counsel for the defendant submits that the circumstances of the case are at the lowest end of the scale of damages and could only attract nominal general compensatory damages. A table of comparable cases was provided.

149. The amounts in question ranged between $10,000 to $20,000 (the plaintiff’s submissions) and $1,000 to $3,000 (the defendant’s submissions).

150. The plaintiff suffered no physical injury of the kind referred to by Diplock LJ in Cassell & Co Ltd v Broome [1972] 2 WLR 645. He did not even suffer a bruise. He suffered at best mild discomfort which he relieved by rubbing his wrists. While the plaintiff gave evidence that he felt humiliated that handcuffs were applied and was uncomfortable sitting in the police van, I am satisfied that the real source of any discomfort and distress the plaintiff felt was in being arrested, detained and charged with the offence for which he was ultimately acquitted. Accordingly, I prefer the estimate given by the defendant and would award the sum of $3,000.

The rolled-up claim for aggravated and exemplary damages

151. The plaintiff claims exemplary and aggravated damages as follows:

“Exemplary and aggravated damages

30. As a result of the aforementioned conduct of the Defendant the Plaintiff further claims aggravated and exemplary damages for the injury, loss and damage suffered

PARTICULARS OF EXEMPLARY AND AGGRAVATED DAMAGE

The Defendant:

30.1 abused their position of power and authority as Police officers [sic].

30.2 demonstrated a contumelious disregard for the Plaintiff’s dignity and rights.

30.3 proceeded with deliberate disregard for the well-being of the Plaintiff.”

152. Mr Nicholls in written submissions referred me to State of New South Wales v Zreika at [60]-[63]. An award of aggravated damages is sought on the basis of Constable Bailey abusing his power and showing a “contumelious disregard for the plaintiff’s rights” (written submissions, paragraph 137). The award for exemplary damages was varied in the written and oral submissions to be claimed on the basis that he showed a “compounded contumelious disregard for the Plaintiff’s rights by giving evidence in these proceedings tailored and/or reconstructed to retrospectively justify his otherwise unreasonable conduct in handcuffing the Plaintiff”. It is submitted that this not only shows a complete disregard for the plaintiff’s rights, but would also bring it within an “exceptional case” warranting the need for a component of damages to punish and deter future conduct of this kind by police officers.

153. The defendant submits that the plaintiff has conflated the concepts of aggravated and exemplary damages. General and aggravated damages, the first two of the three heads under which damages are recoverable (Cassell & Co Ltd v Broome at 718 per Diplock LJ) are compensatory in nature and are recoverable for torts where damages of this kind are available. While the assessment of general damages involves putting a money value upon “physical hurt, as in assault” (Cassell & Co Ltd v Broome at 718), additional compensation for the injured feelings of a plaintiff where his sense of injury is “justifiably heightened by the manner in which or motive for which the defendant did it” (Cassell & Co Ltd v Broome at 718) may be awarded as aggravated compensatory damages. By contrast, awards of exemplary damages fulfil an entirely different purpose, such as to ensure that those officials of the State of New South Wales who are responsible for overseeing the police force ensure that officers are trained so that abuses do not happen: New South Wales v Ibbett (2006) 229 CLR 638 at [51] and [54], citing Adams v Kennedy (2000) 49 NSWLR 78 at 87. Exemplary damages are a form of punishment and are as such do not attract interest at all, unlikely aggravated damages: Mather v Smith [2014] QCA 65; Hallam v Ross (No 2) [2012] QSC 407 at [48]. A further difference between aggravated and exemplary damages is that exemplary damages may not be awarded until the quantum of general damages, including aggravated compensatory damages, is awarded: State of New South Wales v Zreika at [70]; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419.

154. The plaintiff relies upon McCarthy v State of New South Wales [2013] NSWDC 247, where a rolled up claim for aggravated and exemplary damages was made, pointing out that while leave to appeal was granted, that leave was limited to liability and no leave to appeal was granted in relation to the conflating of the aggravated and exemplary damages claim. The Court of Appeal’s decision, handed down after submissions were completed (State of New South Wales v McCarthy [2015] NSWCA 153), did indeed restrict leave to appeal to liability, and did not make any comment, critical or otherwise, about the way in which damages were calculated. However, this may have been by agreement with the parties, or by their oversight (an oversight of a different kind as to exemplary damages by the parties in Tilden v Gregg [2015] NSWCA 164 was noted by McColl JA at [66]).

155. The plaintiff’s failure to identify and plead with precision the particulars of aggravated and exemplary damages is further complicated by the generality and vagueness of the pleading that “police officers” “abused their position of power”.

Aggravated compensatory damages

156. There is no evidence of the police officers, including Constable Bailey, speaking harshly or rudely to the plaintiff, or using unnecessary force to put the handcuffs on, or ignoring any complaints (which the plaintiff concedes were not made in any event about the handcuffs).

157. The claim for aggravated compensatory damages has not been made out.

Exemplary damages

158. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno (1987) 164 CLR 1 at 12.

159. The police were in the course of arresting the plaintiff for an offence, in circumstances where they already had concerns for their safety. Counsel for the defendant drew to my attention the well-known principle that provocation may operate to prevent an award or reduce any amount which might otherwise be awarded (Lamb v Cotogno at 13), for the reasons explained by Salmon LJ in Lane v Holloway [1968] 1 QB 379 at 391:

“There is no doubt that if a plaintiff is saying: “This man has behaved absolutely disgracefully and I want exemplary damages because of his disgraceful conduct,” when the court is considering how disgraceful the conduct was or whether it was disgraceful at all, it is material to see what provoked it. This is relevant to the question of whether or not exemplary damages should be awarded, and, if so, how much.”

160. As is set out above, I do not accept the plaintiff’s submission that Constable Bailey tailored his evidence in the manner asserted by counsel for the plaintiff. I would not award exemplary damages on this head, even if it had been properly pleaded and particularised (which, despite counsel for the plaintiff’s reference to the style of pleading in McCarthy v New South Wales [2013] NSWDC 247; State of New South Wales v McCarthy [2015] NSWCA 153, I am satisfied is not the case.

161. For the same reason that I am satisfied that aggravated compensatory damages should not be awarded for the conduct of either of the police officers on the night that these events took place, I am satisfied that there is no requirement to award damages as a punishment, or to reflect “detestation” (Lamb v Cotogno at 8).

Costs

162. Costs should follow the event. I have granted liberty to apply if any application for indemnity costs is to be made by the defendant.

163. In the event that my findings as to liability have erred, but some or all of my findings as to damages are accepted, I also note my findings as to costs. In view of the comparatively small size of the damages sought by the plaintiff, I drew the parties’ attention to r 42.35 UCPR, which provides that a party obtaining damages of less than $40,000 must satisfy the court that the commencement and continuation of the proceedings in this court, and not the Local Court, was warranted.

164. Mr Nicholls submitted that this was too difficult a claim to bring in the Local Court, in that the issues were complex, the damages sought were outside the realm of those generally claimed and the time to be allocated was too long.

165. I do not accept these submissions. The Local Court hears evidence from police officers, and makes credit findings as to witnesses’ evidence, on a daily basis. The Local Court’s understanding of the background facts to such a claim would be considerable. Additionally, the very slight nature of the injury (namely hurt to feelings), the nature of the evidence and the ambit of damages were such that these proceedings should have been commenced as well as continued in the Local Court. Accordingly, if I had found for the plaintiff, I would not have awarded costs.

Orders

1. Judgment for the defendant.

2. Plaintiff pay defendant’s costs.

3. Liberty to apply in relation to costs.

4. Exhibits retained for 28 days.

**********

Decision last updated: 27 July 2015