Moutia Elzahed and Anors v Commonwealth of Australia and State of NSW

[2016] NSWDC 353

District Court

New South Wales

Medium Neutral Citation:	Moutia Elzahed & Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 353
Hearing dates:	28 November 2016, 29 November 2016, 30 November 2016, 1 December 2016, 2 December 2016 and 7 December 2016
Date of orders:	15 December 2016
Decision date:	15 December 2016
Jurisdiction:	Civil
Before:	Balla DCJ
Decision:	1. Verdict for the first defendant against the first plaintiff. 2. Verdict for the second defendant against the first plaintiff. 3. Verdict for the first defendant against the second plaintiff. 4. Verdict for the first defendant against the third plaintiff. 5. Verdict for the second defendant against the third plaintiff. 6. Verdict for the first defendant against the fourth plaintiff. 7. Verdict for the second defendant against the fourth plaintiff.
Catchwords:	Search Warrant. Reasonable and necessary force.
Legislation Cited:	Crimes Act (Cth) 1914 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	State of New South Wales v Williamson [2011] NSWCA 183 at [24] Martin v The Queen [2015] ACTCA 38
Category:	Principal judgment
Parties:	Moutia Elzahed & Anors (Plaintiffs)   Commonwealth of Australia (First Defendant) State of New South Wales (Second Defendant)
Representation:	Counsel: Mr C Evatt with Mr G Foster (Plaintiffs) Mr D Staehli, SC (First Defendant) Mr M. Spartalis (Second Defendant)   Solicitors Zali Burrows (Plaintiffs) Australian Government Solicitor (First Defendant) Crown Solicitor for NSW (Second Defendant)
File Number(s):	2014/305851

contents

Who gave evidence?  - paragraph [2]

What are their claims? - paragraph[4]

Issues pleaded in the Third Further Amended Statement of Claim - paragraph [4]

Other issues not pleaded - paragraph [6]

Validity of the search warrant - paragraph [6]

Liability of the AFP for actions of the NSW Police - paragraph [9]

Legal framework - paragraph [20]

Findings - paragraph [27]

Claims against the AFP - paragraph [29]

Claims against NSW Police - paragraph [37]

Claim by Ms Elzahed in para 7 of Third Further Amended Statement of Claim - paragraph [38]

Claim by Mr Alqudsi - paragraph [59]

Claim by younger son in para 7 of Third Further Amended Statement of Claim - paragraph [60]

Claim by older son in para 7 of Third Further Amended Statement of Claim - paragraph [66]

Paras 8 and 9 of the Third Further Amended Statement of Claim - paragraph [90]

Matters raised by counsel for the plaintiffs - paragraph [92]

Orders 

Judgment

1. This is a claim by four plaintiffs for damages arising out of the execution of a search warrant at their home on 18 September 2014. The first defendant is joined as the entity responsible for the Australian Federal Police and the second defendant is joined as the entity responsible for the NSW Police Force. Liability is in issue.

Who gave evidence?

2. The first plaintiff, Ms Elzahed, did not give evidence. She is the wife of the second plaintiff, Mr Alqudsi and the mother of the other two plaintiffs. The younger son also did not give evidence.

3. Mr Alqudsi, the older son, five NSW police officers and one AFP officer did give evidence.

What are their claims?

Issues pleaded in the Third Further Amended Statement of Claim

4. The Third Further Amended Statement of Claim was filed during the hearing. A pleading should give such particulars of a claim as are necessary to enable the opposite party to identify the case that the pleading requires him to meet (UCPR 15.1). I would make the following observations:

1. The pleading does not explain which claim is made against which defendant.

2. The causes of action are not clearly articulated. Concepts such as assault and battery, wrongful arrest and false imprisonment are mentioned.

5. The Third Further Amended Statement of Claim relevantly says:

1   The First Defendant is the entity liable and responsible for the conduct, acts and omissions of officers and members of the AFP.

1A   The Second Defendant is the entity liable and responsible for the conduct, acts and omissions of officers and members of the NSW Police Force.

1B   ln these pleadings the phrase 'the officers' means officers and/or members of the AFP and/or officers and/or members of the NSW Police Force.

2   On 18 September 2014 officers of the Australian Federal Police (AFP) and officers of the New South Wales Police (NSWP) entered the home of the Plaintiffs at 19 Creswell Street, Revesby. They were disguised by balaclavas and were carrying rifles, guns or similar type military weapons.

7   Further and in addition the officers assaulted and beat the Plaintiffs on the date and at the place referred to above.

Particulars of assault and battery

The First Plaintiff was punched in the ear, eye and head, was held and moved in a brutal manner; was handcuffed in an aggressive and hurtful manner, her ear bled, she was mentally and physically abused; she was screamed at and was humiliated. She suffered bodily and mental pain.

The Second Plaintiff’s head was held by the officers who pushed his head down on the ground injuring it and his nose and preventing him from breathing, talking or calling out. He was wounded and punched on the back thereby aggravating a previous back condition. He was handcuffed in a brutal manner and his arms and wrists became sore and cramped; The Second Plaintiff suffered bodily and mental pain.

The Third Plaintiff was pushed down on the floor with violence by officers and handcuffed in an aggressive manner injuring his arms and wrists. He suffered bodily and mental pain on seeing and witnessing the assault and battery of his mother.

The Fourth Plaintiff was slammed on a cupboard and still has marks on his stomach. He also was pushed on the floor in a violent manner and handcuffed. He suffered bodily and mental pain as well as physical injury aggravated by the officer’s treatment of his mother.

8   At the said time and place referred to above the four Plaintiffs were wrongfully arrested and imprisoned by the officers who impeded their liberty by handcuffing and restraining them from moving freely and by keeping them under strict and constant control.

9    Further and in addition the officers intimidated the Plaintiffs by aggressively calling the Third and Fourth Plaintiffs terrorists, by aggressively calling the First Plaintiff a bitch and by beating and assaulting them, wearing balaclavas and carrying firearms and weapons and their general conduct in handling and by bullying and frightening them.

Other issues not pleaded

Validity of the search warrant

6. During the hearing counsel for the plaintiffs suggested that the plaintiffs would claim that the search warrant was invalid because the plaintiffs had not been served with a Notice informing them of their rights as required by the Crimes Act (Cth) 1914.

7. The video taken of the execution of the search warrant shows that the Notice was served. In any event there was no such allegation in the Third Further Amended Statement of Claim.

8. In his written submissions, counsel for the plaintiffs conceded that his earlier submission that the search warrant was invalid was not pressed.

Liability of the AFP for actions of the NSW Police

9. On Day 5 (being the last day on which evidence was called) counsel for the plaintiffs indicated that the plaintiffs would submit that the AFP was vicariously liable for the actions of the NSW Police officers and/or the NSW Police officers were the agents of the AFP relying on the evidence of Federal Agent Sandon, an officer of the AFP. He said in cross examination:

“Q. Was the execution and planning of the execution of this particular warrant the sole responsibility of the nominated Australian Federal Police executive executing officer?

A. Sorry, there was two questions there. Can you rephrase?

Q. Was the execution of this particular search warrant the sole responsibility of the nominated Australian Federal Police executing officer?

A. The execution? Yes, it was for the warrant holder, yes, that's correct.

Q. Was the Australian Federal Police executing officer, at all times, responsible for this particular search warrant's execution? Seizure of evidential items, and control of the warranted premises?

A. Yes.”

10. I will not permit the plaintiffs to submit that the AFP is responsible for the acts of NSW Police officers for the following reasons.

11. The issues of vicarious liability and/or agency are not pleaded. I accept the submission made by counsel for the AFP that paragraphs 1 and 1A are to the contrary – they expressly plead that each entity is liable for its own officers. There was no application to amend the Third Further Amended Statement of Claim.

12. The issues are also not mentioned in the plaintiffs’ Statement of Issues which was prepared and filed while the hearing was proceeding in contravention of the Order made on 30 November 2015 to serve it on the other parties at least three days prior to the hearing commencing.

13. After the evidence had been completed counsel were given two days to prepare written submissions – the only paragraph in the plaintiffs’ submissions which might be relevant is the following – “3.   The warrant was issued by the Commonwealth of Australia who is responsible for its execution and manner of execution according to witness Sandon.”

14. This additional ground was developed during final addresses. Counsel for the plaintiffs was of the view that it should be allowed because it arose from the evidence of Federal Agent Sandon. I do not accept this submission fairly reflects what occurred on Day 5.

15. Counsel for the AFP, on three occasions, objected to counsel for the plaintiffs asking any question which was intended to show that the AFP was responsible for the actions of NSW police because it had not been pleaded. On a number of occasions I invited counsel for the plaintiffs to show me where it was pleaded. He did not. I then made a ruling in the following terms:

“It's not pleaded, and unless you can say more to me than it doesn't have to be pleaded, unless you can persuade me that it doesn't have to be pleaded for some reason that I am not aware of, then it's not something that can be raised on day 5.”

16. Counsel for the plaintiffs then indicated a different basis on which he wanted to ask questions. He had shown Federal Agent Sandon a document which counsel described as a guideline.

“EVATT: I want to cross examine this witness on what he understood to be the procedures and the responsibilities for a Commonwealth search warrant. I'm either allowed to ask those questions or I'm not.

HER HONOUR: I'm trying to link them to what your case is. I'm trying to find out from you what conduct you're going to rely on as establishing a breach of these guidelines because I want to be satisfied that there will be evidence of that being the conduct of the Federal Police Officers.

EVATT: Your Honour, I'm entitled to ask him in cross examination and then rely on his answers in support of my case.

HER HONOUR: I'm not getting anywhere in terms of an explanation as to why you're asking these questions and what evidence it relates to.

EVATT: I submit it's a legitimate question to ask him.

HER HONOUR: I'm just going to have to deal with it question by question, Mr Staehli.”

17. It then turned out that the guideline which counsel for the plaintiffs had given to the witness and had been printed out from the internet on 27 November 2016, was irrelevant to the search warrant which is the subject of these proceedings.

18. Counsel for the plaintiffs continued asking questions including the questions which he says show that the AFP is liable for the acts of NSW Police officers.

19. I had decided (as set out above) that I would not permit the plaintiffs to raise the issues of vicarious liability and/or agency before that evidence was led. I allowed the questions because I understood from counsel for the plaintiffs that the evidence would go to a different issue. He now says that once the evidence is in it is in for all purposes. I find that submission remarkable in circumstances where I had already ruled on the issue.

Legal framework

20. S3E(1) of the Crimes Act (Cth) 1914 provides that a warrant may be issued to search premises if there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises. A warrant was issued on 17 September 2014 to a Federal Police Officer, Robert William Crane which he signed over to Adam Sandon pursuant to the provisions in the Act.

21. S3F then sets out the matters which are authorised by a search warrant. This includes entry to the premises and the power to search the premises for the kinds of evidential material specified in the warrant and evidential material in relation to an offence to which the warrant relates. In this case the specified offences were:

1. That Mr Alqudsi had engaged in preparations for incursions into foreign states for the purpose of engaging in hostile activities contrary to s 7(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act1978.

2. That Mr Alqudsi had engaged in other acts done in preparation for, or planning, terrorist acts contrary to s 101.6 of the Criminal Code(Cth).

22. S 3G (b) then relevantly provides that in executing a warrant the executing officer, or a person who is a constable and who is assisting in executing the warrant may use such force against persons and things as is necessary and reasonable in the circumstances.

23. Both the AFP and the NSW Police rely on s3G and say they were entitled to use necessary and reasonable force to execute the search warrant. This included securing the premises to ensure the premises would be safe for those executing the warrant to enter. That entitled NSW Police to detain those who would not submit to their authority and to do so until such time the premises were clear of any risk and the occupiers had been searched or deemed not to be a risk.

24. NSW Police also rely on s230 of the Law Enforcement (Powers and Responsibilities)Act 2002 which provides:

“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.”

25. With the greatest of respect to counsel for the plaintiffs, he did not engage with the relevant legal principles. The gist of his submissions was however that the police used more force than was necessary and reasonable in the circumstances.

26. I can only assume counsel for the plaintiffs therefore agrees with the applicable legal framework which I have set out above and requires each of the two defendants to show that they did not use more force than was necessary and reasonable in the circumstances.

Findings

27. I find the following:

1. On 18 September 2014, a number of search warrants were simultaneously executed throughout New South Wales in a joint operation between the NSW Police Force and the AFP. The search warrants were terrorism related.

2. Officers from both the NSW Police Force and the AFP executed the search warrant at the home occupied by the plaintiffs pursuant to s 3G of the Crimes Act (Com) 1914.

3. Police officers attended a briefing before they arrived at the house.

4. Seven NSW Police officers were tasked with entering and securing the premises. They were members of the Regional Enforcement Squad. They were all wearing navy police overalls with "Police" written on them and an emblem on the sleeve, a balaclava, a ballistic (bullet-proof) helmet, goggles, and a ballistic vest. They had their normal appointments - a Glock pistol, an extendable baton, a torch, capsicum spray and handcuffs.

5. While NSW Police were securing the premises, all AFP officers waited outside the house.

6. When the AFP had been told by NSW Police that the premises were secure, the AFP officers entered the house. At that time the four plaintiffs were seated in the lounge room and none of them were handcuffed.

7. The actions of the NSW Police were not videoed. The search by AFP officers was videoed.

8. The execution of the search warrant commenced around 4.45 a.m. and concluded around 2.30 p.m.

9. Several witnesses described it as a small house. The front door opens into a lounge room to the right. Walking straight ahead, there is a hallway. There is a door to the right from the hallway leading into a kitchen/dining area. Turning left at the end of the hallway, there is a second short hallway. There are three doors in that second hallway. The one on the left leads into to the main bedroom which was used by the first and second plaintiffs. The door straight ahead leads into the second bedroom occupied by the two sons. The door to the right leads into the bathroom.

28. I accept the evidence of all of the police officers as to what occurred as they entered the house. The team of seven NSW Police officers lined up at the front door. Senior Constable Azzi knocked loudly on the front door and called out “Police. Search Warrant" loudly a number of times. There was no answer. Sergeant Metcalf tapped Senior Constable Young on the shoulder, which was a direction to hit the door with a ram. He did so and another officer used a halligan which is a specialised tool to open the door of a house. The door was broken open and the seven NSW Police officers entered the house one after the other.

Claims against the AFP

29. As I have said, the AFP entered the house after they had been told by NSW Police that the premises were secure. At that time the four plaintiffs were seated in the lounge room and none of them were handcuffed.

30. The effect of my findings is that there were no AFP officers in the house when the plaintiffs claim that the acts particularised in paragraph 7 of the Third Further Amended Statement of Claim occurred.

31. The remaining allegations against the AFP are:

1. They impeded the liberty of the plaintiffs by handcuffing and restraining them from moving freely and by keeping them under strict and constant control (paragraph 8 of the Third Further Amended Statement of Claim).

2. They intimidated the plaintiffs by aggressively calling the two sons terrorists, by aggressively calling Ms Elzahed a bitch and by beating and assaulting them, wearing balaclavas and carrying firearms and weapons and their general conduct in handling and by bullying and frightening them (paragraph 9 of the Third Further Amended Statement of Claim).

32. I asked counsel for the plaintiffs to explain what acts of the AFP were relied on in relation to these claims. He said:

1. Ms Elzahed was arrested and imprisoned when she was refused access to the toilet. The evidence establishes that this occurred before the bathroom had been searched.

2. All four plaintiffs were restrained from moving freely around, they were confined to the lounge room and they were kept under strict supervision in the house.

3. Counsel for the plaintiffs was “not too sure” whether there had been any evidence concerning the sons being called terrorists and later thought it may have been the evidence of the older son. Counsel for the NSW Police located one reference in the transcript where Mr Alqudsi said that while he was handcuffed he saw that his step- sons were handcuffed, complained to the officers escorting him to the lounge room and an officer replied “They are not young. They are terrorists”. The evidence establishes that, at that time, all the AFP officers were outside the house. This accordingly cannot be a claim against the AFP.

The only other reference to terrorists is when Mr Alqudsi used the word himself (as captured on the search warrant video) when he said, after reporting that Ms Elzahed had been hit in the ear, “She’s an Arab so she’s a terrorist ok.”

4. The AFP assaulted the plaintiffs by intimidating them and keeping them in the one room.

5. The reference to the AFP’s “general conduct in handling and by bullying and frightening them” also referred to intimidation of the plaintiffs in keeping them in the one room.

33. In relation to the matters pleaded in paragraphs 8 and 9 I find:

1. There is no evidence of any AFP officer handcuffing any of the plaintiffs.

2. There is no evidence of any AFP officer calling any of the plaintiffs terrorists.

3. Counsel for the plaintiffs did not identify any evidence where Ms Elzahed was called a bitch. I decline to find that the plaintiffs have shown it occurred.

4. There is no evidence of the AFP wearing balaclavas or carrying firearms or weapons.

5. The evidence establishes that the four plaintiffs were not confined to the lounge room and they were not kept under strict supervision in the house.

In the video, one of the first things Federal Agent Sandon says, while the four plaintiffs are sitting around him in the lounge room, is “Basically we'll be searching room by room. You're entitled to be present, as long as you don't interfere with the search, so matter for yourself. You don't need to be present".

Mr Alqudsi did initially say that, after the handcuffs came off, they were told to stay in the lounge room. On cross examination, he added that he had been allowed to go into the main bedroom to perform the morning prayers, but had been told to stay in the lounge room after the prayers. They had then stayed in the lounge room until they were told to go to the kitchen later on in the afternoon. He then conceded that he was aware that at some times family members had moved around the house, that when he had asked to use the bathroom the officers said he could after they had cleared the room to make sure it was safe and that he may have moved around the house during the search.

In relation to the words spoken by Federal Agent Sandon, Mr Alqudsi said he did not recall the words being said but he did not dispute that it had occurred.

The older son agreed that he had seen his mother follow the officers around the house as they were searching room to room and that he had also walked around the house. In the search warrant video AFP officers are shown searching the main bedroom. The older son agreed that both he and his mother had been present.

Ms Elzahed and the older son drove away from the house at around 9 am while the search warrant was still being executed.

Senior Constable Young said that after the paperwork had been served, the plaintiffs were free to leave. After the premises had been secured he was sent to the front porch in case anyone tried to enter the premises. He stayed there until the execution of the search warrant had been completed. While he was there one of the sons went in and out of the house and sat down on the porch to speak to the investigating officers.

The evidence does show that the plaintiffs were only permitted to enter a room after it had been searched or, if it had not been searched, they were supervised.

Federal Agent Sandon said that these restrictions were in place for two reasons – firstly, to ensure that there was nothing in the room that could injure an officer and secondly, to prevent the loss or destruction of evidence. This is consistent with the evidence of Mr Alqudsi who said the officers would not let him go into a room until it had been searched.

Counsel for the AFP relied on the decision in Martin v The Queen [2015] ACTCA 38 at [23] where Refshauge, Burns and Ross JJ said at [65], in relation to the execution of a search warrant issued under Division 10.3 of the Crimes Act1900 (ACT) (which is relevantly in the same terms as 3G):

“As a matter of law, the police conducting the search of the residence were entitled to restrict the movement of the appellant within the premises while they were conducting the search. The provisions of s 196 of the Crimes Act 1900 (ACT) authorise a person executing a search warrant to use such force against “persons and things that is necessary and reasonable in the circumstances”. An occupier of premises, such as the appellant, who is present at the time premises are being searched, is entitled to observe the search being conducted, but this does not prevent two or more areas of the premises being searched at the same time: s203 of the Crimes Act 1900 (ACT). The right to use reasonable and necessary force against persons for the purpose of executing a search warrant must extend to restricting the movement of occupants or others present about the premises, otherwise the efficacy of the warrant will be greatly diminished. If an occupant wants, they may be present in one part of the premises while police are searching that part, but police executing the warrant may lawfully restrict the occupant from moving to any other area of the premises where a search is not, at that time, being conducted. If the occupant chooses not to observe the search, but wishes to stay in the premises, police executing the warrant may restrict their movements within the premises while the search is being conducted.”

Counsel for the plaintiffs did not suggest that the principle did not apply, nor did he suggest the decision could be distinguished.

I am satisfied that the AFP were entitled to restrict the movements of the plaintiffs within the premises to prohibit them from entering a room until after it had been searched unless they were supervised.

34. I would add that, despite some complaints about the AFP leaving a mess, Mr Alqudsi and the older son did not have any other complaint about the manner in which the search was conducted by the AFP. Mr Alqudsi accepted that the search had been conducted carefully and respectfully. The older son agreed that during the search the officers were polite, they were very courteous to the whole family and very careful in the manner in which they searched the premises.

35. I find that the AFP has shown that its officers searched the premises using force that was necessary and reasonable in the circumstances.

36. Accordingly the claims by all four plaintiffs against the AFP must fail.

Claims against NSW Police

37. All of the four plaintiffs were in their respective bedrooms when the NSW Police officers arrived at the premises.

Claim by Ms Elzahed in para 7 of Third Further Amended Statement of Claim

38. Ms Elzahed is a religious Muslim and she refused to give evidence in open court with her face uncovered. She also refused to give evidence from a remote room with her face uncovered (so that she could choose not to see who was watching her give evidence) with the court room closed so that only lawyers involved in the proceedings would be in the court room.

39. I refused to permit her to give evidence with her face covered. Accordingly there is no direct evidence from Ms Elzahed.

40. It is common ground that Ms Elzahed was in bed when the police entered the main bedroom. Mr Alqudsi was not in the main bedroom while Ms Elzahed engaged with the NSW Police.

41. As I have said, Ms Elzahed claims in the Third Further Amended Statement of Claim that she was punched in the ear, eye and head, was held and moved in a brutal manner, was handcuffed in an aggressive and hurtful manner, her ear bled, she was mentally and physically abused, she was screamed at and was humiliated and suffered bodily and mental pain.

42. There was evidence from Mr Alqudsi and the older son in relation to what they had been told by Ms Elzahed. There is also a complaint made by Ms Elzahed which is captured in the video footage.

43. Mr Alqudsi is in custody because he has been convicted of foreign incursion offences. He gave evidence by Audio Visual Link. He said that, although he was not in the main bedroom and did not see anything, he heard very, very loud and very disturbing screams from his wife. She later told him that an officer had tried to take her blankets off and when she held on tight that person punched her a few times on the side of the ear. Mr Alqudsi said that after he had been taken into the lounge room his wife was brought in and she said, "They hit me. They hit me".

44. On the search warrant video Mr Alqudsi is heard to say to the AFP "She was just saying which dog hit her in the ear. The woman is very sick. There's no reason for you to hit her in the ear … she got assaulted mate, very severely.”

45. The older son said he woke to his mother screaming. He did not go to her room or see her interaction with the police. He said that his mother had been in pain and kept referring to her face and how she had been punched. In cross examination the older son said that his mother had told him that she had been hit between her ear and her eye around the cheek bone.

46. The older son translated words spoken in Arabic by his mother on the video – she had said that they had wanted to see her naked, a male police officer had removed the bed cover and she held it so he would not remove it. She said "He punched me, the dog. That's it".

47. Three of the NSW Police officers who went into the main bedroom while Ms Elzahed was in bed gave evidence. Their evidence can be summarised as follows.

48. Senior Constable Fuller had attended a briefing before arriving at the house and had been told that the occupants had links to terrorism. He had a raised concern that someone in the house could be armed with a weapon.

49. Senior Constable Fuller went to the door of the main bedroom and saw somebody lying in a bed. The lights were off. He approached, having concerns for what was in and around the bed. He asked the person in the bed to show their hands and the person did not do so. He took hold of the quilt cover and removed it until he could see their hands. He realised it was a female. She began yelling extremely loudly and flailing her arms and legs about. Senior Constable Fuller unsuccessfully attempted to grab her flailing arms. He did so to restrain her from hurting him or others. He was afraid he might get hurt. He formed the view that there was nothing dangerous in or around her. He was then sent to help police in another room.

50. Senior Constable Pereira had attended a briefing before arriving at the house where he had been told that they were going to conduct a search warrant in relation to an ongoing terrorism investigation.

51. When Senior Constable Pereira entered the main bedroom the lights were off and he immediately saw a person lying on the bed. As he entered, the person starting yelling and screaming, and he realised that it was a female. He noticed, as he entered the room, that she was trying to hide something underneath the blanket. He thought it may have been a weapon, so he attempted to remove the blanket but she held onto it very tightly. He grabbed her by the arms and attempted to break her grip as she continued to yell and scream. There was a bit of a struggle over the blanket. As she was yelling and screaming, she was spitting. Senior Constable Pereira did not want to be spat on, so he held her head down to the side by placing his right hand on the left side of her face so that her face was facing away from him. He denied it was a punch and said his hand was around her ear not her cheek.

52. Senior Constable Pereira and Senior Constable Fuller had a short struggle with Ms Elzahed over the blanket and she was screaming. Once they gained control, they removed the blanket and realised there were no weapons underneath the blanket. At that point an Arabic speaking officer took over.

53. Constable Higgins, a female police officer, was then sent in to the main bedroom. She had also attended a briefing before arriving at the house and had been told that it was in relation to terrorism. She said that they were unsure of what weapons may be at the location and that they were all very nervous and cautious.

54. Constable Higgins was sent in to the main bedroom to supervise Ms Elzahed while she got dressed. When Constable Higgins entered the room Ms Elzahed was in bed covered by a blanket. The other police officers left the room and she closed the bedroom door three quarters of the way. She said to Ms Elzahed “You’re right to get dressed.” She watched Ms Elzahed get out of bed with a nightgown on. Ms Elzahed was yelling mostly in Arabic and saying the word “pigs’. She was making a spitting motion towards the floor. Constable Higgins patted her down. Ms Elzahed then handed the police officer some black robes which Constable Higgins patted down quickly and then handed to her. She put them on. Constable Higgins did the same with Ms Elzahed’s head dress. Then Constable Higgins walked Ms Elzahed out into the lounge room and sat her down.

55. Constable Higgins said she felt fear, Ms Elzahed was a stranger, she could possibly have links to terrorism, she had been verbally aggressive for the majority of the time, she had been throwing her hands up in the air, and been spitting towards the floor.

56. I decline to find that Ms Elzahed was:

1. Punched in the ear, eye or head so that her ear bled. There is no evidence of Ms Elzahed’s ear bleeding.

2. Handcuffed in an aggressive and hurtful manner. There is no evidence that Ms Elzahed was handcuffed.

3. Mentally and physically abused, screamed at and humiliated. There is no evidence that anyone abused or screamed at Ms Elzahed.

57. I accept the evidence of the three police officers as to what occurred for the following reasons:

1. There is no direct evidence from Ms Elzahed or any other witness who was present (other than the police officers) as to what occurred in the main bedroom.

2. The statements by Mr Alqudsi and the older son as to what Ms Elzahed told them is hearsay. In R v Nemeth [2002] NSWCCA 281 Justice RS Hulme summarises the deficiencies of hearsay evidence as set out in ALRC 26 – namely, the potential compounding of weakness of perception, memory, narration skills and sincerity when evidence of the fact is given second hand, the statement to the witness is not testable by cross-examination, the statement was not made in a court environment and thus potentially more susceptible to pressures which might result in a false account and the statement was not made on oath or affirmation in the solemn context of proceedings in court.

3. The evidence from the two plaintiffs who gave evidence, the claim in the pleadings and the complaint on the search warrant video cannot be reconciled. Was there one punch or more? Was it on the ear or the cheekbone?

4. Ms Elzahed and one of the sons left the house at 9 am. Mr Alqudsi said his wife had to go to the doctor, she was in a lot of pain and that after many hours, she was allowed to go and a son went with her. There are no medical reports or medical notes in evidence and no explanation has been advanced for that failure despite the issue having been raised during the hearing. I infer that the reports and/or notes would not have assisted Ms Elzahed.

5. Neither Mr Alqudsi nor the older son gave any reliable evidence of having seen any injury to the cheek or ear at any time. The only evidence before me was when Mr Alqudsi said in evidence in chief that when his wife was brought into the lounge room her face was red. On cross examination he agreed she had been wearing her niqab, only her eyes were visible and he could not have seen whether her face was red.

58. I find that each of the police officers had formed a genuine suspicion that the occupants of the house may have been involved in acts of terrorism. Further, I am satisfied that there were reasonable grounds for that suspicion based on what they had been told at the briefing. I find they were using reasonable force in their interactions with her in the main bedroom including when they tried to and did remove the blanket to check whether Ms Elzahed was trying to hide something which may have been a weapon after she had failed to comply with a direction to show her hands, I find that the police officers were using reasonable force when they tried to stop her from flailing her arms in order to restrain her from hurting others and I find that Senior Constable Pereira was using reasonable and necessary force when he moved her head to the side to avoid her spitting on him.

Claim by Mr Alqudsi

59. Mr Alqudsi has settled his proceedings against NSW Police.

Claim by younger son in para 7 of Third Further Amended Statement of Claim

60. The younger son is on remand for terrorism charges. The solicitor for the plaintiffs gave evidence. She had spoken to the younger son on the day that this hearing commenced. He instructed her that he did not wish to give evidence in these proceedings.

61. The sons shared the second bedroom in which there was a bunk bed. They were both in the second bedroom when the police entered the house. There is evidence from the older son and three police officers as to what occurred in the room.

62. The older son said, in relation to his brother:

1. After entering the bedroom, one of the officers went over to the bed and he saw the officer drag his brother down from the top bunk and he heard a bang.

2. After he had been restrained by the officers, he looked to his left to check on his brother because he heard him gasping. On cross examination he said that he heard his brother impacting with the glass pane of the window and the sound made him turn and he saw his brother’s face on the window with the police holding his hands behind his back. He had not seen his brother's head being forced onto the window.

3. While he was on the ground, he saw a police officer put his leg around his brother’s chest and handcuff him.

4. During the day, his brother kept mentioning how tight the handcuffs had been and how his wrists were hurting.

63. Two police officers attended to each son. However each of the police officers who gave evidence said that at the time they had focused on the son they were trying to secure and did not pay attention to what was happening with the other son. In addition none of them knew which son they were trying to restrain – they said the two sons looked alike.

64. I will accordingly discuss their evidence and set out my findings in relation to their evidence when I consider the claim made by the older son.

65. I would at this stage, however, make the following observations:

1. The police officers say that they dragged both of the sons from the bunk bed, although they say the sons were both on the bottom, not the top bunk.

2. The older son concedes he did not see any police officer push his brother into the window or the window pane. There is no other evidence of this having occurred. It is also not mentioned in the Third Further Amended Statement of Claim.

3. The police officers agree that they handcuffed both brothers while they were on the ground.

4. The younger son has asserted in the Third Further Amended Statement of Claim that he suffered bodily and mental pain on seeing and witnessing the assault and battery of his mother. There is no evidence of the younger son witnessing any part of the interaction between Ms Elzahed and NSW Police officers in the main bedroom.

Claim by older son in para 7 of Third Further Amended Statement of Claim

66. The older son is now 17. He said he was asleep when he woke to hear his mother screaming. He got up to see what was happening and when he reached his bedroom door he saw three people wearing balaclavas with flashlights running at him at full speed. He did not know whether they were thieves or coming to murder them so he shut the bedroom door, held it for about five seconds and then the three of them burst in and tackled him to the ground in a very aggressive manner. When he was asked whether they had been shouting in a loud voice "Police. Search warrant" he said he could not remember exactly what they had been shouting. His brother was still in the top bunk bed.

67. Two of the police officers frisked him, checking his pants, while one of them pushed his knee into his stomach very hard, so that it was painful. After they finished checking him, they laid him on his stomach and handcuffed him. Then they grabbed him and pushed his head into a closed cupboard which hurt his face and body.

68. When he tried to check on his brother, the officer who had handcuffed him and was standing behind him said "Don't look. Turn around". His movement was restricted. He was told "Keep facing the cupboard" which he was leaning on.

69. The older son was walked to the lounge room where he sat down. He was asked "Are you going to be silly, or can I remove the handcuffs". He said "No. I'm not going to be silly". The handcuffs were then removed.

66. As I have said, there was evidence from three police officers in relation to the events in the second bedroom. Their evidence can be summarised as follows.

67. Senior Constable Young attended a briefing just before executing the search warrant. He said every search warrant has a risk, but in this case there was a risk because they were looking for possible terrorist related evidence. Because of the possible risk, they wore a balaclava, a helmet, goggles and a bullet proof vest.

68. After he entered the house and turned into the second hallway, he saw Senior Constable Timson at the door to the second bedroom. The door was slightly open and he went to help Senior Constable Timson hold the door open. He felt pressure on the door because someone was pushing the door from the other side. As the police officers forced the door open, he shouted "Police. Search warrant".

69. Senior Constable Young said the conduct of the sons was an act of aggression and raised his concern that they could be destroying evidence or seeking to create a siege situation.

70. As the door opened, he saw two teenage males on the other side. They ran over to the bunk bed and jumped onto the bottom mattress. He shouted to both sons to stand up and get on the floor. They did not comply. He grabbed the arm of one of the sons, although he had some difficulty because the son was moving. The son tried to get away from his hold, by putting his hands up to try and wrestle his way out of Senior Constable Young’s grip. Senior Constable Young said he moved the son from the bottom bunk onto the ground using his hands while the son continued to resist him. Senior Constable Young said if he had let him stand and negotiate there was a possibility he would grab a weapon and this was the reason for putting him on the floor for a short time to handcuff him.

71. The son was lying face down on the floor with one arm under his body. Senior Constable Young instructed the son to “Show me your hands” but he did not comply with the direction. He needed the help of Senior Constable Fuller to handcuff the son because the son was still resisting by holding his hand under his stomach. When both of the son’s hands were behind his back, he was handcuffed. Senior Constable Young searched the son for weapons and then helped him up and escorted him to the lounge room. He checked the cushions on the seat for weapons and then sat the son down. He then removed the handcuffs. He estimated that the son had handcuffs on for about two minutes.

72. While he was securing the son Senior Constable Young considered him to be a risk to himself and the other police. He thought he could have any kind of weapon. He chose, for his safety, to handcuff the son with his hands behind his back. He intended to control the son so he, the son, could calm down.

73. Senior Constable Fuller attended a briefing before executing the warrant. He had been told that the occupants had links to terrorism. He had a raised concern that someone could be armed with a weapon.

74. Senior Constable Fuller saw two other police officers in the second bedroom. They were wrestling with two young people on the ground. One son was lying stomach down on the ground, one of his arms was underneath him and he would not free his arm to allow the officer to grab it. Senior Constable Fuller helped pull the arm out and then the other officer handcuffed him to the rear. Within 30 seconds, Senior Constable Fuller was advised that the house was clear, they stood the people up and they were escorted out into the lounge area.

75. Senior Constable Timson had attended a briefing before arriving at the premises. He had been told that the search warrant was in relation to terrorism related offences. He had a concern that the occupants had weapons, explosive and/or knives. He presumed the worst.

76. After he entered the house Senior Constable Timson heard a police officer yelling "Close door with me" to indicate that he needed an officer with him to enter the second bedroom. He went in behind that police officer. As he entered the room, he called out "Police. Search warrant" and heard Senior Constable Young call out the same words. He saw two male teenagers in the centre of the room. They ran and jumped into the bottom bunk. He called out "Police. Search warrant" again and then "Get down on the ground now". They continued backing away from the police officers. It was quite hard to see because the lights were off and Senior Constable Timson had concerns because they were not complying with his direction to get to the ground but instead were moving towards the back of the bed. He did not know what their intentions were, they were moving towards the pillows and he did not know whether they were doing so to be able to grab something, possibly a weapon. He leaned forward and grabbed one by the forearm. He could feel him pulling back, so Senior Constable Timson pulled the son by the forearm towards himself and directed him chest first to the ground. While he was doing so, the son was continuing to pull backwards.

77. When the son’s chest hit the ground, Senior Constable Timson put one of his knees on the floor and leaned over the son. He still had hold of one arm and put it towards the son’s back. He said to the son "Put your arms behind your back". He did not comply, keeping the other arm under his chest as he yelled, thrashed his legs about and squirmed. Senior Constable Timson said it took some effort to keep him on the ground and control him, it was quite dark and difficult because he still had the torch in his hand. Another officer came in and eventually he was able to get the son’s other arm behind his back. Senior Constable Timson placed handcuffs around the son’s wrists with the assistance of the other officer.

78. All three police officers denied having called anyone a terrorist and denied having heard anyone else do so. They all denied slamming a son into a window, windowpane or wardrobe or see another police officer do it.

79. I prefer the evidence of Senior Constable Young, Senior Constable Fuller and Senior Constable Timson to the evidence of the older son for the following reasons:

1. I do not accept the evidence of the older son where he said he did not know for some time that the men wearing balaclavas and dressed in black were police officers. All five NSW police officers who gave evidence said they had called out “Police. Search warrant” loudly on many occasions both before and after entering the house. I accept that evidence. It is a small house. This finding impacts on the reliability of the whole of his evidence.

2. Apart from his oral evidence, there is no other evidence of the older son having sustained any injury, such as a medical report. He asserts in the Third Further Amended Statement of Claim (filed in Court after he had given evidence) that he still has marks on his stomach. This was not the subject of any evidence.

3. When the search commenced he did not report to any officer that he had been slammed into a cupboard or injured in any way.

4. He agreed that on the video he did not appear to have suffered any injury. He said that this was because he was trying to keep his composure in front of his mother despite having pain in the face, wrist and stomach. I do not accept this explanation.

5. His evidence is contradicted by the evidence of the three NSW Police officers.

6. His younger brother was in the room. He did not give evidence. His reason for not giving evidence was not explained. At the very least he could have given evidence as to where he was when the police entered. I infer his evidence would not have assisted the older brother.

84. In relation to paragraph 7 of the Third Further Amended Statement of Claim I decline to find that the older son:

1. Was slammed into a cupboard. It is denied by the police officers.

2. Still has marks on his stomach. There is no evidence before me upon which I could make such a finding.

85. I find that each of the police officers had formed a genuine suspicion that the occupants of the house may have been involved in acts of terrorism and may have weapons. Further I am satisfied that there were reasonable grounds for that suspicion based on what they had been told at the briefing. I find they were using reasonable force in their interactions with the older son in the second bedroom including when they removed the older son from the bottom bunk, moved him on to the floor and handcuffed him. I take into account that the two sons tried to stop them from entering the second bedroom, the older son did not comply with their reasonable directions and he continued to resist the police until he was handcuffed.

86. In relation to the younger son I have already found that I prefer the evidence of Senior Constable Young, Senior Constable Fuller and Senior Constable Timson to the evidence of the older son.

87. In respect of paragraph 7 of the Third Further Amended Statement of Claim, as it relates to the younger son, I decline to find that the younger son suffered bodily and mental pain on seeing and witnessing the assault and battery of his mother. As I have already observed and now find - there is no evidence of the younger son witnessing any part of the interaction between Ms Elzahed and NSW Police officers in the main bedroom.

88. Although it is not pleaded I add that I decline to find that any NSW Police officer pushed the younger son into the window or the window pane. The older son did not see it occur and the younger son did not give evidence. It is denied by the police officers.

89. I have already found that each of the police officers had formed a genuine suspicion that the occupants of the house may have been involved in acts of terrorism and may have weapons. Further, I am satisfied that there were reasonable grounds for that suspicion based on what they had been told at the briefing. I find they were using reasonable force in their interactions with the younger son in the second bedroom including when they removed the younger son from the bottom bunk, moved him on to the floor and handcuffed him. I take into account that the younger son tried to stop them from entering the second bedroom, did not comply with their reasonable directions and continued to resist the police until he was handcuffed.

Paras 8 and 9 of the Third Further Amended Statement of Claim

90. These paragraphs of the Third Further Amended Statement of Claim raise the following issues:

1. That the officers intimidated the four plaintiffs by aggressively calling the sons terrorists. I have preferred the evidence of the police officers who have denied calling the sons terrorists or having heard anyone else do so. I decline to make this finding.

2. That the officers intimidated the four plaintiffs by aggressively calling Ms Elzahed a bitch. I have already found that the plaintiffs have not shown that this occurred.

3. That the officers intimidated the four plaintiffs by beating and assaulting them, wearing balaclavas and carrying firearms and weapons and their general conduct in handling and by bullying and frightening them. This relates to the conduct of the NSW police officers in the two bedrooms in respect of which I have already made findings.

4. That the four plaintiffs were wrongfully arrested and imprisoned by the officers who impeded their liberty by firstly handcuffing them and secondly restraining them from moving freely and keeping them under strict and constant control.

I have already made findings in relation to the issue in respect of the conduct of the AFP.

There is no separate tort of wrongful arrest. Unfortunately counsel for the plaintiffs did not assist me with any legal submission in relation to this issue. I accept the submission made by counsel for NSW Police who relied on State of New South Wales v Williamson [2011] NSWCA 183 at [24].

“Cause of Action for “Unlawful Arrest?

One minor matter, not affecting questions of construction of the legislation, is that the judge, and to some extent the submissions on appeal, spoke as though unlawful arrest was itself a tort. That is not strictly correct. A lawful arrest can provide the legal justification for what would otherwise be the tort of false imprisonment. If reasonable force is used in the course of effecting a lawful arrest, that can provide a legal justification for what would otherwise be an assault or battery. However, unlawful arrest is not a tort separate to assault, battery and false imprisonment.”

The NSW Police concede that while the premises were being secured, restraints were placed on each of Ms Elzahed and the two sons.

However, it was submitted, that this was permitted by the legislation as they were using reasonable force. I accept that this is the relevant test to be applied.

I have made such a finding and, accordingly, those plaintiffs have no cause of action against the NSW Police because of the restraints on their liberty up until the time she was taken to the lounge (Ms Elzahed) or the handcuffs were removed (the sons) were, at all times, reasonable in the circumstances.

91. For these Reasons the claims by Ms Elzahed and each of the two sons against the NSW Police must fail.

Matters raised by counsel for the plaintiffs

92. In written submissions, the plaintiffs raised the following issues:

1. In late 2013, an earlier Commonwealth search warrant had been executed at the home of the plaintiffs which was carried out in an orderly manner without violence. The police knocked on the door and were let in to do their search. The circumstances of the search of 18 September 2014 were, in effect, the exact opposite.

I accept the submission made by counsel for the NSW Police. The circumstances of that earlier search are not known. It is of no relevance to these proceedings.

2. Counsel for the plaintiffs submitted that the police were told at a briefing that the plaintiffs were terrorists, dangerous and possibly armed with unknown weapons but that no explanation had been offered to the Court as to why the police were briefed in this manner which led to the ultimate excessive violence.

Counsel for the plaintiffs did not explain on what legal basis he asserted that either of the defendants was required to adduce this evidence.

3. Counsel for the plaintiffs submitted that there was nothing about the house or the occupants to explain why the warrant was executed in such a violent manner at 4.30 a.m. instead of in daylight as on the previous occasion.

However an explanation, if it is required, was given in answer to a question put by counsel for the plaintiffs to Mr Sandon.

“Q. It wasn't necessary for you to go to the house at 4.30am, was it?

A. Yes, it was.

Q. Why?

A. For the execution of multiple search warrants across multiple addresses, and to ensure that people were at home at all those addresses.”

This explanation was, in fact, referred to by counsel for the plaintiffs later in his submissions.

4. Counsel for the plaintiffs submitted that “as usual” there were no guns or weapons on the premises and the police had no reason to hold or wrestle with the plaintiffs.

It is common ground that the police did not find any weapons although a number of other items were seized. Counsel for the plaintiffs has not explained the relevance of the outcome of the execution of the search warrant to the matters to be determined by me.

5. Counsel for the plaintiffs submitted that “Constable Pereira said what every police officer says when giving evidence, that is to say that he saw the person (in this case the First Plaintiff) make some movement and then apprehended that person had a gun. Nothing was located to support such a view”.

I have accepted the evidence of Senior Constable Pereira as to why he acted in the way that he did.

6. Counsel for the plaintiffs referred to the evidence of Senior Constable Young who said he had seen the First Plaintiff’s face which must have been upsetting for her as seeing a woman’s face is not permitted under Muslim law.

Counsel for the plaintiffs confirmed that this submission related to the two male police officers who did enter the main bedroom while Ms Elzahed was in bed – these were Senior Constable Fuller and Senior Constable Pereira. There is no direct evidence that this upset Ms Elzahed although I accept that it is likely to have done so.

Counsel for the plaintiffs did not suggest that this submission was relevant to any cause of action pleaded.

7. Counsel for the plaintiffs submitted that while the two male police officers were in her bedroom the First Plaintiff never stopped screaming with fright.

The evidence does establish that Ms Elzahed was screaming. There is no evidence to the effect that she was screaming with fright.

8. Counsel for the plaintiff submitted that Ms Elzahed had complained on the search warrant video that she had been struck near the right cheek. I was not taken to any part of the search warrant video where this occurred.

On the search warrant video Mr Alqudsi refers to Ms Elzahed having been hit in the ear, not the right cheek.

The older son said that he interpreted a gesture made by his mother on the search warrant video as indicating that she had been hit on the face.

The explanation may be that Mr Evatt, on day four of the five days of evidence did say that he had not watched the search warrant video. Of course, the other counsel for the plaintiffs, Mr Foster, may have done so.

Counsel for the plaintiffs submitted that this evidence was confirmed by Constable Pereira who admitted forcefully touching her in that area. Senior Constable did not admit to touching Ms Elzahed forcefully.

9. Counsel for the plaintiffs submitted that “Why the police broke down the front door after only 10-15 seconds of demands outside the front door, then proceeded to impose their will over all four Plaintiffs so aggressively, demonstrates the police desire to secure all occupants as soon as possible, when there was no risk any of the occupants were dangerous to begin with. Accordingly the Plaintiffs must succeed in liability.”

This analysis was of no assistance.

Orders

1. Verdict for the first defendant against the first plaintiff.

2. Verdict for the second defendant against the first plaintiff.

3. Verdict for the first defendant against the second plaintiff.

4. Verdict for the first defendant against the third plaintiff.

5. Verdict for the second defendant against the third plaintiff.

6. Verdict for the first defendant against the fourth plaintiff.

7. Verdict for the second defendant against the fourth plaintiff.

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Decision last updated: 15 December 2016