McStravick v The State of Western Australia
[2001] WASCA 398
•10 DECEMBER 2001
McSTRAVICK -v- THE STATE OF WESTERN AUSTRALIA & ORS [2001] WASCA 398
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 398 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:11/2001 | 3 SEPTEMBER 2001 | |
| Coram: | MALCOLM CJ STEYTLER J EINFELD AJ | 10/12/01 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CYRIL MICHAEL McSTRAVICK THE STATE OF WESTERN AUSTRALIA ANTHONY THOMAS DANNY SELDAM ALISON SELDAM NEIL GOUGH MARY GOUGH PETER VAN RYN MICHAEL NELSON GREG HARLAND ALEX JONES WAYNE DREW GLENIS GARNETT DANNY MEADE ROHAN CALVERT CRAIG NELSON |
Catchwords: | Torts Negligence Police officer injured when attacked by persons being members of "bikie gangs" attending "Bremer Bay Bash" Whether police officer exercising discretion and control over him failed to exercise reasonable care to protect him from injury |
Legislation: | Nil |
Case References: | Nil A-G(NSW) v Perpetual Trustees Co Ltd (1952) 85 CLR 237 Birkholz v Gilbertson Pty Ltd (1985) 38 SASR 121 Chapman v Hearse (1961) 106 CLR 112 Chappel v Hart (1998) 195 CLR 232 Devries v Australia National Railways Commission (1993) 177 CLR 472 Donoghue v Stevenson [1932] AC 562 Doonan v Beacham (1953) 87 CLR 346 Edna Bropho v State of Western Australia, unreported; SCt of WA; 31 August 1990 Enever v R (1906) 3 CLR 969 Grant v Australian Knitting Mills & Ors [1936] AC 85 Griffiths v Haines [1984] 3 NSWLR 653 Hamilton v NuRoof (WA) Pty Ltd (1956) 96 CLR 18 Hughes v Minister for Health [1999] WASCA 131 Keeys v State of Queensland (1997) A Tort Rep 81441 Knightley v Johns [1982] 1 All ER 851 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 McGhee v National Coal Board [1973] 1 WLR 1 Menner & Ors v Falconer, unreported; SCt of WA; 6 August 1997 Middleton v State of Western Australia (1992) 8 WAR 256 Minister of Police Commissioner of Police v Western Australian Police Union of Workers [2000] WAIRC 01174 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 Mt Isa Mines v Pusey (1970) 125 CLR 383 Rosenberg v Percival [2001] HCA 18 Sibiya v Swart [1950] SALR 515 Smith v Leurs (1945) 70 CLR 256 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Warren v Coombes (1979) 142 CLR 531 WA v Watson [1990] WAR 248 Western Australia v Bond Corp (1991) 5 WAR 40 Zalewski & Anor v Turcarolo, unreported; FCt SCt of Vic; 1 July 1994 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : McSTRAVICK -v- THE STATE OF WESTERN AUSTRALIA & ORS [2001] WASCA 398 CORAM : MALCOLM CJ
- STEYTLER J
EINFELD AJ
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
First Respondent
ANTHONY THOMAS
DANNY SELDAM
ALISON SELDAM
NEIL GOUGH
MARY GOUGH
PETER VAN RYN
MICHAEL NELSON
GREG HARLAND
ALEX JONES
WAYNE DREW
GLENIS GARNETT
DANNY MEADE
ROHAN CALVERT
CRAIG NELSON
Second Respondents
(Page 2)
Catchwords:
Torts - Negligence - Police officer injured when attacked by persons being members of "bikie gangs" attending "Bremer Bay Bash" - Whether police officer exercising discretion and control over him failed to exercise reasonable care to protect him from injury
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr B L Nugawela
First Respondent : Mr G T W Tannin & Ms F B Seaward
Second Respondents : Mr M W Schwikkard
Solicitors:
Appellant : Friedman Lurie Singh
First Respondent : State Crown Solicitor
Second Respondents : McAuliffe Williams
Case(s) referred to in judgment(s):
Nil
(Page 3)
Case(s) also cited:
A-G(NSW) v Perpetual Trustees Co Ltd (1952) 85 CLR 237
Birkholz v Gilbertson Pty Ltd (1985) 38 SASR 121
Chapman v Hearse (1961) 106 CLR 112
Chappel v Hart (1998) 195 CLR 232
Devries v Australia National Railways Commission (1993) 177 CLR 472
Donoghue v Stevenson [1932] AC 562
Doonan v Beacham (1953) 87 CLR 346
Edna Bropho v State of Western Australia, unreported; SCt of WA; 31 August 1990
Enever v R (1906) 3 CLR 969
Grant v Australian Knitting Mills & Ors [1936] AC 85
Griffiths v Haines [1984] 3 NSWLR 653
Hamilton v NuRoof (WA) Pty Ltd (1956) 96 CLR 18
Hughes v Minister for Health [1999] WASCA 131
Keeys v State of Queensland (1997) A Tort Rep 81441
Knightley v Johns [1982] 1 All ER 851
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McGhee v National Coal Board [1973] 1 WLR 1
Menner & Ors v Falconer, unreported; SCt of WA; 6 August 1997
Middleton v State of Western Australia (1992) 8 WAR 256
Minister of Police Commissioner of Police v Western Australian Police Union of Workers [2000] WAIRC 01174
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61
Mt Isa Mines v Pusey (1970) 125 CLR 383
Rosenberg v Percival [2001] HCA 18
Sibiya v Swart [1950] SALR 515
Smith v Leurs (1945) 70 CLR 256
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Warren v Coombes (1979) 142 CLR 531
WA v Watson [1990] WAR 248
Western Australia v Bond Corp (1991) 5 WAR 40
Zalewski & Anor v Turcarolo, unreported; FCt SCt of Vic; 1 July 1994
(Page 4)
1 MALCOLM CJ: This was an appeal against a judgment of Fenbury DCJ dated 13 December 2000 by which the learned Judge dismissed the appellant's claim for damages for negligence against the respondents. In my opinion the appeal should be dismissed for the reasons to be published by Einfeld AJ with which I agree. In the circumstances it is unnecessary to deal specifically with the issues raised by the first respondent and the second respondents in their notices of contention in view of the conclusion that, on the evidence, the conclusion by the learned trial Judge that neither of the respondents was or were negligent was justified by the evidence.
2 STEYTLER J: I have had the advantage of reading, in draft, the reasons to be published by the Hon Acting Justice Einfeld. I agree with them and have nothing to add.
3 EINFELD AJ: In the early morning of 31 March 2000 at a social function called the "Bremer Bay Bash" (the Bash), the appellant, while acting in his capacity as a serving police officer, was assaulted by one or more of a group of what are known as "bikies" (members of motor cycle groups). He subsequently sought damages in negligence against the State of Western Australia as his alleged employer (the State) and the members of the unincorporated association which was licensed to conduct the Bash (the licensees) (together, the respondents). On 13 December 2000, the District Court (Fenbury DCJ) dismissed the claim on the ground that liability in negligence had not been established.
4 The appellant now appeals that decision effectively on the ground that his Honour's decision was wrong in fact and law. Each of the respondents has filed notices of contention, asserting that the judgment should be affirmed on grounds other than those his Honour relied on. The licensees' contentions are only advocated if the appellant's arguments succeed.
5 The trial was conducted on the issue of liability only. It was admitted or assumed that the appellant had sustained injury on the occasion in question. At the trial, the appellant alleged against the State that at the time of his injuries:
1. he was an employee of the State as the entity which appointed the Commissioner of Police;
2. he was in the course of his employment subject to the direction and control of the State;
(Page 5)
- 3. the State owed him a duty to provide a safe system of work;
4. the State was vicariously liable for the negligence of the police officers exercising direction and control over him;
5. those officers failed to carry out that duty.
6 Only the finding of negligence was argued on appeal. The particulars of breach of duty alleged against the State were that it failed:
(a) to provide adequate numbers of police officers to control the significant numbers of patrons expected at the Bash;
(b) to ensure a sufficiently experienced senior police officer was on duty in charge of the police personnel at the Bash;
(c) to control the numbers attending the Bash;
(d) to control the supply of alcohol to the people attending the Bash;
(e) to terminate the supply of alcohol to persons attending at the Bash at the time when numerous instances of drunkenness, disorderly conduct and lawless behaviour were obvious;
(f) to terminate the Bash at the time when numerous instances of drunkenness, disorderly conduct and lawless behaviour were obvious;
(g) by the officer in charge of the Bash, to adequately brief the officer in charge of police at Albany on the true nature and extent of problems and lawlessness occurring at the Bash so as to permit a proper assessment of necessary reinforcements to be made;
(h) to send sufficient and adequate reinforcements;
(i) to provide sufficient quantities of proper protective clothing and other riot gear to the plaintiff and other reinforcement police officers;
(j) to properly train and instruct the plaintiff and other police in crowd and riot control;
(k) to provide assistance to the plaintiff in that three fellow officers stood by and watched the assault on the plaintiff without rendering assistance to him;
- and that it:
(Page 6)
- (l) required the plaintiff to attend at a bikie camp in circumstances where police officers were seriously outnumbered by drunken and aggressive bikies but when there was no sufficient or good cause for attending at that area, the bikies at that time keeping to themselves.
7 The allegations against the licensees included that:
1. they occupied and controlled the property on which they were conducting the Bash;
2. they were in a relationship of "proximity" to the appellant such as to give rise to a duty of care to him to:
"organise and conduct the Bash in a manner such as to prevent unlawful, disorderly and riotous behaviour occurring thereat in that in the event such behaviour occurred there was a foreseeable risk that a police officer would be required to attend at the Bash so as to prevent or suppress such behaviour and thereby place himself or herself at risk of bodily injury."
3. they caused or permitted "a state of anarchy" to develop and "unlawful, drunk and disorderly and riotous behaviour" to occur such as to require the attendance of police reinforcements.
8 Particulars included that they failed:
(a) "to limit or control the numbers of patrons attending at the Bash with the result that the police and security guards in attendance were vastly outnumbered and were unable to maintain good order or control with the result that unlawful, drunken, disorderly and riotous behaviour occurred such as to require the attendance of police reinforcements;"
(b) "to provide adequate numbers of security guards at the Bash with the result that the police and those security guards in attendance were vastly outnumbered and were unable to maintain good order or control with the result that unlawful, drunken, disorderly and riotous behaviour
(Page 7)
- occurred such as to require the attendance of police reinforcements;"
- (c) to control "the supply of alcohol to the people attending the Bash in that those persons who did attend were provided with unlimited and unrestricted quantities of alcohol even if already inebriated with the result that unlawful, drunken, disorderly and riotous behaviour occurred such as to require the attendance of police reinforcements;"
(d) to stop the supply of alcohol;
(e) "to terminate the Bash at a time when numerous instances of unlawful, drunken, disorderly and lawless but riotous behaviour had begun to occur so as to prevent further behaviour of that type occurring such as to require the attendance of police reinforcements."
9 The evidence established the following background facts to the satisfaction of the trial Judge, or by admission or lack of contest:
1. The Bash was held in a paddock a kilometre or two out of Bremer Bay. It had been held in several previous years and was a well-known social "get together" which attracted many thousands of people to the district.
2. The licensees obtained a liquor licence for the function. One of its requirements was that the area of the paddock being used as the compound be fenced off.
3. Toilet facilities and a stage for a live band were constructed. Continuous music was played during the function.
4. Food and alcohol were provided, and an entry fee of $35 per person was charged. About 900 persons paid the entry fee while a large number gathered outside the compound but did not enter, including members of three motor cycle groups ("gangs") called the Gypsy Jokers, the Club Deroes and God's Garbage. Each of these gangs set up "camp" outside and some distance from the enclosed Bash area.
(Page 8)
- 5. The function - and the drinking - commenced in the late afternoon. No doubt as a result of previous experience, the number of people present, and the amount of alcohol being consumed, the police and the licensees decided that the two local police officers should be reinforced by others. As a consequence, ten police officers eventually became the available complement. There were also six "bouncers" from Perth, eight SES volunteers, most or all of the licensees themselves, and several other members of the association.
6. Brawls broke out between bikies and Aborigines outside the Bash compound early in the evening and a utility vehicle belonging to an Aborigine was destroyed, apparently by a member of the Club Deroes. The police were called and attended. They took up a position between the two groups in an effort to calm the situation.
7. It worked for a time, but a substantial fight erupted at about 10.40 pm involving about 50 bikies and 30 Aborigines. The police attempted to stop the fighting, but they were outnumbered and withdrew to seek further assistance. Reinforcements from Albany, including the appellant who was woken up at home and required to attend in uniform, arrived at about 11.30 pm and the explosive situation abated.
8. At no time did the police use riot gear such as helmets and shields, nor did they use batons or weapons. Apparently the view was taken that such equipment would have exacerbated the situation. The trial Judge regarded the police restraint as sensible.
9. The alcohol was turned off at about 12.30 am and most patrons had left the area by about 1 am.
10. After the arrival of the Albany police reinforcements, it was decided that some police would visit the camps of each of the bikie gangs. Other than verbal abuse, they encountered no trouble with the Gypsy Jokers or Club Deroes. But at God's Garbage camp, there was some "scuffling" involving pushing and shoving.
11. Senior Sergeant Cassidy from Albany, who had joined the police force in 1974, attempted to arrest one bikie who was being particularly aggressive, abusive and insulting.
(Page 9)
- However, other bikies pulled him away and in the melee which followed, he fell or was pushed to the ground. He was not injured. Sergeant Cassidy’s view, agreed with by several other officers, including those with experience in their use, was that riot gear and specialised equipment would have been provocative and exposed police "to litigation". Sergeant Cassidy was regarded by the trial Judge as "a most impressive witness".
10 In his reasons for judgment, the learned trial Judge summarised the appellant's case very briefly. He said that the appellant was one of the police at God's Garbage camp and that he was there assaulted by a man with "a fist full of rings". His Honour noted the appellant's evidence that the event was a very frightening experience for him, and that he sustained soft tissue injury and significant psychological consequences. Having regard to the fact that the injuries were not contested, the Judge noted somewhat quizzically that the appellant had not reported the matter until about eight weeks after it occurred. He has been on a disability pension ever since.
11 Corroboration for the appellant's account came from former Constable Darren Brown who painted what the trial Judge considered to be an unreliable and exaggerated picture of considerable mayhem throughout the evening. The learned Judge found that Brown was a "mate" of the appellant, that he also had left the police force following an injury and was on a pension, and that for that reason or others he was hostile to the police. His Honour did not accept his evidence especially when it conflicted with the evidence of other officers.
12 An entry in the Albany Police Occurrence Book, made at midnight by a Sergeant Curtis, also supported the appellant to some extent. Sergeant Curtis, an officer of 30 years' experience, wrote:
"First Class Sergeant Curtis and Police Constable McStravik recalled to duty. Above attended in company with PC Williams at Bremer Bay re Bikie trouble. On arrival police confronted several groups of bikie groups and whilst attempting to quell a disturbance between bikies Constable C McStravick was attacked by several bikies one of which head butted him on three occasions whilst another person (unknown) punched him in the kidney. This caused him severe pain in the head and kidney region."
13 The trial Judge found that:
(Page 10)
- 1. the number of police made available was adequate;
2. the officers in charge at various stages of the evening were sufficiently experienced for what was required;
3. the numbers at the Bash were not excessive;
4. the police had no authority to control the numbers outside the cordoned off area;
5. the police were not responsible for controlling the supply of alcohol;
6. the judgment made not to terminate the flow of alcohol at the Bash required balancing the detrimental effects of excessive intake of alcohol with what may have occurred if it had been terminated. The decision not to terminate was in the circumstances not negligent;
7. for similar reasons, it was not negligent not to have terminated the Bash earlier than it actually finished. In any event, whether it was terminated or not was not relevant to what happened to the appellant;
8. there was no failure to brief the Albany police;
9. the 19 police officers at the scene were sufficient for what was required;
10. there was no requirement to supply protective clothing such as riot gear which is likely to have been provocative;
11. there was no inadequacy in the training and instruction of the officers present including the appellant, and in any event, there was no causal nexus between any such failure and the appellant's injuries;
12. the decision that police visit God's Garbage camp was reasonable and justified as it was to head off further trouble, and the number of police used in that exercise was adequate in the circumstances;
13. the failure of other police to go to the assistance of the appellant, which was not denied, was not negligent, although his Honour's exact finding was:
"I am not satisfied that the facts relied on have been made out."
(Page 11)
14 These then represented the grounds for the dismissal of the case against the State. They meant that no findings on the employment issue were necessary.
15 The appellant's case against the licensees was that they should have foreseen that people would not stay in the compound and would congregate outside. Nonetheless, they would remain under the licensees' control because their licences permitted an external congregation. The licensees had in fact foreseen trouble between the bikies and Aborigines. Having advertised the function extensively, the licensees were responsible for ensuring that nothing "went wrong".
16 The trial Judge found that:
1. as there had been no significant trouble at any previous Bash, there was no reason for the licensees to suspect trouble on this occasion, and in any event, more police were organised and bodyguards, SES workers, the licensees themselves and other members of their club were present and on duty;
2. the cordoning off of the area was adequately performed and the entry was staffed;
3. nothing out of the ordinary occurred within the compound, the Bash was well run and orderly, and its ending was also orderly;
4. licensees of such functions cannot guarantee that there will be no trouble outside the compound, the police did not foresee the trouble which occurred, and the licensees could not be expected to have done so;
5. the number of entrants to the compound was controlled and not excessive;
6. there were ample personnel to conduct and control the Bash itself;
7. the licensees had no obligation to staff the area outside the cordoned off area;
8. the supply of alcohol was well controlled and the licensees were never asked by police to stop the supply;
9. there was no evidence that the people outside the compound were supplied with alcohol from within it, and
(Page 12)
- in fact, many bikies outside the compound had been to the local hotel before coming to the area;
- 10. premature or early termination of the Bash would have been likely to cause more problems than it would have solved, and in any event, the appellant's injuries were sustained a considerable time after the Bash concluded in the normal course;
11. there was, in any event, no causal nexus between the appellant's injuries and any of the allegations against the licensees.
17 The grounds of appeal filed by the appellant asserted that all or most of his Honour's findings were, as it was put, "wrong". Those that are dressed up as issues of law raise, on proper analysis, merely questions of facts such as to seek, in effect, a retrial of the factual issues raised at the trial. It is not the function of an appellate court to try factual issues of this kind.
18 However, the appeal was actually argued somewhat differently. The appellant said that:
1. the decision to enter or approach the God's Garbage camp was provocative, unwarranted and dangerous;
2. the failure of other police to assist the appellant while he was being assaulted was a breach of the State's duty of care to take reasonable steps to secure his safety;
3. there was a direct causal nexus between the appellant's injuries and the failure to foresee the need for extra police and a "show of force";
4. there was inadequate control of the alcohol consumption, and no control at all of the outward flow of alcohol from within the compound, which was a breach of the licensee's liquor licence;
5. as shown by the need to withdraw from the earlier melee, the police presence was manifestly inadequate, especially in the visit to God's Garbage camp where there was an obvious risk of violence;
6. the "show of force" was dissipated by the fact that some of the force members were elsewhere.
(Page 13)
19 The respondents basically replied to these contentions by stating that there was in each case evidence to sustain the trial Judge's findings. They said that it was not their responsibility to control the supply of alcohol to persons attending the Bash, let alone to the bikies outside it. There was no evidence that the bikies had obtained their alcohol from within the cordoned off area. Indeed, the evidence was that very few bikies were within the Bash perimeter and there were no large crowds of people outside the perimeter who had previously been inside it.
20 As far as concerns the visit to the God's Garbage camp, the respondents contended that the trial Judge had evidence that the police went there for a number of reasons, including to keep the bikies under close watch, to investigate the criminal damage done to the utility owned by the Aborigine, and to attempt to arrest a bikie who had earlier refused to co-operate with police investigations into that matter. However, the fact that a member of the Club Deroes gang had previously been identified as responsible for damaging the vehicle may have been the reason his Honour made no finding on this matter.
21 In my opinion, the resolution of this dispute is not to be found in any such analysis. With the exception of the appellant's assertions concerning the failure of police to assist the appellant when he was under assault, I am of the view that there is no causal nexus between any of the acts of negligence alleged and the appellant's injuries. There was, as it happens, ample evidence to explain and justify his Honour's factual findings on matters such as the numbers and training of police, the absence of riot gear, the control of alcohol, and the early termination of the festivities. But the main disqualification of the appellant's case on these matters was their lack of connection with the appellant's assault by bikie gang members at the God's Garbage camp. Because the evidence on the matter was sparse, it was or would have been open to the trial Judge to find that the aggression of the perpetrators of the assault was not energised by liquor at all. There was certainly no evidence of excess liquor emanating from the licensed area to the God's Garbage gang. No training, riot gear or other action taken by police or the licensees could have had any relevance to the circumstances within the God's Garbage camp when the appellant was injured.
22 Nor can I see a basis for sustaining the appellant's contention that the police should not have gone to the camp at all, and that there were too few of them anyway. Police are entitled to view congregations of people to ascertain if they are behaving in an unruly fashion, or if there has been an excessive intake of liquor such as might lead to unlawful behaviour.
(Page 14)
- Especially is this so of bikie gangs who, whether rightly or wrongly, they might suspect from previous experience have something of a reputation for violent or lawless behaviour. The licensees for their part cannot be held responsible for such behaviour outside their licensed premises any more than a publican can be required to monitor and control the behaviour of persons congregating outside and away from his hotel.
23 Which leaves the contention that the appellant's police colleagues did not come to his aid. At the time of the assault, there were apparently nine or ten other officers at the God's Garbage camp besides the appellant. The appellant's account of the assault was that after he and other police had been to the Gypsy Jokers' camp, they went towards the gravel pit where God's Garbage camp was. As he approached, he heard a lot of shouting and verbal abuse. When he reached the camp, he saw between 40 and 50 bikies. The police contingent was quite large. Two police were in one spot, two in another and two were mingling with the bikies, who were verbally making clear that police were not welcome. Other police were elsewhere in the pit. The camp was about 30 metres square.
24 His evidence then proceeded (AB71-2):
" ... another gentleman - another bikie-type person - came up to Detective Sergeant Cassidy and told him to fuck off. Detective Sergeant Cassidy asked him what his name was and the bloke never answered and detective Sergeant Cassidy introduced himself and asked him what his name was and the bloke refused to answer, so Detective Sergeant Cassidy informed him that he was under arrest and at that time I noted that Constable Sears was standing beside Detective Sergeant Cassidy and when Detective Sergeant Cassidy grabbed hold of this gentleman, Constable Sears grabbed the other side. There was a huge tug of war commenced and they sort of got pulled right into the middle of where all these bikies were standing and as I observed that, I started moving in behind and as I was going in behind them, a bloke came running across and shirt fronted me and I sort of rolled off that and kept going in behind and at the same time I saw another gentleman coming in from behind Detective Sergeant Cassidy and from what I saw it appeared that he smacked Detective Sergeant Cassidy in the back of the head and that caused him to go down and - - -
FENBURY DCJ: Smacked?---It appeared that the bloke had come across and gone bang, just smacked him in the back. It
(Page 15)
- appears that that's what it was. It was like a swinging arm. Detective Sergeant Cassidy fell to the ground with the offender and Constable Sears at the same time. Then I approached this bloke that I saw do this and I advised him that he was under arrest. At that time he spun around and he head-butted me. I started moving backwards, just out of the force of it, and he sort of charged in and head-butted me again and then again and then I just hit a wall of blokes that I found were bikies too. I had nowhere to go.
CLYNE, MR: And then?---And then - then I copped it.
When you say you copped it, what do you mean?---Well, this bloke that I had spun around initially that had head-butted me, he started punching me, all right, and I noted that he had a fist full of silver rings that, you know, with skulls and things like that and he had a can of beer in his hand and he struck me to the left side of my ear and then he struck me again up here and then again in the same area.
Just above the ear?---Just above the ear.
Yes?---And then I can remember looking over, like I was floundering, and I saw Sergeant Curtis' face and he just looked shocked and he was probably about 7 or 8 metres, maybe more, maybe less, away from me at the time and the next thing I recall was being dragged out by Sergeant Curtis and Constable Browne.
Did you remain standing throughout this?---I thought I did but I was told afterwards no.
What do you recall after you were hit the three times?---I just recall seeing this first full of rings striking me in the same - well, coming at me and then I just felt that I was being attacked from behind at the same time.
Do you recall any other blows to other parts of your body?---Yes, around my back, my head.
You remember being pulled out, who pulled you out?---Sergeant Curtis and Constable Browne eventually dragged me out and I was taken out to the decline leading in -
(Page 16)
- into the gravel pit itself. Sergeant Curtis advised Constable Browne to stand by me, stand with me.
What happened then?---Well, shortly after that we went back to the vehicles and I was asked if I was okay and I can remember sort of having a bit of a snigger to myself and said, 'Yeah, I'm all right' and then the pain started to set in and I thought I had actually been stabbed because like my shirt was soaking and I had pretty bad pain around my back and I sort of felt for it and then I looked and from what I saw it was clear and I smelt it and it was beer and my hair was saturated."
25 In cross-examination, he said that he was not specifically directed to go to God's Garbage camp but, as he was part of the police squad, it was clearly expected that he would do so. From what he knew and heard, he felt that police who were there were in danger and he went to assist them. He said that, apart from the arrest executed by Sergeant Cassidy, the police were not being overly aggressive or provocative. On the actual assault his evidence in cross-examination was (AB84-5):
"And prior to the assault commencing on you, you advised the bikie - it was a bikie, is that correct, who head-butted you?---I assume so.
And you advised him that he was under arrest?---That's correct.
And that was because he was the person who you had seen - - -?---Who I observed - - -
- - - assault - - -?---That's correct.
- - - Sergeant Cassidy?---That's correct.
And you were struck - apart from being head-butted by that person - you were struck several times, you say, or punched several times in your head by another person. Is that correct?---Well, I don't know how many - I don't [know] how many struck me that night. I really don't.
And it was Sergeant Curtis and Constable Browne, you recollect, who dragged you out of the melee?---That's to the best of my recollection. That's correct.
Can I suggest to you that the whole incident at that God's Garbage camp took no more than 5 minutes?---I really couldn't
(Page 17)
- say. I really couldn't say. When the assault occurred on me, I was in fear of my life then.
And that was what your attention was concentrated on, defending yourself. Is that correct?---Defending myself or protecting myself would probably be more accurate.
At no time did you remove your baton from your belt. Is that right?---I had no time to do anything like that.
You didn't take it out prior to you attending at the God's Garbage camp?---No.
And neither did you take your firearm out?---No."
26 Other police officers gave evidence of this encounter. All the accounts were different to one extent or another. It is clear, however, that some of the officers present either did not see it, or had only a vague idea of what occurred because it happened so quickly, and they were concerned to prevent, or were fearful of, a general riot. The clear impression I gained from their evidence was that as soon as they realised what was happening, some of them at least tried to get to the appellant to assist him, but by the time they could do so, the damage to him was already done.
27 There was no basis on the evidence for a finding that police deliberately or negligently stood back and allowed the appellant to be assaulted. The officers were in a dangerous and difficult situation. They would have been well aware that the situation was "on the edge" and of the possibility that it could decline rapidly putting all of them at serious risk of injury, including if one or more of their number was set upon by the bikies. No inference was available that they were willing to cast a colleague aside for their own safety. In a real sense, they were dependent on all for the safety of each.
28 It is true that the learned trial Judge did not attempt an analysis of the evidence on the assault, not even of the appellant's evidence. But for the appellant to succeed on appeal, it is not sufficient to point out possible weaknesses or gaps in the formulation of the reasons for judgment below. It is necessary to show that the tribunal of fact, which had the opportunity to hear and assess the evidence, either misunderstood or misrepresented it, or misused the benefit of exposure to the witnesses. I have been able to find no basis for such a conclusion in this case. The District Court's
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- finding that there was no negligence by either respondent was justified by the evidence.
29 Those findings make it unnecessary to examine the issues of employment, the vicarious liability of the Crown and the liability of licensees for what happens to police acting in the course of their official duties. I must say, though, that I cannot see how the licensees could be held to owe the appellant a duty of care. Nor is it necessary to deal with the notices of contention.
30 The appeal should be dismissed with costs.
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