McLaughlin v State of New South Wales

[2023] NSWDC 525

District Court

New South Wales

Medium Neutral Citation:

McLaughlin v State of New South Wales [2023] NSWDC 525

Hearing dates:

22, 23, 24, 25, 26 August 2022
25, 26, 27, 28 September 2023

Date of orders:

29 November 2023

Decision date:

29 November 2023

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the plaintiff against the defendant for $10,000.

(2)   Costs reserved.

Catchwords:

TORTS — trespass to the person — two claims of false imprisonment — whether plaintiff was lawfully arrested by police — whether overnight detention of plaintiff was lawful — whether police officer failed to ensure plaintiff was brought before a court as soon as practicable after bail was refused, pursuant to s 46 of the Bail Act 2013 (NSW)

TORTS — trespass to the person — assault and battery — whether use of force by police officers was reasonably necessary

DAMAGES — deprivation of liberty — general damages — aggravated damages — exemplary damages

Legislation Cited:

Bail Act 2013 (NSW), ss 16A, 43, 44, 46, 47, 48, 61

Civil Liability Act 2002 (NSW), s 52

Court Suppression and Non-Publication Orders Act 2010, ss 7, 10

Crimes Act 1900 (NSW), ss 37, 61

Crown Proceedings Act 1988 (NSW), s 5

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 202, 230, 231

Law Reform (Vicarious Liability) Act 1983 (NSW), s 8

Uniform Civil Procedure Rules 2005, r 33.8

Cases Cited:

Barr v Director of Public Prosecutions (NSW) [2018] NSWCA 47

Christie v Leachinsky [1947] AC 573

Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980

Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72

McIntosh v Webster (1980) 43 FLR 112

Ruddock v Taylor [2003] NSWCA 262

State of NSW v Abed [2014] NSWCA 419

Watson v Marshall [1972] HCA 27; (1972) 124 CLR 62

Woodley v Boyd [2001] NSWCA 35

Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118

Category:

Principal judgment

Parties:

Callum McLaughlin (Plaintiff)
State of New South Wales (Defendant

Representation:

Counsel:
D Campbell SC with S Boland (22/08/2022 to 26/08/2022), A Canceri with S Boland (25/09/2023 to 28/09/2023) (Plaintiff)
G Keesing (Defendant)

Solicitors:
Australian Criminal and Family Lawyers (Plaintiff)
Norton Rose Fulbright (Defendant)

File Number(s):

2021/77260

Publication restriction:

Non-Publication Orders made on 22 August 2022:

4 Pursuant to ss 7 and 10 of the Court Suppression and Non-Publication Orders Act 2010, an interim non-publication order is made in relation to the redacted version of the “Oleoresin Capsicum Spray Manual, Version 9.2” (“OC Spray Manual”) referred to in the email dated 22 August 2022 from the Crown Solicitor to the plaintiff’s solicitor and produced in response to a subpoena issued by the plaintiff to the Commissioner of Police.

5 Order 4 is to apply throughout the Commonwealth of Australia until further order, and on the grounds that:
(a) the order is necessary to protect the safety of a person; and/or
(b) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

6 Pursuant to r 33.8 of the Uniform Civil Procedure Rules 2005:
(a) access to the OC Spray Manual be granted to legal representatives only;
(b) each legal representative be permitted one copy of the OC Spray Manual each, to be returned to the legal representatives for the Commissioner at the conclusion of these proceedings; and
(c) the OC Spray Manual be made available to the plaintiff for viewing only in the presence of legal representatives.

7 Nothing in order 6 should be read as preventing the use of the OC Spray Manual during the proper conduct of these proceedings, including being relied on in evidence or shown to witnesses.

Non-Publication Orders made on 23 August 2022:

3 Pursuant to ss 7 and 10 of the Court Suppression and Non-Publication Orders Act 2010 an interim non-publication order is made in relation to the documents produced to the court this day 23 August 2022 in response to a subpoena issued by the plaintiff to the Commissioner of Police.

4 Order 3 is to apply throughout the Commonwealth of Australia until further order and on the grounds that:
(a) the order is necessary to protect the safety of a person; and/or
(b) it is otherwise necessary in the public interest for the order to be made and that the public interest significantly outweighs the public interest in open justice.

5 Pursuant to r 33.8 of the Uniform Civil Procedure Rules 2005:
(a) Access to those documents be granted to legal representatives only.
(b) Each legal representative be permitted one copy of those documents to be returned to the legal representatives for the Commissioner of Police at the conclusion of these proceedings.
(c) Those documents be made available to the plaintiff for viewing only in the presence of legal representatives.

6 Nothing in Order 5 should be read as preventing the use of those documents during the proper conduct of these proceedings, including being relied on in evidence or shown to the witnesses.

Judgment

Introduction

1. Shortly before 6.00am on Saturday 2 May 2020 police attended an address in Centennial Park. At 6.00am police entered an apartment. A female was found on the floor of the living room. The plaintiff Mr Callum McLaughlin was found on a bed in the apartment. Police removed him from the bed and handcuffed him. He was sprayed with capsicum spray. Mr McLaughlin was removed from the apartment and taken to the Surry Hills Police Station. Later in the morning an electronically recorded interview was conducted with Mr McLaughlin. Mr McLaughlin was charged with two offences of violence and at about 1.00pm was refused bail by a police officer. At about 5.15pm the plaintiff was transferred into the custody of Corrective Services NSW, which has cells next door to the Surry Hills Police Station. He remained in detention there overnight. At 10.35am on the next day Sunday 3 May 2020 a Court Attendance Notice was electronically registered with the court. The jurisdiction of the court to hear a bail application from Mr McLaughlin was thus enlivened. On the afternoon of 3 May 2020 the plaintiff was granted court-imposed bail.

The Amended Statement of Claim

2. By an Amended Statement of Claim filed on 1 September 2021 the State of NSW (the State) is sued pursuant to s 5 of the Crown Proceedings Act 1988 (NSW) and also pursuant to s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW), on the basis of being vicariously liable for the conduct of four nominated police officers involved in the events of 2 and 3 May 2020.

3. The allegations against the State made in the Amended Statement of Claim are:

1. Mr McLaughlin was falsely imprisoned while in the apartment.

2. There was non-compliance with the requirements of s 202 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).

3. There was a breach of s 99(3) of LEPRA.

4. There was a second false imprisonment which occurred as a result of the failure by the police to place Mr McLaughlin before a court on 2 May 2020.

5. The plaintiff was subject to assault and battery by the police.

4. Mr McLaughlin seeks compensatory damages, aggravated damages, exemplary damages, interest and costs.

Amended Defence to Amended Statement of Claim

5. The defence of the State to the claim brought by Mr McLaughlin is set out in the Amended Defence to Amended Statement of Claim filed on 23 August 2022. The State admits that proceedings may be brought against the Crown under the title of State of NSW. The State also admits that it is vicariously liable in respect of any tort committed by the police officers referred to in the Amended Statement of Claim.

6. The State says that:

1. Mr McLaughlin was lawfully arrested pursuant to s 99(1) of LEPRA.

2. After the plaintiff was refused bail at the Surry Hills Police Station, he was lawfully detained pursuant to s 46 of the Bail Act 2013 (NSW).

3. Police at all times acted lawfully pursuant to ss 230 and 231 of LEPRA.

4. Police deny that excessive force was used and further rely upon self-defence at common law and under s 52 of the Civil Liability Act 2002 (NSW) (the CL Act).

Evidence for the Plaintiff

7. Several of the police involved in events outside and inside the apartment at Centennial Park had body-worn cameras which took video and sound footage of the events. The quality of the video and the sound is less than ideal and I must keep that in mind in making factual findings based upon the footage. In Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72 Sackville AJA said at [42]:

“The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved.”

8. The plaintiff tendered the following video files and documentary evidence.

Video File (PX 4)

9. This video (7 minutes and 18 seconds) was taken outside on Cook Road commencing at 5.52am on 2 May 2020. It shows a man, later ascertained to be Mr Edmondson, on the footpath outside dwellings in Cook Road. He has a split and bleeding lower lip. Mr Edmondson is placed under arrest. He declines to give the police his name. He refuses to say what happened to him. His speech is slurred and he appears to be inebriated.

Video File (PX 9)

10. This video (21 minutes and 5 seconds) was taken outside on Cook Road and shows police dealing with Mr Edmondson. It is similar to PX 4 but taken from a different camera.

Video File (PX 6)

11. This video (20 minutes and 38 seconds) was taken in the lounge room of the residence at Cook Road commencing at 6.01:59am. Initially a taser is pointed at Ms Natalia Shovelton, the plaintiff’s girlfriend, who lies face down on the floor. Police officers then handcuff Ms Shovelton and roll her onto her side. She is sobbing and visibly upset. In part of the video taken in the lounge room, the plaintiff can be heard calling out in the bedroom. Ms Shovelton makes an allegation, to a female police officer in the lounge room, that she was hit in the face and on the body by the plaintiff. After a while police officers assist Ms Shovelton to stand, and she is escorted out of the apartment and onto the footpath in Cook Road. The handcuffs are removed by police while Ms Shovelton is standing on the footpath. She is examined by ambulance officers and then stands on the footpath speaking to police.

Video File (PX 8)

12. This video (57 seconds) appears to have been taken from the camera on a taser aimed at Ms Shovelton when she is on the floor of the lounge room. The sound quality is very poor and the video duplicates what is seen on the video PX 6.

Video File (PX 7)

13. This video (8 minutes and 3 seconds) is taken inside the bedroom of the apartment commencing at 6.03am. Initially there is no sound associated with the video. At 6.03:30am Officer Vial can be seen spraying capsicum spray into the eyes of the plaintiff. This video shows another angle inside the bedroom, similar to the main video in the case, which is PX 5. The plaintiff is eventually removed from the bedroom, taken through the apartment and out into the street. He is placed in the back of a police van.

Video File (PX 5)

14. This is the key video (11 minutes and 19 seconds) in the plaintiff’s case, as it shows the actions of Officer Vial both outside and inside the apartment. I will summarise it by reference to the time stamp (hour:minute:second) shown on the screen:

1. 06:00:06 Video commences outside the apartment. There is no sound at this point.

2. 06:00:23 Light on the body-worn camera is turned on. Officer Vial commences to knock on the door of the apartment. There is still no sound.

3. 06:00:34 Officer Vial leans towards the door and puts his left ear near the door, as if listening.

4. 06:00:42 Officer Vial commences kicking at the door. There is still no sound.

5. 06:00:50 After seven kicks the door swings open. There is still no sound on the video.

6. 06:00:53 Officer Vial and two other police officer draw their firearms and enter the apartment.

7. 06:00:58 The three police officers are in the living room of the apartment. Firearms are trained on a person on the floor, later ascertained to be Ms Shovelton.

8. 06:01:02 Officer Vial can be seen through a doorway off the living room in the bedroom of the apartment. The other two police officers are still in the living room with their firearms trained on Ms Shovelton. Sound commences on the video.

9. 06:01:05 Through the doorway Officer Vial can be seen to holster his firearm, and he speaks to someone who is out of sight (the plaintiff who is on the bed) saying “roll over”.

10. 06:01:10 The video is taken from inside the bedroom and shows Officer Vial dragging the plaintiff off the bed by his shirt towards the floor.

11. 06:01:14 Officer Vial places the plaintiff on the floor in the prone position with his face on the floor.

12. 06:01:18 Officer Vial pulls the plaintiff’s hands behind his back and commences to handcuff the plaintiff.

13. 06:01:39 Officer Vial, assisted by a second officer, has completed handcuffing the plaintiff. Officer Vial identifies himself by name and station and says “at this stage you are under arrest for an assault”. Officer Vial cautions the plaintiff.

14. 06:01:55 Officer Vial tells the plaintiff that he is going to stand him up and search him. The plaintiff is still prone on the floor with his hands handcuffed behind his back.

15. 06:02:06 Officer Vial and a second officer pull the plaintiff up by his arms to sit him up.

16. 06:02:21 The plaintiff is moved to a sitting position with his back and head resting against the wall of the bedroom, next to the doorway out to the lounge room.

17. 06:02:30 Officer Vial tells the plaintiff to stop moving around. Using his boot, he moves one of the plaintiff’s feet out of the way (described by counsel for the plaintiff as a “kick”).

18. 06:02:38 The plaintiff commences calling out “Natalia”. Officer Vial tells him to be quiet. Officer Vial puts on some gloves.

19. 06:02:58 Officer Vial drags the plaintiff by his right arm. The plaintiff keeps calling out “Natalia” and is moving around. Officer Vial tells him to stop moving.

20. 06:03:10 Officer Vial throws the plaintiff back on the floor quite forcibly. The plaintiff lands in a prone position.

21. 06:03:17 The plaintiff is lying on his back with his face towards Officer Vial. Officer Vial tells him not to look at him and to stop resisting.

22. 06:03:22 Officer Vial has his hand on the left side of the plaintiff’s neck forcing the plaintiff’s head to turn to the right, away from Officer Vial and parallel to the floor. The plaintiff is still on his back with his hands handcuffed behind him.

23. 06:03:25 The plaintiff is moving around. Officer Vial tells him to stop resisting. The second officer comes in beside Officer Vial to help him control the plaintiff.

24. 06:03:28 Officer Vial says to the second officer “I’m going to gas him”.

25. 06:03:37 The video shows the back and head of the two officers but the plaintiff cannot be seen. The plaintiff utters a guttural cry of pain.

26. 06:03:56 The two officers continue to struggle with the plaintiff. Officer Vial tells the plaintiff several times to stop resisting.

27. 06:04:20 Officer Vial tells the plaintiff to stop resisting. He tells him to calm down and that he is going to wipe his eyes.

28. 06:04:24 Officer Vial applies water to the plaintiff’s eyes.

29. 06:05:25 Officer Vial leaves the plaintiff in the control of the second officer. Officer Vial says “let’s get her out”.

30. 06:05:51 Officer Vial tells the plaintiff that they are going to stand him up.

31. 06:05:55 Officer Vial tells the plaintiff that if he keeps resisting he will be sprayed again.

32. 06:06:08 The plaintiff is pulled to his feet by his arms by the two police officers.

33. 06:06:28 The plaintiff is taken to the lounge room and seated on a lounge by the two police officers.

34. 06:06:43 Officer Vial pours water on the plaintiff’s face from a bottle of water.

35. 06:07:27 Officer Vial says to the plaintiff that if he starts tensing up he will be sprayed again.

36. 06:07:40 Officer Vial repeats his name and station, repeats that the plaintiff is under arrest for an assault and cautions him again.

37. 06:08:07 Officer Vial leaves the lounge room and walks outside the apartment.

38. 06:08:30 Officer Vial re-enters the lounge room and says “he’s coming back, he’s under an arrest for an assault on her”.

39. 06:08:40 The two officers walk the plaintiff out of the lounge room to the street.

40. 06:08:59 The front door of the apartment is closed by other police officers.

41. 06:09:17 The plaintiff is brought to the foot of the steps leading from the apartment.

42. 06:09:25 The police take the plaintiff to the rear doors of a police paddy wagon. He is searched. The plaintiff is placed into the rear of the wagon.

43. 06:10:28 Officer Vial says that he is taking the plaintiff’s shoes off. He tells him to stop spitting.

44. 06:11:00 The plaintiff is slid back into the police wagon and the door is shut. The plaintiff cries out inside the wagon.

Two video files taken at Surry Hills Police Station (PX 10 and PX 11)

15. PX 10 is a video taken in the charge room starting at 6.30:31am. The plaintiff can be seen behind glass doors.

16. PX 11 is a video taken in the cell in which the plaintiff was held from 11.54am onwards.

Oleoresin Capsicum Defence Spray Manual (PX 12)

17. This document was produced on subpoena by the Commissioner of Police. It is the manual for instruction of NSW Police Force personnel in relation to the use of capsicum spray (also referred to in the evidence as pepper spray or OC spray). As would be expected, it deals with the key features and effects of the spray, when and how to use the spray, operational considerations, and decontamination procedures. It is not necessary to quote from this manual, as there is no specific pleading that Officer Vial did not follow the training provided to him via the manual.

Field Arrest Report (PX 13)

18. This document was created at Surry Hills Police Station. It records the “Detention Reason” as “LEPRA 99(1)(b)(ix) Nature and seriousness of the offence”. It records that the arrest took place at 6.30am on 2 May 2020 and that the plaintiff arrived at Surry Hills Police Station at 7.00am on 2 May 2020.

19. Page 2 of the document deals with a “Brief Assessment” of the plaintiff. Under the heading “Aggressive Behaviour” appears the following:

“POI IS EXHIBITING AGGRESSIVE BEHAVIOUR TOWARDS POLICE. POI RESISTED ARREST AND WAS SPRAYED WITH OC AT THE SCENE. WHILE IN POLICE CUSTODY THE POI IS CONSTANTLY SMASHING HIS FOREHEAD AND LEGS ONTO THE DOCK DOOR. THIS HAS CAUSED PAIN AND REDNESS TO HIS FOREHEAD. POI IS VERBALLY AGGRESSIVE AND REFUSING TO CO-OPERATE WITH POLICE.”

20. The document refers to the plaintiff being cautioned at 8.03am by Officer Stanton, who was the custody officer at the Surry Hills Police Station.

Custody Management Record (PX 14)

21. This document refers to the detention of the plaintiff at Surry Hills Police Station. Officer Stanton made a visual assessment of the plaintiff, which he recorded on the second page. He completed the assessment at 8.03am.

22. The document records that Officer Stanton administered a caution at 8.03am but the plaintiff refused to sign a document. The document then records a number of 15-minute inspections of the plaintiff by Officer Clarke.

23. The document records the “Charge Process” to commence at 12.23pm and conclude at 1.04pm. Officer Glassock was the responsible officer in relation to charging the plaintiff.

21. Under the heading “Bail Eligibility Information” the document records that at 1.04pm Officer Glassock provided a copy of a Form 1 to the plaintiff.

22. Under the heading “Transfer” Officer Stanton recorded that at 5.04pm the plaintiff was transferred to the custody of Department of Corrective Services. He was said to be “Bail Refused”.

Form 31 (PX 15)

26. This document is entitled “Form 31 Summary of Part 9 of the Act for detained persons”. The Act referred to is LEPRA. The document records matters to be read out by Officer Stanton to the plaintiff. Officer Stanton signed the document at 11.10am to indicate that he had read the information to the plaintiff. He also recorded that the plaintiff refused to sign the document.

Court Attendance Notice and first page of Facts Sheet (PX 16)

27. The Court Attendance Notice (CAN) required the plaintiff to attend the Downing Centre Local Court on 17 July 2020. Officer Glassock was said to be the “OIC (Prosecutor)”. The document was “accepted” by Officer Stanton. The plaintiff was charged with two offences. The first was under s 37(1A) of the Crimes Act 1900 (NSW) being the offence of intentionally choking a person without consent. The second charge was under s 61 of the Crimes Act being the offence of common assault domestic violence related. The victim in both cases was said to be Ms Shovelton.

28. The plaintiff tendered only the first page of the Facts Sheet which was attached to the CAN. This simply listed the particulars of the plaintiff, the list of offences, the names of the arresting officers, the informant, and the accepting officer.

Provisional Apprehended Domestic Violence Order (PX 17)

29. This provisional order was made by Officer Stanton at Surry Hills Police Station at 11.37am on 2 May 2020. It ordered the plaintiff not to assault, threaten or contact Ms Shovelton. Officer Glassock was the applicant for the order. The duration of the order was two years.

Bail Risk Assessment Report (PX 18)

30. This is the bail determination made by Officer Stanton at 12.59pm on 2 May 2020. His determination was “Bail Refused”. Officer Stanton said that there were two unacceptable risks if the plaintiff was released from custody. They were the risk of committing a serious offence, and the risk of endangering the victim, an individual or the community. On the second page of the document Officer Stanton set out his reasons for his determination that the plaintiff should have bail refused.

Reasons for Bail Decision dated 2 May 2020 (PX 19)

31. This is a document created by Officer Stanton setting out his reasons. He notes that he decided to refuse bail. Officer Stanton sets out six considerations identified as relevant to the assessment of bail. They are:

1. The plaintiff’s background.

2. The nature and seriousness of the offence.

3. The strength of the prosecution case.

4. The plaintiff had no history of violence and no previous charges.

5. The likelihood of a custodial sentence being imposed.

6. The conduct of the accused person towards any victim. It was said that the victim was very concerned for her safety due to the behaviour of the plaintiff. The victim told police she thought she was going to die.

Reasons for Bail Decision undated (PX 20)

32. This is a document stating that bail has been determined at Surry Hills and that a decision was made to impose bail conditions. I am uncertain how this document fits into the chronology of the documents.

Screen Shots numbered 1, 2, 3 and 4 (PX 21)

33. These are screen shots from a COPS Enquire/History/Log/Entry. The first screen shot relates to an event at 10.35am on 3 May 2020 for “2 Offences Filed at Court”. The second screen shot relates to an event at 10.34am on 3 May 2020 described as “2 offences Transmitted to DJAG”. The third screen shot records a “Court Outcome” as “Non-Conviction/Not Prov” in relation to the offence of intentionally choke a person without consent. The fourth screen shot relates to a “Court Outcome” of “Non-Conviction/Not Prov” in relation to the charge of common assault.

Letter from Defendant’s Solicitor to Plaintiff’s Solicitor dated 8 July 2022 (PX 22)

34. This is a letter dated 8 July 2022 written by the solicitor for the defendant to the solicitor for the plaintiff. After dealing with matters concerning production on subpoena, the letter confirms that the plaintiff was denied bail on 2 May 2020. It encloses copies of the Risk Assessment Report dated 2 May 2020 and the Reason for Bail Decision “which stipulates that bail was refused and that the plaintiff was to attend the Local Court on 3 May 2022 [sic]”.

35. The letter also says:

“Further, with respect to the issue regarding the time of the submission of the CAN we note the following:

(1)   At the time we filed our Defence to the Amended Statement of Claim, we were instructed that the CAN is automatically filed upon completion.

(2)   As outlined in our letter dated 18 February 2022, following the filing of our Defence to the Amended Statement of Claim we subsequently received further instructions relating to the procedures for filing of the CAN, as outlined below:

a.   The CAN is not automatically electronically submitted upon completion. Rather, it is electronically registered with the court once it is printed. That is, the action of printing the CAN is what registers it with the court. In this case, the CAN was not printed at the time of completion on 2 May 2022 [sic]. Instead, it was printed by the prosecutor on 3 May 2020 at 10.35am.

b.   Relevantly, this administrative procedure has no bearing on when the plaintiff was brought before the court. Once the plaintiff’s bail was refused, Corrective Services were notified to collect the plaintiff. Corrective Services did not attend the Surry Hills Police Station to collect the plaintiff until after 5.00pm on 2 May 2022 [sic]. There was no court sitting at that time and he as appropriately before the court at the earliest opportunity being the following morning on 3 May 2022 [sic].”

36. Mr McLaughlin did not give evidence and no other person was called to give oral evidence in his case.

Evidence for the Defendant

37. The defendant tendered the following documentary evidence:

Audio recording VKG (DX 2)

CAD405512 (DX 4)

CAD405500 (DX 5)

Agreed transcript of VKG recording (DX 7)

38. These four documents relate to the radio call which resulted in Officer Vial and others attending the premises in Centennial Park. The agreed transcript of the radio call commences at 5.45am on 2 May 2020. It calls for cars to go to the address in Centennial Park and says “Got a report of a physical domestic happening outside”.

39. A police officer asks “You said there was a fight outside” and the response is “Yeah that’s correct, two males and one female”. Two beeps are then heard on the audio of the VKG recording, which indicates urgency. Later in the recording a police officer says that they are at the address having been flagged down by a member of the public, and the people involved in the altercation are residents in the building. Later police locate one male who was bleeding from the mouth. This is obviously Mr Edmondson. A police officer goes to speak to the informant. There is later radio communication regarding people being taken into custody, a female who is hyperventilating and a male requiring decontamination.

40. There are later entries in the transcript where the following is said:

“We are just trying to find out who the actual victim is.”

…

“The male does not appear to have any injuries but believe the female is complaining of an assault of some kind.”

Entire Video, part of which is PX 7 (DX 3)

41. The plaintiff tendered this video only up to 06:03:32. This is the point at which capsicum spray is administered by Officer Vial to the plaintiff. The defendant tendered the entire video. The entirety of the video has been summarised above. Officer Vial can be seen administering the capsicum spray to the eyes of the plaintiff, from short range, from 06:03:30 to 06:03:32. The sound on this video does not start until 06:04:09.

Pages 57-61 of Joint Chronological Bundle of Documents (DX 6)

42. These are the pages of the Police Facts Sheet not tendered by the plaintiff. They contain a narrative recitation of the police understanding of what occurred before their arrival. There is no indication in the document who provided which piece of information, and no evidence from which one could judge the accuracy of the narrative concerning events before the police arrived. Against that background, the “Facts Sheet” contains the following:

“On the early morning of 2 May 2020, both the accused and the victim were at their Centennial Park address in the company of their friend, Jamie Edmondson. The trio had been drinking together, all consuming alcohol since the previous night.

About 5.30am as all were situated in the living room area of the unit, a fight has broken out between the accused and Edmondson. The victim attempted to intervene at which point the accused pushed her to the ground.

As the victim lay on the ground, the accused stood over her and used his foot to press down on the throat of the victim. This caused the victim to start choking and gasping for air. The victim attempted to scream, however was unable to given the pressure from the choke.

Eventually the accused let go and the victim began screaming for help as she lay in the living room. The accused retreated to the bedroom and laid in his bed.

The above incident was heard by nearby residents, who contacted Police. An urgent Police radio message was broadcast and Police shortly attended.”

43. This evidence was subject to a limitation order – see separate Ruling made on 25 September 2023. The material in DX 6 was limited to evidence of what Officer Stanton would have looked at before he accepted the charge. This is explained below where I deal with the oral evidence of Officer Stanton.

Video ERISP dated 2 May 2020 (DX 8)

Transcript of the ERISP (DX 9)

44. Commencing at 11.19am on 2 May 2020 an electronically recorded interview (ERISP) was conducted by Officers Glassock and Al-Hazzah with Mr McLaughlin. During the interview police played a video statement made by Ms Shovelton (a DVEC) and asked Mr McLaughlin questions about what she said.

45. Counsel for the State submitted that this material was relevant on five issues:

1. The plaintiff’s case that he was unconscious when police entered the apartment.

2. The suggestion made by Mr Campbell SC that he was not calling the plaintiff as a witness because he could not remember anything.

3. Whether the plaintiff’s detention was lawful.

4. Whether the plaintiff would not have been detained at all.

5. The credit challenge made in relation to the evidence of Officer Vial that when he was outside the door, he could hear muffled screams.

46. The material was admitted without limitation, but subject to hearing submissions as to what should be drawn from the answers given to police by the plaintiff - see separate Ruling given on 27 September 2023.

Three Documents dated 9 April 2020 re Fines for Spitting on Police (DX 10)

47. These were documents issued by the NSW Government on 9 April 2020, advising that a $5,000 fine had been introduced for spitting or coughing on police officers during the COVID-19 pandemic. There had been some instances of this occurring and the government introduced the new fine “in response to the abhorrent acts of some individuals in recent weeks”.

Part of COPS Document (DX 11)

48. This document was created by Officer Glassock at 9.14 am on 2 May 2020.

49. The passages tendered are as follows:

“Meanwhile, other Police attended the unit of the victim. As Police stood outside the door, hear could screams coming from inside the unit. Police knocked at the door several time, however were unable to raise anyone.

Given Police were unable to access the unit, Police formed the opinion that an exigent circumstance existed. Entry was necessary as a person had suffered significant injury and/or there was a imminent danger of significant physical injury. Police forced entry in respect of section 9 of the Law Enforcement (Powers and Responsibilities) Act 2002.

Police activated their Body Worn Video and entered. Police located the victim laying down on the ground screaming and crying. Police located the accused laying in the bed, in the bedroom. Police arrested and handcuffed him to the rear before cautioning him.

Police proceeded to search the accused, at which point the accused started loudly collecting saliva in his mouth, indicating that he was about to spit at Police. Given their was violent confrontation likely to occur, Police administered an one second interval of Oleoresin Capsicum spray towards the face of the accused. This proved effective, and Police completed the search without further incident.”

50. The defendant called oral evidence from three witnesses.

Officer Stanton

51. Officer Stanton was the Custody Manager at Surry Hills Police Station on the day of the incident. He had performed that work hundreds of times. His role was the safety, well-being and security of all persons in custody. During his time as a Custody Manager, Officer Stanton had dealt with thousands of people in custody. Part of his duties included filling out a Custody Management Record for every person who was in custody. On the day of the incident, he had an assistant in dealing with people in custody. Minor matters were entered into the Custody Management Record by the Custody Assist, and more serious matters were entered by the Custody Manager. When Part 9 rights were read to a person, that was done by the Custody Manager. This is a reference to the reading of rights arising from Part 9 of LEPRA. The practice of Officer Stanton was to read these rights aloud to the person and ask them to sign a form to acknowledge that their rights had been read to them. If a person refused to sign, then this was noted on the record.

52. Officer Stanton had no recollection of Mr McLaughlin or of dealing with him. He did identify the Custody Management Record which he filled out in relation to Mr McLaughlin on 2 May 2020. Videos taken within Surry Hills Police Station, depicting Mr McLaughlin, were played to Officer Stanton. He identified Officer Clarke as the Custody Assist on duty on that day.

53. From documentation Officer Stanton identified Officer Glassock as the Officer in Charge of the matter of Mr McLaughlin. He had no memory of this but noted that it was recorded on the documentation.

54. On the Custody Management Record Officer Stanton identified, under a heading “Transfer”, that a time of 17:04 (ie 5.04pm) was recorded and that Mr McLaughlin was transferred to “Department of Corrective Services bail refused”. Officer Stanton indicated that this entry meant that at that time Mr McLaughlin was transferred from the custody of police at Surry Hills Police Station to the custody of “Surry Hills Correctives”, which was next door to Surry Hills Police Station. He described this as a “mass holding cell for the Central Met region that transport between the prisons” (Tcpt 256/16). He indicated that a person would be transferred from Surry Hills Police Station to Surry Hills Correctives if bail was refused.

55. Officer Stanton was asked about the usual practice where bail was refused and how it was that people in custody ended up with Corrective Services. He said:

“We are not a holding station, we don’t have capabilities, so they go to correctives to see the Magistrate.”

(Tcpt 257/15)

56. Officer Stanton said that he was not in a position to determine when a person who was bail refused would be transferred to Corrective Services. His usual practice as the Custody Manager was to be notified when Corrective Services was ready for someone to be transferred to them (Tcpt 258/41). Officer Stanton said that the time frame between notifying Corrective Services that someone was ready to be transferred, and Corrective Services accepting the transfer, was “within five minutes up to a day” (Tcpt 259/9). Officer Stanton said that people got from the police station to Corrective Services by police walking the prisoner down a corridor. Corrective Services did not come and collect the prisoner.

57. Officer Stanton identified the date and time of the bail determination as 12.59pm on 2 May 2020. This was when he determined to refuse bail (Tcpt 270/4). This was after conducting a risk assessment of the factors relevant to the grant or refusal of bail.

58. Officer Stanton gave evidence that he had no reason to delay someone being transferred into the custody of Corrective Services. He said that it was always preferable to transfer people as soon as possible, or give them bail, to get them out of custody. The fewer people he had in custody, the easier it was to maintain a safe charge room (Tcpt 273/19-27).

59. At that point in the evidence on 26 August 2022 the proceedings were adjourned as they had not finished within the five-day time estimate. It was difficult to obtain dates which were mutually convenient to counsel, although the court had available dates which were offered but were not accepted. The matter was adjourned for 13 months to suit the convenience of counsel. When it resumed, one of those counsel did not appear.

60. Cross-examination of Officer Stanton resumed on 25 September 2023. Counsel commenced by referring to s 43 of the Bail Act. In doing so, counsel who newly appeared for Mr McLaughlin indicated that there was no challenge to the bail decision (Tcpt 295/35). Officer Stanton confirmed that he refused bail. Officer Stanton also confirmed that he “accepted” the charges which had been laid by Officer Glassock. These charges were put before him, and he had to ultimately decide whether the charge would be accepted or not (Tcpt 297/15). Officer Stanton confirmed that he would send all of the paperwork, including the bail determination, to accompany the prisoner to Corrective Services.

61. Officer Stanton was asked whether he was aware of an obligation to send a copy of his decision in respect of bail to the court dealing with the question of bail. He said:

“I have never sent my decision of bail directly to a Court, or heard of anybody else doing it that way.”

(Tcpt 299/35)

62. Officer Stanton confirmed that his understanding of s 46 of the Bail Act was that he had an obligation to bring an accused person in his custody before a court or authorised justice as soon as practicable (Tcpt 303/22). Officer Stanton was asked whether, once he had refused bail, it was his practice to ensure that proceedings were commenced in the form of a CAN being filed with a court. Officer Stanton said that from his understanding he did not file anything with the court, he handed all the documentation to Corrective Services. As this was a weekend, Corrective Services would communicate by video link, presumably with the court. Officer Stanton confirmed that he did not file the CAN with the court, but that it was part of the paperwork given to Corrective Services (Tcpt 304/45). Officer Stanton was asked whether there was some legislation or a regulation that authorised him to do that, and he said that he did not know of one (Tcpt 305/10). He confirmed that he never notified a court that a person was in custody, and he left that to Corrective Services (Tcpt 305/50). He said that this was “so they were on video link from Corrective Services” (Tcpt 306/1).

63. I formed the opinion that Officer Stanton was a credible witness. He answered questions clearly and directly. While he had no memory of Mr McLaughlin or the events of the day (which is understandable as he was one of thousands of people dealt with in custody), Officer Stanton was clear about his documentation and about his practice in referring a person who had been bail refused to Corrective Services. I accept his evidence that he took no steps himself to put a person who was bail refused before a court, and that his usual practice was to send all of the paperwork, including any paperwork that might put a person before a court, with the prisoner who was transferred into the custody of Corrective Services. I also accept his evidence that while he notified Corrective Services when a prisoner could be collected, it was not until Corrective Services advised him that they would accept the transfer of a prisoner that police walked that person next door from Surry Hills Police Station, through a corridor, to the Surry Hills office of Corrective Services. From that office the person could appear by video link before a bail court on a weekend.

Officer Vial

64. Officer Vial gave evidence that he had been a police officer for seven years. He first heard about the incident at Centennial Park through police radio. He was at that time at Surry Hills Police Station and was about to finish his shift. He recalled that the broadcast conveyed that there was a “domestic incident occurring and it sounded a violent domestic incident occurring” (Tcpt 314/45). Officer Vial proceeded in a police vehicle with two other police officers, with lights and sirens activated. When he arrived at the premises he saw a male out the front and he recognised that man from an earlier interaction that night. He had blood on his face. Earlier in the evening Officer Vial had dealt with this man, and another man and a female in Oxford Street. He formed the view then that they were intoxicated.

65. Officer Vial then determined to enter an apartment. A resident above the apartment pointed downstairs and indicated which apartment the police should be concerned with. Officer Vial did not have a body-worn camera. This was because he was due to finish his night shift, and he had taken the body-worn camera off to upload it to the system. When the job came over the police radio, it was urgent, and he just ran out to the police vehicle.

66. Officer Vial was shown the video where he is standing outside the door of the apartment. He was asked about why he was leaning towards the door. He said “I could hear a female inside, screaming” (Tcpt 319/6). He gave the following evidence:

“Q. You've just said ‘screaming’. Can you tell his Honour or describe what you mean by that? What sort of sounds were they?

A. It was like a muffled - muffled scream. That's why I moved in close. It wasn't super obvious but it was, I could hear it, and I could hear it not very loudly, but I could hear someone inside saying ‘help’ or something. Something like that. It was - I don't remember the exact wording but it was something like that. I know it was a female voice screaming.

Q. We've also just seen you what looked like knocking on the door and saying something. Do you recall what you were saying as you were knocking on the door?

A. ‘Police, open the door.’ We say the same thing every time.”

67. Officer Vial was asked why he kicked the door in. He said:

“It was an emergency. In my mind I feared someone was being seriously assaulted or hurt within the unit and no-one would open the door for me.”

(Tcpt 319/30)

68. Officer Vial said that he drew his firearm for the protection of himself and others. Officer Vial was shown the video inside the apartment, where he can be seen in the bedroom where Mr McLaughlin was located. He saw Mr McLaughlin on the bed with his back up against the backboard. Officer Vial told Mr McLaughlin to put his hands up and he put his hands up. At that point he holstered his firearm. Officer Vial confirmed that he said to Mr McLaughlin that he should roll over. He then leant across the bed and said that he was “effecting the arrest of the male”. He was going to place him in handcuffs (Tcpt 320/40-50). Officer Vial said that when he put his hand over, Mr McLaughlin kicked out slightly by moving his foot towards him (Tcpt 321/5).

69. The attention of Officer Vial was drawn in cross-examination to the fact that on several occasions he said to Mr McLaughlin “you’re under arrest for an assault”. He said that he suspected Mr McLaughlin of assaulting “the female in the other room” (Tcpt 321/13).

70. In relation to contact between Officer Vial’s foot and the foot of Mr McLaughlin, he said that Mr McLaughlin was attempting to stand up, so he was just moving his foot so he didn’t stand up. He said that he did not want Mr McLaughlin to go into the other room where the female was located. He said that he thought that Mr McLaughlin was trying to go into the other room (Tcpt 321/22-42).

71. Officer Vial said that the plaintiff was calling out “Natalia, Natalia” and was wiggling towards the doorway towards the other room. Officer Vial said that when he can be heard on the video saying “stop pushing against me”, Mr McLaughlin was becoming quite agitated. By this stage he had been handcuffed, he was screaming out for Ms Shovelton, and he was becoming “more and more non-compliant”. Every movement that Mr McLaughlin made, felt to Officer Vial as though Mr McLaughlin was pulling against him. He put Mr McLaughlin on his side “so I was able to better control him”. Officer Vial said that Mr McLaughlin used physical force and made his way from his side to being on his back. When Officer Vial then said “don’t look at me, look away” he was saying that because he did not want Mr McLaughlin to spit at him (Tcpt 322/1-50).

72. Officer Vial said that he moved Mr McLaughlin’s face away with his hand by grabbing his jaw. He said he did not place his hands around the plaintiff’s neck (Tcpt 323/20-45).

73. Officer Vial was then asked about the part of the video where he kept saying to the plaintiff “stop resisting, stop resisting”. He said that while he was holding the plaintiff, Mr McLaughlin was moving his body against Officer Vial. Officer Vial then can be heard saying “I’m going to gas him”. Officer Vial said that the plaintiff was making a “hocking kind of sound”, as if he was gathering saliva in his mouth preparing to spit (Tcpt 324/18-34).

74. Officer Vial said that he used the capsicum spray “to control him” and that he did so because “he was very non-compliant” (Tcpt 324/45-50). He thought that the plaintiff might attempt to assault him, or spit on him, and “I needed to use a higher level of control to try and gain compliance” (Tcpt 325/1).

75. Officer Vial confirmed that he used a bottle of water from the bedside table and poured some water on the plaintiff’s eyes, to decontaminate him. He gave instructions that Ms Shovelton was to be taken outside, as he wanted to get the plaintiff outside but did not want him walking past Ms Shovelton in the lounge room. He said that he believed that there had been a domestic violence incident, and he did not want them to cross paths again and potentially aggravate the situation (Tcpt 326/12).

76. Officer Vial was taken to that part of the video where he said to another officer “he’s under an arrest for an assault on her”. The reference to “her” was a reference to the female who was in the lounge room inside the apartment (Tcpt 326/30).

77. Officer Vial said that he deployed the capsicum spray because he believed that a violent confrontation was likely to occur. He said:

“Q. Why did you believe that?

A. I was attempting to control the male. He was not complying with any of my directions I was giving him. And he was confrontational. He was resisting. He was resisting my actions.

Q. And you used the words earlier "violent confrontation". You just said then he was confrontational. Was it your view he was - there was a violent confrontation occurring?

A. Yes.

Q. Why did you think the confrontation was violent?

A. Due to his mannerisms. He was, you know, strong enough for me to be worried that it was hard for me to control him. Him turning directly over towards me to face me, me having to fear that he was going to spit on me. In my mind at that time, that was violent confrontation and that was when I needed to, in my mind, escalate where I had started from.”

(Tcpt 321/1-17)

78. In cross-examination Officer Vial was asked whether he was sure that he could hear muffled screams when he was listening at the door. His answer was “yes, that’s why I kicked the door in” (Tcpt 341/25).

79. Officer Vial said that when he got to the location Mr Edmondson was sitting on the brick wall. Mr Edmondson did not nominate himself as the person who had been assaulted.

80. Officer Vial was cross-examined about what he did when he first entered the bedroom. He said that the plaintiff was not doing much, he was just sitting there. When Mr McLaughlin put his hands up Officer Vial realised he had no weapons and that is when he holstered his firearm. When Officer Vial was dragging Mr McLaughlin off the bed, he agreed that Mr McLaughlin was “pretty limp” (Tcpt 347/35).

81. Officer Vial confirmed that when he went into the bedroom it was his intention to arrest Mr McLaughlin. It was put to him that he could have said words immediately to the effect of “you are under arrest”, but Officer Vial said that he didn’t think that was practical at the time, he wanted to secure the plaintiff and make sure everyone else was safe (Tcpt 350/25-45).

82. It was suggested to Officer Vial in cross-examination that when he had used his left hand to turn the plaintiff’s head away, his hand was on his neck. He denied that there was a gasping noise coming from the plaintiff at that point. He denied that the plaintiff was struggling for air. He said that he moved the plaintiff’s face to the side because Mr McLaughlin was gathering saliva to spit.

83. Officer Vial was cross-examined about the plaintiff saying “what are you doing” several times. He agreed that Mr McLaughlin seemed confused during the incident. Officer Vial acknowledged that when he arrested the plaintiff he had not spoken to Ms Shovelton. He confirmed that he did not say to the plaintiff that he was under arrest for assaulting Ms Shovelton. He simply said that he was under arrest for assault (Tcpt 372/34-373/3).

84. Officer Vial was asked in cross-examination what information he had as a basis for his belief that Mr McLaughlin had assaulted Ms Shovelton. His evidence was:

“Q. What information did you base your belief upon?

A. The screaming from inside; her being curled up in a ball, whimpering and crying, upon entry to the unit; and him being in the bedroom. Away from that, there being no other persons in the unit. That was a basis of my belief that an assault had occurred. She appeared, upon entering in to the room, that she had been assaulted due to her crying and whimpering, and him sitting on the bed.”

(Tcpt 373/9-15)

85. Officer Vial was questioned about words he said to other police officers being “is she our victim?” He said that in his mind Ms Shovelton was a victim and he was simply asking for that to be confirmed (Tcpt 375/5).

86. As to whether Officer Vial had a suspicion that Mr McLaughlin had assaulted Ms Shovelton, he gave the following evidence:

“Q. You didn't tell the plaintiff in the bedroom that he had assaulted Ms Shovelton, because at that time you didn't even suspect that he had assaulted Ms Shovelton?

A. That's incorrect. As I said, upon entry to the room, I saw her cowered on the floor. I built my suspicion that she had been assaulted. I passed past her to secure the rest of the room. I saw him seated on the bed. From in my mind at that time, when I walked past her, she appeared to be a victim to me. She was crying. She was curled up in a ball. She was clearly in distress, and he was sitting on the bed. In my mind, it was clear that she was a victim at that time, to me.”

(Tcpt 376/41-50)

87. Officer Vial denied that he had kicked at the plaintiff’s feet but said that he used his boot to move the plaintiff’s foot over because the plaintiff was trying to stand up (Tcpt 378/27-50).

88. Officer Vial acknowledged that he said “if he falls, he falls”. He said that he did not have any fears if the plaintiff fell from a sitting position, as he was on carpet and had no way to injure himself (Tcpt 379/40).

89. Officer Vial was asked whether the use of the OC spray was “completely unnecessary”. He said that he disagreed (Tcpt 389/50).

90. I formed a favourable impression of the credibility of Officer Vial. While questions were asked of him challenging his version of events, and his thought processes, there was no contradictory evidence, such as might have come from the plaintiff himself. Counsel for the plaintiff was effectively being asked to make bricks without straw. The Amended Statement of Claim pleaded that Mr McLaughlin was unconscious when police entered the apartment and remained unconscious when he was dragged off the bed and handcuffed while on the floor. Both this allegation, and the suggestion by senior counsel that the plaintiff was not being called because he would not remember anything, were palpable nonsense. The video evidence, the answers given in the ERISP, and the evidence of Officer Vial, prove otherwise. Counsel for the State submitted that the court should draw the conventional Jones v Dunkel inference from the failure to call the plaintiff as a witness. I do so.

91. Officer Vial handled the cross-examination well. He did not attempt to underplay his actions in any fashion. It has to be remembered that the interaction between Officer Vial and Mr McLaughlin in the apartment happened in circumstances which Officer Vial regarded as being urgent, threatening, and with the potential for further violence. Officer Vial had to make judgment calls on the spot as to the amount of force he used and as to the deployment of the OC spray. The evidence he gave orally was consistent with what I saw on the videos played to the court.

92. I accept all of the evidence of Officer Vial as credible. In particular, I accept his descriptions of the steps which he took in dealing with Mr McLaughlin and I accept his evidence as to his state of mind, his suspicion that Mr McLaughlin had assaulted Ms Shovelton, and his fears and concerns from time to time during the interaction with Mr McLaughlin. I accept his evidence that when he was outside the door and knocking on it, he heard muffled screams from within the apartment. The video shows him listening at the door before taking the step of kicking at the door to kick it open. This is consistent with Officer Vial hearing something from within the apartment which caused him to fear for the safety of a person within it.

Officer Glassock

93. Officer Glassock has been a serving police officer for six years. When he arrived outside the premises in Centennial Park, he saw a male “leaving the location at which point I’ve stopped and placed him under arrest” (Tcpt 445/30). This was Mr Edmondson. He had a split lip and he was quite intoxicated. Officer Glassock did not go to the apartment where Mr McLaughlin was located. He was never in that apartment.

94. Officer Glassock entered information into the COPS record, being a narrative of the events of the morning of 2 May 2020. He was the officer in charge of the matter. He got the information to put in that narrative from Officer Vial, who gave him a handover of what had occurred (Tcpt 447/10).

95. The evidence of Officer Glassock was uncontroversial and there was no cross-examination of him.

Submissions

96. The court received the following submissions:

1. Chronology prepared by the plaintiff (MFI 1).

2. Plaintiff’s written submissions (MFI 5).

3. Plaintiff’s oral submissions (Tcpt 490-515).

4. Defendant’s written submissions (MFI 6).

5. Defendant’s oral submissions (Tcpt 515-528).

6. Plaintiff’s oral submissions in reply (Tcpt 528-533).

First Alleged False Imprisonment

97. The plaintiff claims that he was falsely imprisoned for two discrete periods of time. The first commenced when he was dragged from the bed by Officer Vial and handcuffed and ceased after he was sprayed to the face with OC spray while still in handcuffs – par 39A of the Amended Statement of Claim (ASOC).

98. Counsel for the plaintiff submitted that the plaintiff only needed to prove the fact of imprisonment. It is then for the defendant to prove that the plaintiff’s imprisonment was lawfully justified: Ruddock v Taylor [2003] NSWCA 262 at [3].

99. The claim for the first false imprisonment is defended on the basis that the imprisonment was lawfully justified by Officer Vial lawfully arresting the plaintiff under s 99(1) of LEPRA – par 14A of the Amended Defence.

100. Section 99(1) of LEPRA provides as follows:

“(1) A police officer may, without a warrant, arrest a person if—

(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—

(i) to stop the person committing or repeating the offence or committing another offence,

(ii) to stop the person fleeing from a police officer or from the location of the offence,

(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv) to ensure that the person appears before a court in relation to the offence,

(v) to obtain property in the possession of the person that is connected with the offence,

(vi) to preserve evidence of the offence or prevent the fabrication of evidence,

(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii) to protect the safety or welfare of any person (including the person arrested),

(ix) because of the nature and seriousness of the offence.”

101. In the Amended Defence, the State alleges that Officer Vial suspected on reasonable grounds that the plaintiff had committed an offence, namely the common assault of Ms Shovelton and “possibly” an assault on Mr Edmondson. Officer Vial gave no evidence of any suspicion of an assault upon Mr Edmondson. Nor did anything which Mr Edmondson said outside the premises convey to any police officer that he had been assaulted by anyone. I will therefore focus upon the allegation that Officer Vial held the suspicion on reasonable grounds that Mr McLaughlin had committed common assault upon Ms Shovelton.

102. The Amended Defence pleads that Officer Vial was satisfied that the arrest was reasonably necessary:

1. Because of the nature and seriousness of the offence: s 99(1)(b)(ix).

2. To stop the plaintiff committing and repeating the offence or committing another offence: s 99(1)(b)(i).

103. In written submissions, counsel for the plaintiff identified six issues which fell for determination in relation to the first alleged false imprisonment.

The First Issue

104. Counsel submitted that the first issue was the question of when did the plaintiff’s imprisonment commence. The submission was that the imprisonment of the plaintiff commenced when Officer Vial took hold of the plaintiff while he was on the bed and pulled him onto the floor. From this point on it was said that his liberty was totally restrained. I accept this submission. It is from this point on that the imprisonment must be lawfully justified.

The Second Issue

105. Counsel submitted that the second issue to be determined was whether the failure of Officer Vial to communicate to the plaintiff that he was being arrested, or why he was being arrested, at any time until after the plaintiff was handcuffed, was unlawful.

106. Counsel submitted that the video footage showed that the plaintiff was never told that he was under arrest, or why he was under arrest, until he was on the floor and handcuffed. This was a period of more than 50 seconds. The video shows, and I accept, that the plaintiff’s body was limp during this time and that he was not offering any resistance. Counsel submitted that there was nothing to prevent Officer Vial complying with his obligation pursuant to s 202(1)(c) of LEPRA to explain that the plaintiff was under arrest. It was submitted that the failure to have done so rendered the detention during this passage of time unlawful. So far as it is relevant, s 202 of LEPRA provides as follows:

“(1) A police officer who exercises a power to which this Part applies must provide the following to the person subject to the exercise of the power—

(a) evidence that the police officer is a police officer (unless the police officer is in uniform),

(b) the name of the police officer and his or her place of duty,

(c) the reason for the exercise of the power.

(2) A police officer must comply with this section—

(a) as soon as it is reasonably practicable to do so, or

(b) in the case of a direction, requirement or request to a single person—before giving or making the direction, requirement or request.”

107. On video it is quite clear that Officer Vial is in uniform and announces his name and his place of duty. It is correct to say that he did not announce the reason for the exercise of the power of arrest until the plaintiff was handcuffed on the floor.

108. Officer Vial gave evidence as to when it was reasonably practicable, in his mind, to state the reason for the exercise of the power of arrest. He said that when police entered the apartment, they had no idea whether they would faced with danger, and his objective was to arrest the plaintiff as soon as he entered the bedroom. He said that he did not immediately announce the arrest to the plaintiff until he had secured the plaintiff on the floor in handcuffs, both for his own protection and the protection of other persons within the apartment, including the victim.

109. I find that Officer Vial gave Mr McLaughlin the reason for the exercise of the power of arrest as soon as it was reasonably practicable to do so, as was his obligation under s 202 of LEPRA.

The Third Issue

110. Counsel submitted that the failure of Officer Vial to provide information to the plaintiff about the details of the offence meant that the arrest was unlawful. Counsel pointed out that the language used by Officer Vial was to inform Mr McLaughlin that he was under an arrest for an assault, but that Officer Vial did not nominate the alleged victim of the assault. Counsel submitted that it is a fundamental requirement that a person be informed of the “true reason” for their arrest which involves being informed of the facts which are said to constitute the crime for which they are arrested: Christie v Leachinsky [1947] AC 573. Counsel also made reference to State of NSW v Abed [2014] NSWCA 419. In that case Gleeson JA said:

“91   First, it is not necessary for the arrested person to be told the precise charge at the time of the arrest. Rather, the arrested person must be told why they are being arrested in terms that disclose why the person's liberty has been restrained. This requirement is sometimes described in terms that the arrested person be told the ‘true reason’ for the arrest, or the ‘substance of the reason’ for the arrest.

92   Secondly, what is required will depend on the particular circumstances and will range from not needing to be told anything to being told both the facts which have given the police officer cause for suspicion that an offence has been committed, as well as what that suspected offence is: Johnstone v State of New South Wales at [56]. As this Court said in Hamod at [425]:

‘The law does not require that the arrested person be given detailed particulars of why he or she is arrested. How much detail is required depends upon the circumstances of the particular case.’”

111. I find that Officer Vial said enough to Mr McLaughlin to discharge his obligation to provide a reason for the exercise of a power of arrest. The words said by Officer Vial did not exist in a vacuum. They occurred inside an apartment, where a woman was in the next room lying on the floor sobbing and distraught. There had been a radio call indicating that there was a violent domestic incident, and Officer Vial had learned nothing outside the apartment to indicate that Mr Edmondson was the victim of an assault.

112. It would not be enough for a police officer to simply say “you are under arrest”, as that is simply a statement that the power of arrest is being exercised, rather than a reason for the exercise of the power. However, to say to a person “you are under arrest for an assault” is to tell that person why they are being arrested. They are being told the true reason or the substance of the reason for the arrest. The law does not require them to be given details of the particulars of the alleged offence.

113. In this regard, the actions of a police officer in effecting an arrest have to take account of the heat of the moment. In Woodley v Boyd [2001] NSWCA 35 at [37] Heydon JA said:

“In evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight.”

114. In McIntosh v Webster (1980) 43 FLR 112 at 123 Justice Connor said it is:

“… altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the court room and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.”

115. I have accepted the evidence of Officer Vial that he saw the most urgent task as securing Mr McLaughlin in handcuffs, so that there could not be any more violence, as Officer Vial had suspected had occurred. I accept the evidence of Officer Vial that he entered the bedroom with the intention of arresting Mr McLaughlin, but to say that he should have uttered words about the reason for the arrest straight away, rather than effecting the arrest and securing the suspect, is to engage in “minute respective criticisms” rather than having proper regard to the “pressure of events and the agony of the moment”.

The Fourth Issue

116. The fourth issue submitted for Mr McLaughlin was whether Officer Vial formed a suspicion that the plaintiff had assaulted Ms Shovelton. I have extracted above the evidence in the transcript given by Officer Vial which led him to form a suspicion of an assault upon Ms Shovelton.

117. I find that Officer Vial did form a suspicion and did hold a suspicion that Mr McLaughlin had assaulted Ms Shovelton. Ms Shovelton presented as the victim of an assault as soon as police came through the door, and the only other person in the apartment was the uninjured Mr McLaughlin.

The Fifth Issue

118. Counsel submitted that if Officer Vial formed a suspicion, was that suspicion based on reasonable grounds? For the reasons set out above, I find that the suspicion of an assault upon Ms Shovelton was based on reasonable grounds. It must be stressed that the police officer does not have to “know” that Ms Shovelton has been assaulted. He simply has to have a reasonable suspicion that she was assaulted. For the reasons set out in the evidence of Officer Vial, which I have accepted, I find that Officer Vial formed a suspicion based on reasonable grounds.

The Sixth Issue

119. Counsel submitted that if Officer Vial did hold a reasonable suspicion, was he satisfied that the arrest was reasonably necessary because of the seriousness of the offence and/or to stop the continuation or repetition of the offence?

120. I have accepted the evidence of Officer Vial to the effect that he observed Mr McLaughlin trying to get to his feet and trying to wiggle towards the room adjacent to the bedroom, where Ms Shovelton lay in a distressed state. Mr McLaughlin was calling out to Ms Shovelton. Mr McLaughlin was not compliant with directions not to move, and in particular, not to try to get to his feet. I find that the arrest was reasonably necessary to stop the continuation or repetition of an offence of domestic violence. Given the reasonable suspicion of Officer Vial that Ms Shovelton had been assaulted by Mr McLaughlin, he held the suspicion that a serious offence had been committed. I also find that the arrest was reasonably necessary because of the seriousness of the offence.

Conclusion in Relation to First Imprisonment Claim

121. The plaintiff fails on each of the six issues dealt with above. My ultimate conclusion in relation to the alleged first false imprisonment is that the arrest in the bedroom was lawful. Thus, this aspect of the claim brought by Mr McLaughlin fails.

Claim for Assault and Battery

122. Counsel for the plaintiff submitted that even if the plaintiff was lawfully arrested by Officer Vial, the question arises as to whether the use of force by Officer Vial and the other police officers constituted a use of force which was reasonably necessary. Reference was made to s 230 of LEPRA which provides as follows:

“Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.”

123. In the recent decision of Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980, Justice Ierace said that the test for whether the use of force was reasonably necessary was “whether a reasonable person in the position of the police officer would not consider the use of force by the police officer to be disproportionate to the risk or danger sought to be prevented”.

124. Counsel for the plaintiff submitted that initially Mr McLaughlin offered no resistance to Officer Vial, and he was not in a violent or agitated state when Officer Vial first grabbed him and pulled him onto the floor. It was submitted that pulling him onto the floor was completely unnecessary; placing handcuffs on the plaintiff was unnecessary; forcing the plaintiff’s head to the side was unnecessary; and the use of OC spray was unnecessary.

125. I have accepted the evidence of Officer Vial that the plaintiff was resisting him, and that the plaintiff’s resistance was becoming more forceful as time went on. I have also accepted the evidence of Officer Vial that he perceived that the plaintiff was trying to prepare to spit at him. It is concerning that the OC spray was deployed so close to the plaintiff’s face, causing him considerable pain. However, I have accepted the evidence of Officer Vial that the situation was escalating, and that he formed the view, in the agony of the moment, that it was necessary to use the OC spray to control Mr McLaughlin.

126. It is noted that almost straight away after using the spray, Officer Vial started to decontaminate Mr McLaughlin by sluicing water over his face, both in the bedroom and later in the lounge room. It cannot be thought that Officer Vial was somehow using the OC spray to punish Mr McLaughlin, or out of anger towards him. It appears to have been a calculated decision to use the spray, based upon grounds which appeared at the time to Officer Vial to be both reasonable and necessary.

127. I find that there was no breach of s 230 of LEPRA, and that the force used was reasonably necessary in order to effect the arrest of Mr McLaughlin and to control him in the circumstances.

128. The claim for assault and battery therefore fails.

Second Alleged False Imprisonment

129. The claim in relation to a second period of false imprisonment runs from 12.59pm on 2 May 2020, when bail was refused by Officer Stanton, and ends when the CAN was registered with the court at 10.35am on 3 May 2020. There is a bail court which sits at Parramatta over the weekend. It keeps usual court hours. Bail applications can be made to the magistrate sitting at that court. Both the court and Corrective Services have AVL facilities, and many applications are made by AVL. There is no evidence in this case as to whether the bail application was made in that fashion, or whether there was a lawyer appearing for Mr McLaughlin, when he successfully obtained bail.

130. The allegation of Mr McLaughlin is that after bail was refused by Officer Stanton, the police were under a duty to bring him before a court as soon as practicable to be dealt with according to law. The plaintiff relies upon s 46(1) of the Bail Act which provides as follows:

“A police officer must ensure any accused person charged with an offence who is refused bail by a police officer with power to grant bail, or is not released on bail granted by a police officer, is brought before a court or authorised justice as soon as practicable to be dealt with according to law.”

131. Surprisingly, there seems to be no decision from a higher court in relation to the meaning and application of s 46. No decision was cited by counsel and I have found none by my own research. There are the obiter dicta remarks of Leeming JA in Barr v Director of Public Prosecutions (NSW) [2018] NSWCA 47, where his Honour said at [82]:

“A basic principle of the Australian legal system is that a person’s liberty should not be curtailed without proper process.”

132. In considering s 16A of the Bail Act, Leeming JA said at [85]:

“That simple (and probably unrealistic) example avoids the difficulty inherent in the word ‘justified’ in s 16A. That word is conspicuously open-textured. Some content may be given by considering how it will be applied. The legislation proceeds on the basis that the power is to be exercised by a ‘bail authority’, being a police officer (who will ordinarily hold rank of sergeant or higher), an authorised justice or a court. If the bail authority is a police officer, and bail is refused, then the accused person is to be brought before a court or authorised justice as soon as practicable to be dealt with according to law: s 46(1). It follows that it may be assumed that all bail authorities will be persons familiar with the basic principles of the Australian legal system, and that save for a very limited time after the refusal of bail by a police officer, the determination will be that of a court.”

133. Part 5 of the Bail Act deals with “powers to make and vary bail decisions”. Division 1 of Part 5 deals with “powers of police officers”.

134. Section 43 of the Bail Act provides that certain police officers can make a bail decision. Section 44 of the Bail Act provides that a police officer must ensure that, as soon as reasonably practicable after a person in police custody is charged with an offence, a bail decision is made for the offence by a police officer with power to do so.

135. The terms of s 46(1) are set out above.

136. Section 47 of the Bail Act provides that a senior police officer may carry out a review of a bail decision made by a police officer. However, s 47(5) provides that a review is not to be carried out if to do so would cause a delay in bringing the accused person before a court. Thus, a review cannot be conducted where to do so would interfere with the obligation under s 46(1) to bring a person who is bail refused before a court, “as soon as practicable to be dealt with according to law”.

137. Division 2 of Part 5 of the Bail Act deals with the power of courts in relation to bail applications. Section 48 provides that a court may make or vary a bail decision, but only if the court has power to hear the application. A court has power to hear a bail application in the circumstances specified in Part 6 of the Bail Act. Section 61 appears in Part 6 of the Bail Act. It provides that a court may hear a bail application “if proceedings for the offence are pending in the court”.

138. It is clear from PX 22, discussed above, that proceedings were not pending before any court prior to the CAN being printed, and thus electronically registered with the court, which occurred at 10.35am on 3 May 2020.

139. Counsel for Mr McLaughlin submitted that it is for the defendant to prove that the plaintiff was brought before the court as soon as was practicable. This onus was not in dispute. Counsel submitted that Officer Stanton simply handed the CAN, the Facts Sheet and the other paperwork to the Corrective Services staff, without taking any steps of his own to place the plaintiff before the court. It was submitted that in doing so, Officer Stanton provided paperwork to an organisation which was not a party to the criminal proceedings, and which did not have the right to commence proceedings on behalf of the NSW Police.

140. Counsel submitted that a court only had jurisdiction to hear a bail application if proceedings were pending in the court, and no proceedings were pending prior to the printing and registration of the CAN at 10.35am on Sunday, 3 May 2020. Prior to that time the Local Court had no jurisdiction to hear a bail application.

141. The submissions for the State on this topic were as follows (MFI 6, pars 86-91):

“86. By way of summary, it is not in dispute that:

(a) Following his arrest, the plaintiff was transported to Surry Hills Police Station and booked into custody, where he was initially placed in a ‘time out’ for several hours due to his intoxication and aggressive and irrational behaviour. The plaintiff was offered medical attention by attending ambulance officers but refused to speak to them or provide police with his name or other details.

(b) Between approximately 11am and 12pm the plaintiff participated in the ERISP during which (as submitted above) he confirmed that what had occurred the previous night was ‘pretty much along the lines’ of what Ms Shovelton had earlier told police in the DVEC, but also claimed not to recall what force he had used upon her.

(c) At approximately 12.30pm the plaintiff was charged with common assault pursuant to section 61 of the Crimes Act 1900 (NSW) (Crimes Act) and intentionally choke a person without consent pursuant to section 37(1a) of the Crimes Act.

(d) At approximately 1pm he was refused bail, and at approximately 5pm he was collected from Surry Hills Police Station by the Department of Corrective Services (Corrective Services) and transferred into their custody.

(e) The plaintiff was brought before a Court the following morning on 3 May 2020 (a Sunday), whereupon he was granted bail and released.

87. The plaintiff was transferred from the custody of Surry Hills Police Station to Corrective Services, which relevantly, is a different organisation to the NSW Police Force (albeit located next door to Surry Hills Police Station) at approximately 5:04pm on 2 May 2020.

88. Sergeant Stanton (Sgt Stanton) gave evidence that the reason someone would be transferred from the custody of police to the custody of Corrective Services once they had been bail refused was ‘to see the magistrate’ because Surry Hills Police Station was not a holding station and did not have the capabilities to bring a person before the Court.

89. Further, as a Custody Manager in May 2020, Sgt Stanton did not have power to determine when a person who had been bail refused would be transferred to Corrective Services. That was instead determined by Corrective Services, who would notify Sgt Stanton when they were ready for someone to be transferred. The time between the police notifying Corrective Services that they had someone ready to be transferred, and Corrective Services confirming that they were ready for the person to be transferred, varied from within five minutes to up to a day. Where the transfer did not take place immediately, Sgt Stanton was not told by Corrective Services why they could not do the transfer, he was simply told when Corrective Services were ready. The police would then walk the person in custody across to Corrective Services.

90. As soon as a person in custody had been bail refused and processed, and, where applicable, served with an AVO, then Sgt Stanton would ‘straight away’ notify Corrective Services that the person was ready to be transferred. In Sgt Stanton’s view, it was ‘[a]lways preferable to transfer people as soon as possible, or give them bail, get them out of custody’. That was because, the less people were in Sgt Stanton’s custody, the easier it was for him to maintain a safe charge room – he did not want more work than he needed to do.

91. Sgt Stanton was not challenged on any of the above in cross-examination, and his evidence on all of those points should plainly be accepted.”

142. The submission for the plaintiff on these matters was as follows (MFI 5, pars 66-68):

“66.   There can be no justification for police not filing the court attendance notice immediately with the Local Court, thereby immediately enlivening the Local Court's jurisdiction to entertain the plaintiffs bail application. This must be the end of the matter.

67.   The fact that the police transferred the plaintiff into the custody of the Department of Corrective Services is irrelevant to the resolution of the issue as to whether the police brought the plaintiff before the Local Court as soon as was practicable, as is the fact that Sergeant Stanton provided all the ‘paperwork’ to the Department of Corrective Services when the plaintiffs custody was transferred to the Department. This is because the duty cast upon police under s 46(1) of the Bail Act remains active and is not discharged until the person is brought before a court or authorised justice.

68. Further, there is no statutory provision, of which the plaintiff is aware, that allows the police to delegate their duty under s 46(1) to another government department or organisation. What appears to have happened in the present case is that the police unlawfully delegated their duty under s 46(1) to the Department of Corrective Services.”

143. Reference has been made above to the evidence of Officer Stanton, which includes the following:

1. After bail was refused, Officer Stanton notified Corrective Services that Mr McLaughlin needed to be collected “to see the magistrate”.

2. Corrective Services notified him four hours later, at 5.00pm, that police could bring Mr McLaughlin next door to the Surry Hills Correctives office.

3. Officer Stanton sent all the paperwork, including the CAN, with Mr McLaughlin when he was taken to Corrective Services.

4. Officer Stanton did not file, print or register the CAN himself, which would have given the court jurisdiction to hear a bail application.

5. Officer Stanton had never sent any police bail decision directly to a court and had never heard of anybody else doing it that way.

Conclusion in Relation to Second Imprisonment Claim

144. I find that Officer Stanton did not ensure (the verb in used s 46 of the Bail Act) that after he refused bail, Mr McLaughlin was brought before a court as soon as practicable. There was no power to delegate this obligation to Corrective Services. It was not a discharge of his obligation to simply notify Corrective Services that Mr McLaughlin had been processed fully at Surry Hills Police Station, and then take no further steps to bring Mr McLaughlin before a court, knowing that Corrective Services can take between five minutes and up to a day to accept a prisoner. Officer Stanton knew that Corrective Services had AVL facilities by which a prisoner can appear before the weekend bail court, but did nothing to ensure that this happened. Even more perplexing is the failure of Officer Stanton to print the CAN, which would have the effect of giving the court jurisdiction to deal with the charges, and of course hear a bail application. Once again this was left to Corrective Services when it should have been done by the police to ensure compliance with s 46 of the Bail Act.

145. The State, which bore the onus of proving that the continuing detention of Mr McLaughlin was lawful, called no evidence to demonstrate that it had brought Mr McLaughlin before a court as soon as reasonably practicable. Simply saying, in effect, this is the way we always do it, is not enough.

146. I find that Mr McLaughlin is entitled to succeed in relation on the second claim of false imprisonment.

Damages

General Damages

147. Counsel for the plaintiff submitted that damages for the tort of false imprisonment compensate not only for the loss of liberty, but also for the loss of dignity and reputation. In the absence of any evidence whatsoever from the plaintiff, it is impossible to find that there was any loss of dignity or reputation. However, loss of liberty, even for a short period, is not a trivial wrong – Watson v Marshall [1972] HCA 27; (1972) 124 CLR 629 at p 632.

148. Counsel for the plaintiff submitted that there should be an award of $30,000 for the second false imprisonment, which resulted in the plaintiff being “unjustifiably imprisoned overnight, from 12.59pm on 2 May 2020 to at least 10.35am on 3 May 2020”. Counsel for the defendant made no submission as to an appropriate figure for general damages, relying on a primary submission that the plaintiff had failed to establish any of the “factual integers” (presumably the “facts”) necessary to succeed on his claim (MFI 6, par 133). I have rejected that submission by finding above that the plaintiff is entitled to succeed in relation to the second claim for false imprisonment.

149. There is no evidence of the conditions of incarceration of the plaintiff at the Surry Hills Corrective Services Centre overnight. While I can be certain that Mr McLaughlin was not repining in sybaritic luxury, he did not enter the witness box to give any evidence of how he was kept or treated. What is certain is that almost every citizen would rather be at liberty, than spend the night in custody. I find that the plaintiff is entitled to $5,000 for general damages for the second period of alleged false imprisonment.

Aggravated Damages

150. Aggravated damages may be awarded to a plaintiff who suffers increased distress as a result of the manner in which a defendant behaves when committing the offence. Again, in the absence of any evidence from the plaintiff, it is impossible to know whether there was increased distress. In Uren v John Fairfax & Sons Pty Ltd [1966] HCS 40; (1966) 117 CLR 118, Justice Windeyer at p 152 described the necessary conduct as insulting or reprehensible or capable of causing the plaintiff to suffer indignity or outrage to his or her feelings.

151. The ASOC pleaded specific “hurt” which the plaintiff suffered which should lead to an award of aggravated damages. In the absence of any evidence from Mr McLaughlin about his pleaded allegations, I will make no award for aggravated damages.

Exemplary Damages

152. Exemplary damages are awarded as a form of punishment to deter repetition of reprehensible conduct by a defendant. They are awarded to act as a mark of the court’s disapproval of the conduct.

153. The court does disapprove of the blasé conduct of the police in simply shrugging their shoulders at the four-hour delay in transferring the plaintiff to the building next door. I accept the submission of counsel for the plaintiff that it is no excuse that the police have delegated their duty under s 46 of the Bail Act to Corrective Services. This is particularly so in circumstances where Officer Stanton said that the delay in Corrective Services collecting a prisoner could be anywhere from five minutes to a day. Further, there was no explanation put forward by the police as to why the CAN was not printed until 10.35am on Sunday 3 May 2020, which then gave the court, for the first time, jurisdiction to hear a bail application. The CAN was generated at the Surry Hills Police Station and could have been printed at the touch of a button, which would have put the matter within the jurisdiction of the Local Court. It was a combination of the police waiting for Corrective Services to collect the plaintiff, and not taking simple steps to put the matter before a court until the next morning, which led to the plaintiff being deprived of his liberty overnight.

154. Just because this is the way things were always done does not mean that they were being done correctly. It is disturbing if this is the usual practice, and the offhanded nature of the way in which the police approached their duty to place the plaintiff before the court as soon as practicable calls for an award of exemplary damages.

155. I find that there should be an award of exemplary damages of $5,000.

Summary of Damages

156. I find that the plaintiff is entitled to the following heads of damage:

General Damages	$5,000
Aggravated Damages	NIL
Exemplary Damages	$5,000
TOTAL	$10,000

Costs

157. The parties requested that the court deliver its judgment on liability and conduct a separate hearing on costs. Costs will therefore be reserved. I will appoint a day for oral submissions in relation to costs.

Orders

158. The orders of the court are:

1. Judgment for the plaintiff against the defendant for $10,000.

2. Costs reserved.

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Decision last updated: 29 November 2023