Munro v State of NSW

[2019] NSWDC 13

District Court

New South Wales

Medium Neutral Citation:

Munro v State of NSW [2019] NSWDC 13

Hearing dates:

5, 6, 7 & 8 March 2018 (Last submissions 11 May 2018)

Date of orders:

15 February 2019

Decision date:

15 February 2019

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the amount of $38,206 including pre-judgment interest;

 

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

 

3. The exhibits may be returned;

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

Catchwords:

TORTS – intentional torts – claims of alleged wrongful arrest, false imprisonment, assault and battery – whether claims made out; DAMAGES – assessment of general compensatory damages, aggravated damages, exemplary damages, and interest

Legislation Cited:

Civil Liability Act 2002 (NSW), s 52, s 54, s 58,
Crown Proceedings Act 1988 (NSW), s 5
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(1), s 201, s 202, s 231
Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
Police Act 1990 (NSW), s 6

Cases Cited:

Christie v Leachinsky [1947] AC 573
Coyle v State of NSW [2006] NSWCA 95
George v Rockett (1990) 170 CLR 104; [1990] 170 CLR 104
Hage-Ali v State of NSW [2009] NSWDC 266
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3
McKinney v R [1991] 171 CLR 468
NSW v Radford [2010] NSWCA 276
Smith v State of NSW [2016] NSWDC 55
State of New South Wales v Smith [2017] NSWCA 194
State of NSW (NSW Police) v Nominal Defendant [2009] NSWCA 225
State of NSW v Abed [2014] NSWCA 419
State of NSW v Coleman [2000] NSWCA 183
State of NSW v Quirk [2012] NSWCA 216
State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208
State of NSW v Zreika [2012] NSWCA 37
Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88
Zavarinos v State of New South Wales [2004] NSWCA 320

Category:

Principal judgment

Parties:

Scott Brenden Edwin Munro (Plaintiff)
The State of New South Wales (Defendant)

Representation:

Counsel:
Mr D Toomey SC with Mr D Woodbury (Plaintiff)
Ms J Chapman (Defendant)

  Solicitors:
MJO Legal (Plaintiff)
McCabes (Defendant)

File Number(s):

2017/212260

Publication restriction:

A non-publication order remains in place with respect to the content of the evidence appearing between transcript reference T30.18 to T33.28

Judgment

Table of Contents

Nature of case	[1]
Non-publication order	[2]
Factual background	[3] – [14]
Issues	[15] – [16]
Concessions by defendant and claimed defences	[17] – [20]
Credibility and reliability of testimony	[21] – [56]
Ms Tayla Luscombe	[22] – [23]
Ms Regina Burke	[24]
The plaintiff	[25] – [35]
Senior Constable Nolan	[36] – [40]
Senior Constable Ward	[41] – [56]
Facts	[57] – [147]
(1) Plaintiff’s background circumstances	[58]
(2) Plaintiff’s relationship with Ms Luscombe	[59] – [65]
(3) Plaintiff’s domestic situation at time of arrest	[66] – [68]
(4) Pre-arrest contact between Ms Luscombe and police	[69] – [80]
(5) Pre-arrest communication to plaintiff by Constable Ward	[81] – [94]
(6) Pre-arrest events at the premises	[95] – [104]
(7) Arrest circumstances	[105] – [120]
(8) Transportation of plaintiff to Grafton Police Station	[121] – [125]
(9) Custody management	[126] – [129]
(10) Electronically police recorded interview with plaintiff	[130] – [142]
(11) Release of plaintiff from police custody	[143] – [147]
Relevant legislation	[148] – [154]
Issue 1 – Was the plaintiff lawfully arrested	[155] – [170]
Issue 2 – Satisfaction required by s 99(1)(b) of LEPRA	[171] – [182]
Issue 3 – Use of police baton and excessive force	[183] – [192]
Issue 4 – Detention after disclosure of falsity of allegations	[193] – [204]
Issue 5 – Assessment of damages	[205] – [206]
General compensatory damages	[207] – [209]
Aggravated damages	[210]
Exemplary damages	[211]
Interest on damages	[212] – [213]
Summary of damages assessment	[214]
Disposition	[215]
Costs	[216]
Orders	[217]

Nature of case

1. The plaintiff, Scott Munro, brings these proceedings against the defendant, the State of New South Wales, pursuant to s 5 of the Crown Proceedings Act 1988, and s 8 of the Law Reform (Vicarious Liability) Act1983 (NSW) in respect of the actions of two police officers, Senior Constable Darren Nolan, and then Constable, now Senior Constable, Lisa Ward, who arrested him, at about 10.50pm on Tuesday 17 November 2015, at his place of residence in South Grafton, NSW. The Law Enforcement (Powers and Responsibilities) Act2002 (NSW) (“LEPRA”), applies to these proceedings.

Non-publication order

2. On the first day of the hearing, and for the reasons identified at that time, in accordance with the public interest in the proper administration of justice, which in this case was considered to outweigh the public interest in ensuring open justice, a non-publication order was made with respect to the content of the evidence in the proceedings appearing between transcript reference T30.18 to T33.28. The evidence in that portion of the transcript has no bearing on the assessment of the credibility of the testimony of any witness, and no issue turns upon that portion of the record of the proceedings.

Factual background

3. Shortly after 10.00pm on Tuesday 17 November 2015, the police officers attended at the plaintiff’s premises in Spring Street, South Grafton, NSW. They wanted to speak to him to ascertain what, if anything, he wanted to say about allegations made earlier that day by his partner, Ms Tayla Luscombe, relating to a claimed incident of domestic violence where she had alleged that the plaintiff had assaulted her.

4. After the police officers had arrested the plaintiff, and whilst they were moving him to the police vehicle to take him to Grafton Police Station, Ms Luscombe told the police officers that she had falsely claimed the plaintiff had assaulted her. Despite Ms Luscombe’s revelation, the plaintiff remained under arrest, and was taken to Grafton Police Station where he was further detained.

5. The plaintiff claims his arrest by the police officers was peremptory, and unnecessary. He claims that in the period from about 10.50pm on Tuesday, 17 November 2015, when he was ultimately arrested, and until about 12.56am on 18 November 2015, when he was released from police custody, being for a little under 2 hours, the actions of the arresting officers comprised the intentional torts of wrongful arrest, false imprisonment, assault and battery.

6. The police officers each claimed that the circumstances of their attendance had escalated to a point where, without prior discussion, they had each independently made a decision to arrest the plaintiff, and where Senior Constable Ward later explained, she considered there had been a possible breach of the peace: T88.8; T124.45 – T125.12; T128.22; T188.8; T216.21; T219.39.

7. Shortly after the arrival of the police officers at the premises, and after a discussion with Ms Luscombe, a conversation took place between the police officers and the plaintiff. This occurred through a locked screen door, where the police officers remained outside the premises. In that discussion, Senior Constable Nolan informed the plaintiff that he was under arrest. Initially, in response, the plaintiff expressed a reluctance to unlock the screen door.

8. Ultimately, after a short delay, and after further conversation, the plaintiff submitted to the arrest by unlocking and opening the screen door. Both police officers then entered the premises. Senior Constable Nolan had earlier drawn his police baton, and had earlier threatened to use it to break into the premises.

9. In those events, the plaintiff was then immediately grabbed by Constable Ward, who handcuffed his right wrist, and pulled it behind his back. The plaintiff then stiffened his body in an apprehensive response to those events. Senior Constable Nolan then delivered what the plaintiff described as a “couple of beauties”, being blows to the left wrist with his police baton (T27.33 – T27.34), following which, the remainder of the handcuffing procedure was completed, and the plaintiff was then taken to the police vehicle and transported to Grafton Police Station for the required processing of his arrest.

10. The plaintiff complains that, at the very least, immediately after Ms Luscombe had told the police officers that she had invented her earlier account of the plaintiff having assaulted her, his arrest and detention should have been discontinued.

11. In view of the existence of conflicting statements, including the plaintiff’s denial of having assaulted Ms Luscombe, and where Ms Luscombe had earlier given a confused and disjointed account of the alleged events (T93.25 – T94.5), the police officers determined not to charge the plaintiff with assaulting Ms Luscombe. Subsequently, the charge the police made against the plaintiff, namely of resisting arrest, was dismissed in proceedings in the Local Court.

12. The outcome of this case stands to be determined by the resolution of disputed matters of fact that emerged from the evidence concerning the sequence of events in the circumstances surrounding the plaintiff’s arrest, and whether the arrest and the force used to effect the arrest, was justified.

13. The resolution of those issues requires, and is guided by, findings concerning the credibility and the reliability of the recollections and testimony of the respective witnesses, namely, the plaintiff, Senior Constable Nolan, and now Senior Constable Ward.

14. That process must necessarily be undertaken in conjunction with an assessment of the contents of supporting contemporaneous police documentation that was prepared shortly after the events in question.

Issues

15. The plaintiff distilled his case into four determinative and overlapping points of argument:

1. The alleged failure of the arresting officers to inform him of the reason for his arrest, if accepted as factually correct, renders his arrest unlawful, and establishes that his imprisonment was also unlawful: Christie v Leachinsky [1947] AC 573; s 201 and s 202 of LEPRA;

2. The plaintiff argued that the defendant has failed to establish that the arresting police officers held the requisite degree of satisfaction as required by s 99(1)(b) of LEPRA, to justify that it was reasonably necessary to arrest him;

3. The plaintiff argued that excessive force was used when a police baton was used to strike him in the course of effecting the arrest. He claims this was both excessive and unlawful, and amounted to a battery of him, irrespective of the lawfulness of the arrest; and

4. The plaintiff further argued that an excessive period of detention occurred in that he had been detained after a time when the requirements of s 99(1)(a) of LEPRA could no longer have been established or maintained, namely after Ms Luscombe had informed police officers that her allegations that the plaintiff had assaulted her, were false.

16. Consequent upon the plaintiff’s allegations, he claims general compensatory damages, aggravated damages, exemplary damages, interest on damages, and the legal costs of the proceedings.

Concessions by defendant and claimed defences

17. The plaintiff claims, and the defendant concedes, that the State of NSW is vicariously liable for the actions of the police officers who arrested him. In its filed defence, the defendant has also conceded that the two police officers arrived at the premises at about 10.50pm on the night in question, and after a brief conversation that was conducted with the plaintiff through a locked screen door at the front of the premises, the plaintiff then unlocked the screen door, at which time, both Senior Constable Nolan and Constable Ward entered the premises and placed the plaintiff under arrest: paragraphs 4, 5 and 8 of the defence filed on 26 October 2017. Accordingly, a material matter in dispute is the actual timing of the plaintiff’s arrest.

18. The defendant has sequentially denied that: the plaintiff’s arrest was unlawful; that the plaintiff had been falsely imprisoned; and that the plaintiff had been assaulted and battered by the arresting police officers, as alleged by the plaintiff: paragraphs 9, 10, 11, 12 and 15 of the defence filed on 26 October 2017.

19. In answer to the plaintiff’s claim, the defendant specifically further asserts that:

1. despite the absence of the plaintiff’s consent to being touched in any way by the police officers, the arrest of the plaintiff was lawful by reason of the operation and effect of s 99(1) of LEPRA, and in respect of which the defendant claimed there had been compliance by the arresting police officers;

2. the police officers were responding to alleged unlawful conduct of the plaintiff, that the police officers were necessarily acting in their own defence, and that the actions of those police officers were reasonable responses to the circumstances that they had each perceived: s 52 of the Civil Liability Act2002 (NSW) (“CL Act”);

3. pursuant to s 54 of the CL Act, on the balance of probabilities, the plaintiff’s conduct constituted the offence of “resist officer in execution of duty pursuant to s 58 of the Crimes Act 1900”;

4. the police officers were at all material times acting in good faith, pursuant to s 6 of the Police Act1990 (NSW).

20. The defendant also claimed that the arresting officers had complied with s 201 and s 202 of LEPRA: T230.26. The defendant did not concede that the arrest of the plaintiff should be characterised unlawful, whereas the plaintiff maintained the contrary position: T234.43 – T235.44; T243.41.

Credibility and reliability of testimony

21. In the paragraphs that follow, I set out my conclusions on the credibility and the reliability of the testimony given by the respective witnesses and other persons named in the evidence.

Ms Tayla Luscombe

22. Ms Tayla Luscombe, the plaintiff’s former de facto partner with whom he has a child, did not give evidence. At the time of the events in question, their child resided, and still continues to reside, with the plaintiff’s parents. The statements and the description of events attributed to Ms Luscombe in the evidence remain untested.

23. Accordingly, these proceedings are not concerned with determining the credibility or the reliability of any descriptions of events or comments attributed to Ms Luscombe. In their investigation of the underlying events, the police officers were entitled, for the purpose of that investigation, at least initially, to rely upon the assumed truthfulness of what Ms Luscombe had said to them concerning the alleged actions of the plaintiff. That was until the time at which Ms Luscombe told the police officers that she had made up her allegations against the plaintiff as to having been assaulted by him.

Ms Regina Burke

24. Ms Regina Burke is the mother of Ms Luscombe. She was the owner of the premises where the plaintiff and Ms Luscombe resided. Ms Burke did not give evidence in these proceedings. Accordingly, these proceedings are not concerned with determining the accuracy or otherwise of any statements and events attributed to Ms Burke as described in the evidence.

The plaintiff

25. After the plaintiff had been cross-examined at length on the substance of his case, I was left with the impression that he was a generally reliable witness. That provisional view was exposed to the parties at that time, and also during the course of final addresses: T72.45; T246.49 – T247.2.

26. It is relevant to note that in these proceedings, the plaintiff has fairly acknowledged that he had some memory difficulties. In assessing the reliability of the plaintiff’s memory on particular matters, I have not overlooked the plaintiff’s own concerns in that regard. The background to those concerns was that, as a child, when aged 11 years, he had sustained a head injury when he fell from a horse. He acknowledged that injury has had effects upon his memory: T56.39. The defendant sought to make much of that history, in my view too much, in terms of reliability of the plaintiff’s testimony. I have not accepted the defendant’s submissions in that regard.

27. I consider that despite the plaintiff’s disclosure of memory issues, he nevertheless gave a coherent account of the events in contention. He did so in a manner and with content that did not suggest unreliability or incredulity. My impression, absent medical evidence on the issue, was that the plaintiff’s childhood injury did not appear to have had any obvious adverse manifestations on his ability to recall and to recount significant matters surrounding the events in question in these proceedings.

28. Whilst it must be accepted that the plaintiff held some concerns over the reliability of aspects of his memory, evidenced by his stated need to at times use his mobile telephone to record some events, I am satisfied the plaintiff’s recall of a centrally significant event in the subject matter of these proceedings, was reliable, namely, on the question of whether, as required by law, he had been given a reason for his arrest at the time when he was arrested.

29. The plaintiff’s evidence to the effect that he was not provided with reasons at the time of his arrest, an unusual occurrence of itself, may not have been persuasive. However, his evidence in that regard was consistent with his contemporaneously recorded answers and statements that were set out in specific detail within the transcript of the ERISP, a matter to which I shall later return.

30. Whilst I have considered the possibility that the circumstances of the plaintiff’s arrest would have been upsetting for him, including having been unexpectedly confronted by police officers, being held and then handcuffed by force, and then struck on the left forearm by a police baton, in combination with the possible effects of any underlying memory problems, could have had a distorting effect on the accuracy of his recall of some details of the events, I nevertheless consider that the plaintiff’s cited responses to questions that were contemporaneously and specifically recorded in the ERISP, provide satisfactory evidence that he has a reliable memory on the critical question of whether or not he was provided with a reason for his arrest at the time of his arrest.

31. I am comfortably satisfied as to the correctness of that view as it was not ever suggested to the plaintiff, either at the time that he made those particular responses in the ERISP interview, or in the course of cross-examination, that his statements in the ERISP interview, which indicated an apparent unawareness of the reason for his arrest, had been made for a self-serving or a mischievous purpose.

32. There were a number of credit-related peripheral matters that were raised in cross-examination of the plaintiff. In my view, absent supporting evidence to sustain the assertions made in that regard, where such assertions were denied by the plaintiff, I do not consider that those unsubstantiated matters should be seen as relevantly detracting from the plaintiff’s credit. I simply note those matters, as follows:

1. It was initially suggested that the plaintiff had on an unspecified occasion, thrown a bike through the back window of the vehicle belonging to Ms Luscombe’s ex-partner, whereas in contrast, the plaintiff said that the reverse was the case: T46.14 – T46.27;

2. Counsel for the defendant questioned the plaintiff’s paternity of his son, a challenge that was upsetting to him. He rejected that challenge and said he had documentary proof that was confirmatory of his paternity: T46.29 – T46.49. That matter was not taken any further;

3. The plaintiff denied having stolen Ms Luscombe’s mobile telephone on the day of his arrest: T47.32 – T47.36. Ms Luscombe was not called to provide evidence to sustain that allegation;

1. The plaintiff denied having knowledge of a credit card skimmer device that was mentioned in the evidence, and instead stated that the device in question, was on his understanding, a bar-code-scanner which he had found, and which was something he had intended to pass on to someone whom he thought might be able to use it in his business: T48.21 – T49.2. That evidence was not glaringly or inherently improbable;

2. The plaintiff denied that when at the house where the arrest took place, Ms Luscombe had not gone downstairs in order to speak to the police officers before he had gone downstairs to speak to them: T58.21 – T58.23. The plaintiff maintained it was Ms Luscombe, and not he who had then opened the front door to the premises: T58.16; T58.10 – T58.16.

33. The evidence of the sequence of events relating to that last matter in sub-paragraph (5) of [32] above was associated with some confusion as to the various stages at which the plaintiff and Ms Luscombe were either upstairs or downstairs in the events leading to the plaintiff’s handcuffing.

34. In my view, ultimately, it is not necessary to seek to definitively resolve that confusion, as the resolution of that matter was peripheral, Ms Luscombe was not called to give evidence on that or any other topic, and it was not crucial to a credit or reliability assessment. In my view, nothing of significance turns on the matters outlined at [32] above.

35. In cross-examination, it was suggested to the plaintiff that he had fabricated his evidence to the effect that he had not been informed about the reason for his arrest until he was back at the police station: T61.9. The plaintiff denied that he was not telling the truth in that regard, and instead he maintained that he was not told of the reason for his arrest until he entered the room where the ERISP was recorded: T61.16 – T61.18. For reasons that will be stated in my factual findings, I accept the plaintiff’s denial of that matter, and I reject that attack on his credit.

Senior Constable Nolan

36. A number of credit related and reliability of testimony matters arose from the evidence of Senior Constable Nolan, as follows:

1. The reliability of his evidence as to the sequence of events and the details of those events that unfolded at the premises where the plaintiff was arrested. These matters concerned:

1. What was said to the plaintiff at the front door to the premises: T53.27;

2. The number of occasions in which the plaintiff had gone back upstairs before he was placed under physical constraint;

3. In which hand the plaintiff had been holding his mobile telephone when restrained, and whether this was taken from him when he was restrained;

4. Whether the plaintiff resisted the arrest, and if so, in what manner;

5. Whether the plaintiff was attempting to assault Senior Constable Nolan, or had assaulted him, when Senior Constable Nolan was seeking to handcuff him;

6. Whether the plaintiff was resisting being taken to the police vehicle after he was arrested;

7. Whether the circumstances escalated so that the use of force was justified;

8. Whether Senior Constable Nolan sought to bolster his evidence on the question of concerns over the safety of Ms Luscombe;

9. The reliability of his evidence where he recounted in his oral evidence matters that he had not included in his contemporaneously prepared statement;

10. The acceptability of his explanation for his use of the term “direction” in connection with the requests he had made to the plaintiff and regarding his dealings with the plaintiff;

11. Whether the plaintiff had been showing signs of aggressive behaviour in the events surrounding his arrest;

12. The actual timing of the plaintiff’s arrest.

37. My findings on those matters will be identified in the appropriate factual context in which those questions arise. For present purposes, as will be explained in my reasons, it is sufficient to record that I had significant reservations about the reliability of important aspects of the evidence of Senior Constable Nolan concerning the events in question. I found him to be an unconvincing witness on several important matters of fact that were in dispute in these proceedings. Those matters will be referred to and analysed in the context in which they arise for consideration. For the reasons that will be made plain in such context, I was left with the impression that initial aspects of his evidence should be seen to be unreliable.

38. I have reached the conclusion that Senior Constable Nolan’s decision, as the senior officer, to arrest the plaintiff, was influenced by his mistaken belief that the plaintiff had failed to comply with what he had earlier assumed to have been a police direction given to the plaintiff.

39. In my opinion, in his dealings with the plaintiff and in his management of the circumstances of the plaintiff’s arrest, Senior Constable Nolan was acting under the incorrect impression that the plaintiff had failed to comply with a police direction to attend upon police to discuss the underlying events. His subsequent ERISP questions to the plaintiff, namely Q 71 and Q 76, reinforce my opinion in that regard. He acknowledged in his oral evidence that (absent an arrest) he had no power to direct a person to attend a police station for the purpose of answering questions: T106.19.

40. In his oral evidence, Senior Constable Nolan sought to explain his use, in the ERISP interview, of the word “direction”, as a request: T107.24 – T109.38. I do not accept that explanation. Instead, based on the plain meaning of the word direction he used in the context of his cited questions 71 and 76 in the ERISP, I find that Senior Constable Nolan was acting under the erroneous belief that the plaintiff had failed to comply with an assumed but unenforceable direction to attend the police station. I consider that mistaken belief on the part of Senior Constable Nolan has then influenced his approach in dealing with the plaintiff in the events that subsequently followed.

Senior Constable Ward

41. I considered Senior Constable Ward did her best to recall the relevant events that occurred when she was a Constable on duty with Senior Constable Nolan. Nevertheless, I had doubts about the reliability of her evidence.

42. Those doubts arose, not from the patent hesitancy shown by Senior Constable Ward when answering some questions asked in cross-examination, but from an internal factual inconsistency in the content of her evidence, and from a factual inconsistency between her oral evidence and the content of the contemporaneous field arrest form, which she had completed shortly after the plaintiff was arrested.

43. The internal inconsistency in Senior Constable Ward’s evidence arose in an aspect of her description of the events that occurred whilst she was at the premises where the plaintiff was arrested.

44. Bearing in mind that it was common ground in the evidence that the plaintiff was told, through a locked screen door, that he was arrested (T84.10 – T84.12; T187.4), and that he then proceeded to go up the stairs inside the premises, Senior Constable Ward’s description of the police officers having then waited at the bottom of the stairs for him to return to the locked door and open it, having regard to the configuration of the premises, it was difficult to accept that evidence: T186.28 – T187.8.

45. In my assessment, the police officers could not have been at the bottom of the stairs at that time, as was described by Senior Constable Ward. This is because the stairs were well inside the premises, and were located some distance away from the locked front door. Whilst that door remained locked, this would have prevented the police officers from entering the premises and locating themselves at the bottom of the stairs within the premises at that time, as stated by Senior Constable Ward.

46. Accordingly, I consider that an element of unreliable conflation of events has affected the recollection of Senior Constable Ward. This has highlighted the identified internal inconsistency in her evidence, which has raised doubts about the reliability of her recollection generally.

47. There was a further inconsistency between an entry made by Senior Constable Ward on the Field Arrest Form, where it was recorded that the plaintiff had not behaved aggressively (Exhibit “D”), and the content of her oral evidence, which was to the contrary of what was stated in that form.

48. In her oral evidence, Senior Constable Ward made repeated reference to the plaintiff having behaved aggressively, with claims that the plaintiff had wrestled with police when arrested (T188.11), that he was physically resisting police (T188.40), that he was “thrashing, throwing his arm around” (T188.38), that he was pushing his body against the arresting officers (T189.32), and that it was difficult to handcuff him because he was “tightening up his body and forcing his body up against” her when she “was trying to contain him”: T189.43 – T189.45. At other places in her evidence she also described the plaintiff as yelling aggressively: T186.1 – T186.23.

49. Those alleged factual accounts outlined in [47] and [48] above, as to whether the plaintiff had behaved aggressively do not sit well together or with the content of Exhibit “D”, and in my view, the differences are irreconcilable.

50. Senior Constable Ward had refreshed her evidence from a statement she had completed within some hours of the plaintiff’s arrest. She had prepared that statement before the end of her shift. In those circumstances, given the nature of police work, that contemporaneous statement may reasonably be assumed to contain a more accurate rendition of her recollection of her knowledge of relevant events, especially given that it was intended that the plaintiff be prosecuted for various alleged offences, including resisting police in the execution of their duties.

51. Given the well-known nature and day-to-day volume of police work, which may reasonably be assumed to have involved Senior Constable Ward having had numerous interpersonal dealings involving confrontational instances of law enforcement, and given also the inevitable effects of the effluxion of time, Senior Constable Ward understandably took the opportunity to refresh her recollection of events from her statement: T193.44.

52. Notwithstanding that Senior Constable Ward had refreshed her recollection from her statement, she at times, could not recall relevant events when her evidence was tested, and she responded in terms of uncertainty, with answers such as “if it is in my statement” or “if I’ve put in my statement”: T192.50; T193.48; T194.1; T194.8. She was not a confident witness and the inconsistencies I have highlighted led me to doubt the reliability of her oral evidence on key matters of factual dispute. Significantly, the defendant did not seek to tender Senior Constable Ward’s statement.

53. Another internal tension appeared between Senior Constable Ward’s evidence (at T188.40; T197.34 and the other references cited above), regarding a concern over the plaintiff’s resistance to arrest, and a relevant concession she made in her evidence. This was to the effect that the plaintiff’s actions in unlocking the screen door of the premises, which had previously barred police from having physical access to the plaintiff, was an act of submission to the arrest, rather than an act of resistance: T197.41.

54. In my view, it is of some significance to the assessment of the reliability of Senior Constable Ward’s evidence that she contemporaneously completed the field arrest form in a manner and form that indicated the plaintiff had not exhibited aggressive behaviour: Exhibit “D”, p 2, Q 7. An assessment to the same effect was made by the Custody Manager at Grafton Police Station: Exhibit “B”, p 2, Q 7. In my view, if the plaintiff had exhibited aggressive behaviour towards the police officers in the circumstances, surrounding his arrest, a record of such behaviour would most probably have featured with some particularity as a contemporaneous notation to that effect in the appropriate place on the field arrest form, and in the custody management records.

55. Furthermore, if the plaintiff had been behaving aggressively at the time of his arrest, in the interests of officer safety, and in the interests of avoidance of possible self-harm by the plaintiff, it would have been most unlikely that the police officers, having searched him, would have allowed him to keep his mobile telephone with him whilst handcuffed and placed into the back of the police vehicle: T29 – T30. The plaintiff’s evidence that he had, and also used his mobile telephone whilst he was in the back of the police vehicle was not contradicted.

56. In the circumstances, I was left with the impression that the evidence of Senior Constable Ward did not provide a reliable factual account of important aspects of the disputed events.

Facts

57. Before addressing the issues calling for decision, it is necessary to set out some relevant findings of fact. In the paragraphs that follow, unless accompanied by an otherwise qualified commentary, I set out my findings of fact on the following topics of relevance that emerged from the evidence:

1. The plaintiff’s background circumstances;

2. The plaintiff’s relationship with Ms Luscombe;

3. The plaintiff’s domestic situation at the time of the arrest;

4. Pre-arrest contact between Ms Luscombe and police;

5. Pre-arrest communication to plaintiff by Constable Ward;

6. Pre-arrest events at the premises;

7. The arrest itself;

8. Transportation to Grafton Police Station;

9. Custody management;

10. Electronically recorded police interview [“ERISP”] with plaintiff;

11. Release of plaintiff from police custody;

(1) Plaintiff’s background circumstances

58. The plaintiff was born in 1985. At the time of the events in question, he was aged 30 years. He was in full time employment as an automotive spray painter. He had pursued that line of work for several years before the events in question.

(2) Plaintiff’s relationship with Ms Luscombe

59. For some time before the events in question, the plaintiff had been involved in an on-again and off-again de facto relationship with Ms Luscombe: T45.49; T46.12. Together, they had a son who, at the relevant time was aged 3 months. The child was living with the plaintiff’s parents, in circumstances where the plaintiff had been awarded full custody of that child at a time when Ms Luscombe had been in gaol: T41.22 – T41.36.

60. At the time of the plaintiff’s arrest, and for about 9 months beforehand, he and Ms Luscombe had resided together at a unit owned by Ms Luscombe’s mother, Ms Burke, at 1/104 Spring Street, South Grafton: Exhibit “E”.

61. A suggestion was put to the plaintiff in cross-examination to the effect that he had been told, as at 17 November 2015, that he was no longer welcome at the premises owned by Ms Burke. He denied that proposition: T45.10 – T45.46. It appears that the only other persons who could have given reliable evidence to support an assertion to that effect, were Ms Luscombe and Ms Burke, neither of whom was called to give evidence along those lines. I accept the plaintiff’s account of his relationship with Ms Luscombe, and his evidence as to his entitlement to maintain his place of residence at the described premises at the time of his arrest.

62. The plaintiff’s account of his personal familiarity with some of the activities of Ms Luscombe was that he was aware, from his own observations, that towards the end of their relationship, she had been using marijuana, as well as another illicit drug known as ice, and other illicit drugs. He said he had observed her to exhibit what he described as “crazy” behaviour at those times: T19.50. He further stated that he had also observed that at times, when the effects of the drugs she had taken would wear off, she would become tired, go to sleep, and then when awake, she would exhibit what he described as “psycho” and “crazy” behaviour: T20.4 – T20.14.

63. It was put to the plaintiff, and denied by him, that in the week before his arrest, there had been a fight in the form of a verbal argument, between himself and Ms Luscombe over her mobile telephone having been left in his car. In his evidence, the plaintiff explained those circumstances, which had been attended by police, as involving Ms Luscombe having left her mobile telephone on the seat of his car, and that subsequently, he did not want to allow her into his vehicle to retrieve it as he did not trust her.

64. The plaintiff’s evidence on that matter was to the effect that Ms Luscombe had made a false complaint to the police, in which she had alleged he had stolen her mobile telephone. His account of those events was that he had simply driven off in his vehicle after she had alighted from the vehicle, having left her mobile telephone behind in his vehicle. When the plaintiff explained those circumstances to the attending police officers, they simply arranged to take the device in question and give it to Ms Luscombe without any difficulty having been raised by the plaintiff: T49.5 – T50.2. No further police action resulted from those events.

65. Whilst recognising that Ms Luscombe did not give evidence in the proceedings, and whilst also recognising that the plaintiff’s account of his observations of Ms Luscombe’s actions and pre-arrest activities remain untested, on the face of his descriptions, there was no obvious reason to suggest that his account of those events was unlikely, or glaringly improbable, or otherwise requiring it be discounted.

(3) Plaintiff’s domestic situation at time of arrest

66. At about 8.30am on the morning of 17 November 2015, the plaintiff left the premises where he had resided with Ms Luscombe. He did so in order to go to his work. Before leaving for work, he had observed Ms Luscombe to have arrived home at a time somewhere between 7.00am and 7.45am, after she had been out, apparently partying, the previous night. By the time the plaintiff left to go to work, Ms Luscombe had lain down on the lounge to go to sleep.

67. On the day in question, the plaintiff returned home from work at lunch time. On his arrival at home at that time, he observed Ms Luscombe to be asleep on the upstairs lounge. After the plaintiff roused her, a brief conversation took place between them about a possible outing later that day on account of it being her birthday. Following a further conversation about what the plaintiff said he had understood to concern a bar-code scanner, he then left the house to go back to work: T20.25 – T21.12.

68. After his day at work, the plaintiff went to the home of a friend, where he played a ball game with the child of that friend, and then later, he attended at a barbeque. He then arrived back at home at about 10.00pm that evening.

(4) Pre-arrest contact between Ms Luscombe and police

69. Senior Constable Nolan stated that he had some prior dealings with Ms Luscombe on two or three instances, one being in relation to an occasion when she had sought some advice from him at the police station, and on another occasion, in the street, where he had directed her to go home, in circumstances where she was, in his opinion, in an intoxicated state by reason of her consumption of alcohol: T78.15 – T78.24.

70. Constable Ward also had some previous dealings with Ms Luscombe concerning criminal matters and previous domestic violence matters: T181.4. In fairness to the plaintiff, it must be said that this evidence does not reasonably permit an inference that those previous matters and police dealings relating to Ms Luscombe also in some way involved the plaintiff.

71. Whilst the plaintiff had been away from home on the day in question, and unbeknown to him at the time, there had been some background contact between Ms Luscombe, Constable Ward and Senior Constable Nolan.

72. Senior Constable Nolan stated that about 6.30pm on the evening in question, Ms Luscombe had telephoned Grafton Police Station and had spoken to him about the plaintiff having allegedly assaulted her by slapping her in the face, and of him having allegedly stolen her mobile telephone: T78.13 – T79.12; T79.40 – T79.44.

69. At about 7.15pm on the evening in question, Senior Constable Nolan and Constable Ward attended on Ms Luscombe at her home to investigate her claims: T78.45. At that time Senior Constable Nolan spoke with Ms Luscombe and obtained the above account from her concerning the alleged assault and the alleged theft of the mobile telephone: T79.9 – T79.45.

70. Whilst at the premises, Constable Ward spoke with Ms Burke. It appears that Ms Burke did not want to become involved: T80.18. Senior Constable Nolan stated that Ms Luscombe had declined to make a statement about the events, but wanted an AVO to stop the plaintiff from hurting her: T79.48 – T80.3. According to his training and experience, the descriptions obtained by Senior Constable Nolan suggested to him there had been domestic violence, which required serious consideration and a thorough investigation.

71. Initially, Constable Ward was not paying much attention to the conversation between Senior Constable Nolan and Ms Luscombe because she was at the time preoccupied with speaking to Ms Burke: T192.1 – T192.11.

72. When Constable Ward spoke to Ms Burke she obtained a history from Ms Burke of “domestic fighting” between Ms Luscombe and the plaintiff, which Ms Burke thought might escalate: T181.39. After she had finished speaking with Ms Burke, she then spoke to Ms Luscombe and she asked Ms Luscombe if she could call the plaintiff using Ms Burke’s mobile telephone: T181.12; T182.2. That was a plainly reasonable investigatory step in the circumstances.

73. Before Senior Constable Nolan left the premises, he said he had observed that Ms Luscombe was “very stressed”, and that “she was having difficulty trying to explain what happened”, and that in her explanations “she was going backwards and forwards, commenting on one thing and then jumping a couple of hours, and then going backwards and forwards”. He also observed her to be “upset” and “emotional”: T80.25 – T80.30. The description suggested significant confusion on the part of Ms Luscombe.

74. Although Constable Ward had initially been speaking with Ms Burke, she agreed with the observation that Ms Luscombe was very confused when spoken to by Senior Constable Nolan whilst at the premises: T192.26. Constable Ward said that Ms Luscombe could not recall the sequence of events of that afternoon. Constable Ward contemporaneously recorded that view in a statement she had prepared before the end of her shift on the following morning: T192.35 – T193.18.

75. Senior Constable Nolan said that in the circumstances of his attendance at Ms Luscombe’s home on the night in question, he did not believe that Ms Luscombe was affected by any drugs or alcohol, and based on her account of events, he believed her proffered version of the events to the effect that an assault had been committed by the plaintiff: T80.30 – T80.37.

76. Ms Luscombe’s presentation, as described in the evidence of Senior Constable Nolan and Senior Constable Ward, which suggested elements of uncertainty if not unreliability, obviously required a careful investigation before active measures were taken, including steps such as effecting an arrest of the plaintiff to deprive him of his liberty. The most basic requirement of such an investigation would have been to speak to the plaintiff and obtain any comments he might want to make about the allegations Ms Luscombe had made against him. This was so particularly as Ms Luscombe’s account of events was confused. That basic requirement is confirmed by the police request for the plaintiff to attend Grafton Police Station.

(5) Pre-arrest communication to plaintiff by Constable Ward

81. The plaintiff received a call on his mobile telephone whilst he was at the home of a friend. Initially, he believed this was a prank call from Ms Luscombe or her friends: T21.42. The plaintiff said that the call was taken over by a woman who he said claimed to be Constable Ward, of Grafton Police Station, who asked him to “come down to the police station and have a chat”. From the perspective of what was required as a police response to the allegations made by Ms Luscombe, I consider that Senior Constable Ward had taken a reasonable course in those circumstances. That said, Senior Constable Ward’s request of the plaintiff did not oblige the plaintiff to attend the police station.

82. The plaintiff said that he had referred to that call as having been received from a person who claimed to be a police officer because, at the time, he did not know that officer, he had no awareness of a need for him to speak to police, and rightly or wrongly, he therefore had treated the call as a practical joke.

83. The plaintiff said he took the initial view that he was the recipient of a prank call because he was aware of some male and female associates of Ms Luscombe who had the same surname as Constable Ward, and whom he understood were involved in the use of the illicit drug ice, and in criminal activity associated with the use of illicit drugs. Therefore, he discounted the call and instead of going to the police station as requested by Constable Ward, he went home to the Spring Street address, arriving there at shortly after 10.00pm.

84. At the time, the plaintiff’s response to the request to go to the police station was that he was otherwise engaged and would call in there when he had time to do so: T21.34 – T22.15. At that time the plaintiff had not committed any wrongdoing concerning police interaction with him. Senior Constable Nolan stated that whilst on the speaker phone during the course of that call, he heard the plaintiff say that he was too busy to come to the police station: T81.14: T182.28. Constable Ward was the person speaking with the plaintiff at that time: T182.11. After the plaintiff declined the invitation to meet with police, the call was ended by Constable Ward: T182.48. The officers then returned to the police station: T183.31. They had been at Ms Luscombe’s premises for about 15 minutes: T183.49.

85. In her oral evidence, Senior Constable Ward related that the terms of that telephone conversation in which she had initially requested the plaintiff either attend at the address in question at Spring Street, where police were in attendance, or alternatively, that he meet with police at the police station. When the plaintiff responded by saying he was too busy, she then asked if he could meet at the police station in 5 minutes: T182.14 – T183.48. The plaintiff did not comply with that request. That response did not involve wrongdoing on his part.

86. Senior Constable Ward confirmed that the conversation she had with the plaintiff as cited above was in the form of a request made of him and was not a direction given to him: T183.2. This was a point that distinguished the position taken by Senior Constable Ward, and the underlying assumption within Senior Constable Nolan’s views as stated in his ERISP questioning of the plaintiff to the effect that the plaintiff had been given a “direction” to attend Grafton Police Station as part of the police investigation of the allegations made by Ms Luscombe: Exhibit “A”, Q 71, p 9; Q 76, p 10.

87. In relation to the call made to the plaintiff from Ms Luscombe’s premises, he reiterated that he thought someone was playing a joke on him by making that call, and he said that if he had received another call, he would have gone to the police station: T22.16 – T22.24.

88. In her oral evidence, Senior Constable Ward later added that in the conversation with the plaintiff as described above, she had told the plaintiff: “I need to speak to you about an incident that occurred earlier” that day: T183.18. In my assessment, this was a non-specific description, as it made no reference to any alleged assault on Ms Luscombe.

89. In evidence, the reason given by the police officers for wanting to talk to the plaintiff and to have him come to the police station was to discuss the allegation made against him by Ms Luscombe and to “see whether he wanted to say anything in regards to that”: T89.24. However, I find that at the time of the above telephone conversation, that allegation of an assault on Ms Luscombe remained unexposed and unparticularised to the plaintiff.

90. The plaintiff was not sure whether the above telephone call from Constable Ward had occurred at 6.30pm, or 7.30pm: T68.20 – T68.29. As the plaintiff did not attend Ms Luscombe’s premises, the police officers then went to the Grafton Police Station to begin their initial report in relation to the matter: T80.48; T81.25.

91. Senior Constable Nolan stated that since the plaintiff had not attended the police station in answer to the telephone request that he do so, at about 8.30pm, he then sent a text message to the plaintiff: T81.27 – T81.45. The police messaging system would have revealed the message had been successfully sent, but it would not have indicated whether the message had been read by the recipient: T82.7. In the described circumstances, the sending of that text message was plainly a reasonable action to be taken by Senior Constable Nolan to make contact with the plaintiff. The plaintiff said that he did not notice a text message on his telephone where that message had been sent at around 8.30pm: T69.19 – T69.44.

92. The plaintiff acknowledged the fact of his mobile telephone number and he also acknowledged that a message had been sent to him from Grafton Police Station on the day in question, stating: “Scott, make yourself available to Grafton Police re: Assault upon Tayla earlier today”: Exhibit “1”. However, the plaintiff also stated that he only saw that message after he had been released from custody in the early hours of the morning on the following day: T74.29 – T74.50. I accept his evidence in that regard.

93. In those circumstances, where, until arrested, the plaintiff was unaware of a basis for the police wanting to speak to him, I draw no adverse conclusions from his decision not to go to the police station as was requested of him either in that call, or by that text message.

94. At this point, it is relevant to observe that there was a factual divergence in the content of Senior Constable Ward’s evidence of the telephone call with the plaintiff as observed at [88] above, where she made reference to “an incident”, and the context of the text message referred to at [92] above, namely an alleged “assault on Tayla”.

(6) Pre-arrest events at the premises

95. At about 10.00pm, on the plaintiff’s arrival home on the evening in question, and after checking to see whether any of his belongings had been stolen, he noticed Ms Luscombe “was acting kind of funny like normal”. He then sat down on the lounge near the upstairs balcony to watch television before going to bed: T22.25 – T22.50.

96. After the police officers had waited a while for the plaintiff to arrive at Grafton Police Station they went out to look for him at the home of his parents: T184.10 – T184.34. They then drove past the subject address and saw that the plaintiff’s vehicle was parked outside. They decided to approach the front door: T184.35 – T184.47.

97. Whilst the plaintiff was watching television, he heard the police vehicle pull up outside the premises. He then observed the two police officers appear outside the house. By this time, Ms Luscombe came out onto the balcony and had spoken to the police officers, saying words to the effect that she “was all good” and that they “could go away”: T23.1 – T23.29.

98. The plaintiff stated that up until that time, no police officer had drawn his attention to any alleged wrong-doing on his part. I accept his evidence in that regard.

99. Constable Ward’s version of that conversation with Ms Luscombe was that Ms Luscombe had come out onto the upstairs veranda and said “Everything’s good, everything’s okay”: T184.49. Constable Ward said she had formed the opinion that compared to her previous contacts with Ms Luscombe, Ms Luscombe’s demeanour seemed apprehensive regarding the manner in which she spoke: T184.50 – T185.9.

100. In that conversation, Constable Ward asked if the plaintiff was in the house and if so to send him down to the front door: T185.15. At that point, Constable Ward did not have an exact recollection of events, but stated that when the plaintiff came down to the front door Senior Constable Nolan “introduced us again”: T185.27. I interpret the reference to “again” to refer to an introduction that was in addition to that which took place in the previous telephone call where she only introduced herself, and not Senior Constable Nolan. Alternatively, her evidence on this point could be a reference to the earlier discussion the police officers had with Ms Luscombe.

101. Constable Ward claimed that Senior Constable Nolan went on to say to the plaintiff that he “needed to speak to [him] about an allegation of assault earlier that day”: T185.32. She later adjusted that description to quote Senior Constable Nolan as having said: “I need to speak to you about an assault on Tayla Luscombe”: T185.47. I do not accept the evidence of Senior Constable Ward as being reliable on those specific matters.

102. Constable Ward said that at that time, she observed the plaintiff turn and run back up the stairs yelling at Ms Luscombe who was at that time yelling back at him. At that time she could not see the plaintiff, and she did not recall the content of that yelling, which she described as being aggressive: T186.1 – T186.23. Senior Constable Ward’s description of the plaintiff being aggressive is at odds with the contemporaneous field arrest records Senior Constable Ward had prepared and I do not accept her evidence in which she described the plaintiff as being aggressive.

103. After the initial discussion with the plaintiff, the police officers remained downstairs and outside the locked screen door. Constable Ward stated of those circumstances that they: “then waited at the bottom of the stairs” and that she requested the plaintiff to return to the front door to open it and come out to speak to her: T186.28 – T186.46. The plaintiff then returned to the front door where Senior Constable Nolan and Constable Ward were standing: T186.50. I do not accept that the police officers could have been “at the bottom of the stairs” within the premises at that time. The stairs were well within the premises and away from the front door. Constable Ward said that at that time, the front door, which I took to be the screen door, remained locked, and the plaintiff, after returning to the door, remained in a position between the stairwell and the front door: T187.3 – T187.8.

104. Constable Ward claimed that at that time the plaintiff ran back up the stairs, “aggressively, and yelling even more words to Tayla Luscombe”, and she could hear Ms Luscombe yelling back at the plaintiff, but she could not recall what was being said by either of those persons: T187.10 – T187.24. For the reasons already identified, I do not accept Senior Constable Ward’s description of the plaintiff having behaved “aggressively” at that time.

(7) Arrest circumstances

105. The plaintiff’s account of the events was that whilst he was upstairs, and after he had heard the police officers ask Ms Luscombe to ask him to come downstairs to speak to them, he obliged that request: T23.44 – T24.3.

106. When the plaintiff went downstairs in order to speak with the police officers he said something to the police officers along the lines of: “It seems there’s a bit of a problem”: T24.7. At the time of that conversation he was standing behind the grille of a locked screen door, at an open internal doorway: T24.10 – T24.30.

107. At this point of the interaction between the plaintiff and the police officers there was a conflict between the respective recollections of what then took place.

108. The plaintiff disagreed with the proposition that whilst he was at the door, when Senior Constable Nolan and Constable Ward introduced themselves, they had said : “We are here to talk to you about an assault on Tayla here earlier today. Can you come outside?”: T58.35; T58.43. The plaintiff’s disagreement with that version was with regard to the statement of an alleged assault on Ms Luscombe. His evidence was that he was not given that cited reason, as was variously stated by the police officers. That evidence was consistent with the plaintiff’s contemporaneous statements on that issue as set out in the ERISP interview. I have accepted the plaintiff’s evidence on this issue for reasons that will be made clear.

109. The plaintiff stated in response to the introductory remarks by police which indicated they wished to speak to him, that they could talk to him from where he was standing, which was on the other side of the locked grille or screen door, as he was about to go to bed: T58.50 – T59.40.

110. It was at that point that Senior Constable Nolan indicated to the plaintiff he could break down the door to permit entry if necessary. At that point, being concerned about possible violence occurring, the plaintiff said he either ran or proceeded briskly upstairs to get his mobile phone to use it as a recording device, whilst also yelling out to Ms Luscombe, who was on the plaintiff’s account, by then in the shower, to come downstairs: T59.44 – T60.18.

111. The plaintiff explained that his stated intention of recording the events involving the police attendance arose from his concern over a lack of trust (T25.20), and he also said that he made a practice of using his mobile telephone to make recordings to assist his memory because, as he had said, he did not have a very good memory: T62.15 – T62.31.

112. The plaintiff said that he had unlocked the screen door in response to the request that he do so because he felt intimidated by the circumstances: T64.40 – T65.5.

113. The plaintiff described his arrest as having taken place as soon as he unlocked the screen door. He said that at that point, the police officers came into the house, and immediately placed one handcuff on his right arm and said “you’re under arrest”: T62.10; T65.48. He said that he believed Constable Ward placed the handcuff on his right arm: T66.3 – T66.25; T67.15. He described that police approach as being “like a bull at a gate where the police officers barged in”: T63.33; T63.46. Whilst I accept that the plaintiff held that belief at the time, I consider that aspect of his “bull at a gate” comment was most probably coloured by the overwhelming nature of events that were then occurring.

114. The plaintiff denied that during the arrest he was holding his left arm up in a manner to resist being restrained: T67.16 – T67.25. He also denied using his body to push back the officers who were trying to arrest him: T67.31. His denials are consistent with the lack of any reference to aggression on his part in the content of the police field arrest form. I accept the plaintiff’s evidence in that regard. He explained that he was using his left hand to try and unlock his phone, which was not functioning properly, and this was proving to be difficult to achieve: T67.35.

115. The plaintiff stated that at that point, Senior Constable Nolan proceeded to strike him on the left wrist with his baton, and then place the handcuff on his left wrist: T67.43. The plaintiff agreed that after the baton strike, he had tensed his body and he was at the same time trying to unlock his mobile telephone, but he denied resisting being arrested or handcuffed: T67.45 – T68.9. I accept the plaintiff’s evidence in that regard. In the course of his evidence, the plaintiff demonstrated that it was possible to use his mobile telephone with his hands behind his back as if handcuffed: T29.31 – T29.46.

116. The plaintiff stated that at the time when the police arrested him, Ms Luscombe was asking them to in effect let him go: T54.32. He stated that she had come out of the shower. The plaintiff may have been incorrect about her being in the shower. In my view, nothing turns on that matter of detail, especially as Ms Luscombe was not called to give evidence. In any event, the plaintiff did not claim a full recollection of what Ms Luscombe may have said at that time. His evidence in that regard, was as follows:

202. Consequent upon the above findings, I now turn to the assessment of the plaintiff’s entitlement to damages.

Issue 5 – Assessment of damages

205. In Smith v State of NSW at [243] – [257] I identified the principles which guide the amount of damages in this type of case:

“[243] The defendant acknowledges that the law places a high value on personal liberty. The right to personal liberty cannot be impaired or taken away without lawful authority, and then only to the extent and for the time which the law, namely legislation, prescribes: Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278, at pp 292 and 296.

[244] It follows that the infringement of such rights by an unlawful arrest and the consequential wrongful deprivation of liberty, as I have found to be the case here, provides the basis for an assessment of damages, which involves making an evaluative judgment.

[245] In a case where exemplary damages are claimed in addition to general compensatory damages, which includes aggravated damages, compensatory damages must be assessed first, before determining whether the disapprobation of the conduct of the arresting police should be marked by an award of exemplary damages, and if such damages are called for, no element should be compensated more than once: NSW v Radford [2010] NSWCA 276, at [97]; State of NSW v Zreika [2012] NSWCA 37, at [63] – [64].

[246] That is because, it is necessary to maintain the distinction between the compensatory nature of general and aggravated damages and the punitive and deterrent nature of exemplary damages: State of NSW v Abed [2014] NSWCA 419, at [230].

…

[249] In State of NSW v Abed, the period of detention, including transportation to a police station, was for 3 hours, which attracted ordinary compensatory damages of $10,000 without an award for exemplary damages: Abed at [236]. In my view, the present case is of a more serious character than that case because of the late hour of the arrest and the nature of the uncomfortable road journey the plaintiff had to endure, as described at paragraph [39] above.

[250] In Coyle v State of NSW [2006] NSWCA 95, at [100], there was a relatively short period of unjustified deprivation of liberty, but nevertheless also involving a most terrifying and unforgettable experience, attracted an award of compensatory damages in the sum of $10,000.

[251] In Hage-Ali v State of NSW [2009] NSWDC 266, the decision in Coyle was considered. In that case, at [252], the plaintiff’s background conduct as a cocaine user did not nullify her right to be arrested lawfully. In that case, compensatory damages for distress, humiliation and upset, were assessed at $7000.

[252] In contrast, to the cases referred to by the defendant, the plaintiff pointed to the following damages awards as an appropriate guide to the assessment required in this case.

[253] In Zaravinos v State of NSW [2004] NSWCA 320, at [50] – [51], in respect of a detention of the order of about 3.5 hours that was found to be arbitrary, unnecessarily long, high-handed and humiliating, there was an award of $25,000, but those damages were analysed to include awards for aggravated and exemplary damages.

[254] In State of NSW v Coleman [2000] NSWCA 183, at [16] – [18], in respect of a wrongful detention of about 2.5 hours, with resultant physical injuries, there was an award of general, aggravated, and exemplary damages, without dissection as to components for those elements, in the overall sum of $28,000.

[255] In State of NSW v Quirk [2012] NSWCA 216, at [158], albeit in relation to different facts, there was an award of $25,000 for the combined elements of ordinary or general damages and aggravated compensatory damages, with a separate amount allowed for exemplary damages.

[256] In my view, the examples cited simply serve to demonstrate that there is scope for an evaluative range for the assessment of damages of the kind claimed by the plaintiff, and the individual circumstances of each case must guide the assessment, as the cited examples cannot be regarded as being prescriptive, but rather, demonstrating that an evaluative balance must be struck, according to the underlying facts and guiding principles, as occurred for example, in State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496, at [142].

[257] It was submitted on behalf of the plaintiff that since a decade has passed following the decision in Zaravinos, and 15 years have passed since the decision in Coleman, the assessment of such damages should in the present case, exceed those amounts, in keeping with more contemporary standards. That submission has persuasive force and it will be reflected in my assessment.”

206. In this case I adopt the same approach as cited above.

General compensatory damages

207. The plaintiff’s bewilderment and outrage at his arrest was immediate. That feeling persisted right up until the time of his release. The plaintiff’s sense of outrage is discernible from his answer to Q26 of the ERISP interview, where he labelled the police conduct as “pathetic”. He still has that sense of grievance.

208. The plaintiff seeks separate monetary assessments of general compensatory damages for the different elements of his claim. He seeks $15,000 for assault, $15,000 for false imprisonment, as well as aggravated damages of $15,000 for assault, and aggravated damages of $10,000 for false imprisonment. In my view that approach is artificial, and it is contraindicated as it would lead to overlapping and overcompensation, especially where the initial precipitating events occurred in a relatively short period of time.

209. In my view, the appropriate sum to be awarded for general compensatory damages for wrongful arrest, assault, battery and false imprisonment is the sum of $25,000.

Aggravated damages

210. Whilst, the plaintiff suffered an assault and battery when Senior Constable Nolan struck him twice with his police baton, and grazed an elbow in the events, those matters did not give rise to assessable damages for personal injury. Rather, the repeated baton striking of the plaintiff should be seen as an aggravating circumstance that attracts an award of aggravated damages. In addition to general compensatory damages of $25,000, I assess aggravated damages at $10,000.

Exemplary damages

211. The plaintiff claims $50,000 for exemplary damages. For the reasons already outlined, I have found the arrest, striking and wrongful detention of the plaintiff to have been ill-considered, and unlawful. However, the police officers did not act with malice, bad faith, or contumeliously. Accordingly, there should be no award of exemplary damages.

Interest on damages

212. The plaintiff claims interest on his damages award. The damages crystallised as at 17 November 2015 when the plaintiff was released from unlawful custody: Zaravinos v State of NSW at [52]. This requires that interest be awarded on $35,000 at the full rate of 4 per cent over 2.29 years to the commencement of the hearing on 5 March 2018: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3.

213. Interest on the plaintiff’s damages award is therefore assessed in the amount of $3,206.

Summary of damages assessment

214. My assessment of the plaintiff’s damages is summarised as follows:

(a) General compensatory damages	$25,000
(b) Aggravated damages	$10,000
(c) Exemplary damages	$Nil
(d) Interest on damages	$3,206
Total	$38,206

Disposition

215. The plaintiff has made out his cause of action. The defendant has failed to justify the plaintiff’s arrest and detention. General compensatory damages, including aggravated damages, are assessed at $35,000. Interest is assessed at $3,206. The plaintiff should have judgment in the total sum of $38,206.

Costs

216. It follows that the defendant must pay the plaintiff’s costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

217. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $38,206 including pre-judgment interest;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless a party shows an entitlement to some other costs order;

3. The exhibits may be returned;

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

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Decision last updated: 15 February 2019