Nasr v State of New South Wales - [2007] NSWCA 101

No judgment structure available for this case.

Reported Decision: 170 A Crim R 78

New South Wales

Court of Appeal

CITATION: NAKHL NASR v STATE OF NEW SOUTH WALES; GEORGE NASR v STATE OF NEW SOUTH WALES [2007] NSWCA 101

HEARING DATE(S): 19 February 2007

JUDGMENT DATE:
4 May 2007

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Campbell JA at 3

DECISION: In each appeal ; (1) Appeal dismissed. ; (2) Appellant to pay costs of the respondent of the appeal.

CATCHWORDS: CRIMINAL LAW – arrest – arrested person to be taken before an authorised Justice to be dealt with according to law – delay – factors to be considered when determining whether delay unreasonable – where police station has influx of prisoners – where prisoners’ solicitor busy with multiple prisoners – Crimes Act 1900, section 352 - CRIMINAL LAW – arrest – bail – police bail – police required to determine bail or bring accused person before a court as soon as reasonably practicable – delay – factors to be considered when determining whether police bail decision made as soon as reasonably practicable after accused person charged – external constraints on police – where police station has influx of prisoners – where prisoners’ solicitor busy with multiple prisoners – Bail Act 1978, section 18 - POLICE – actions for wrongful arrest, trespass and other wrongs – false imprisonment – whether initially lawful detention became unlawful after delay in bringing accused person before an authorised Justice - POLICE – rights, powers and duties – police powers of detention – length of time during which accused person may be lawfully detained – requirement to take accused person before an authorised Justice - TORTS – trespass to the person – false imprisonment – action by people arrested and then detained at police station – whether initially lawful detention became unlawful after delay in bringing accused person before an authorised Justice - EVIDENCE – admissibility and relevance – Local Court charge sheets – whether charge sheets improperly obtained – discretion to exclude improperly obtained evidence – section 13 Criminal Records Act 1991 – section 18 Privacy and Personal Information Protection Act 1998 – Evidence Act 1995, section 138 - EVIDENCE – admissibility and relevance – evidence admitted provisionally – trial judge indicated admissibility would be considered later in reasons – failure of trial judge to later give reasons on admissibility - JUDGMENTS AND ORDERS – statement of reasons for decision – trial judge admitted evidence provisionally on the basis reasons would be given later – failure of trial judge to later give reasons - JUDGMENTS AND ORDERS – statement of reasons for decision – adequacy of reasons – failure to analyse evidence – whether inadequacy of reasons warrants correction on appeal – whether substantial wrong or miscarriage resulted - POLICE – action for wrongful arrest, trespass and other wrongs – assault – whether police used reasonable force in arresting suspect - POLICE – actions for wrongful arrest, trespass and other wrongs – negligence – whether injuries sustained by suspect during arrest resulted from police negligence - WORDS AND PHRASES – “disclose”

LEGISLATION CITED: Bail Act 1978
Crimes Act 1900
Criminal Legislation (Amendment) Act 1992
Criminal Records Act 1991
Customs Act 1901 (Cth)
District Court Rules
Evidence Act 1995
Privacy and Personal Information Protection Act 1998
Summary Offences Act 1988
Supreme Court Rules 1970

CASES CITED: A-G v Associated Newspapers Ltd [1994] 2 AC 238
Bales v Parmeter (1935) 35 SR (NSW) 182
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714
Dun & Bradstreet (Australia) Pty Ltd v Lyle (1977) 15 SASR 297
Foster v Federal Commissioner of Taxation (1951) 82 CLR 606
Michaels v The Queen (1995) 184 CLR 117
Mifsud v Campbell (1991) 21 NSWLR 725
R v Gidlow [1983] 2 Qd R 557
R v Michaels (1993) 70 A Crim R 78
R v Skeen & Freeman (1859) Bell 97; 169 ER 1182
R v Zorad (1990) 19 NSWLR 91
Real Estate Opportunities Limited v Aberdeen Asset Managers Jersey Limited [2007] EWCA Civ 197
Richard Martin Tory v Michael Megna [2007] NSWCA 13
Ruddock v Taylor (2003) 58 NSWLR 269
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Weiss v The Queen (2005) 224 CLR 300
Williams v The Queen (1986) 161 CLR 278
Zaravinos v State of New South Wales (2004) 62 NSWLR 58

PARTIES: Nakhl Nasr - Appellant (40972/05)
George Nasr - Appellant (40973/05)
State of New South Wales - Respondent (40972/05 & 40973/05)

FILE NUMBER(S): CA 40972/05; 40973/05

COUNSEL: T A Game SC; S M McNaughton - Appellants
P W Neil SC; M Hutchings - Respondent

SOLICITORS: Levitt Robinson - Appellants
Crown Solicitor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 13884/01; 4988/03

LOWER COURT JUDICIAL OFFICER: Balla DCJ

LOWER COURT DATE OF DECISION: 28 November 2005

40972/05
40973/05
DC 13884/01
DC 4988/03

BEAZLEY JA
HODGSON JA
CAMPBELL JA
4 MAY 2007

NAKHL NASR v STATE OF NEW SOUTH WALES

GEORGE NASR v STATE OF NEW SOUTH WALES

Judgment

1 BEAZLEY JA: I agree with Campbell JA.

2 HODGSON JA: I agree with Campbell JA.

3 CAMPBELL JA: The appellants, Mr Nakhl Nasr and Mr George Nasr, are father and son. On Thursday, 26 October 2000 they were both arrested by police officers, taken to Burwood Police Station, and held there for around 6½ hours (a little less in the case of Mr Nakhl Nasr) before being released on bail. The charges that had been made concerning each of the men at the time of their arrest were ultimately withdrawn.

4 The appellants each brought an action against the State of New South Wales seeking damages for assault, false imprisonment and negligence alleged to have been committed by police officers at the time of the arrest and subsequent detention of each appellant. The State was sued on the basis (which it accepted) that it was vicariously liable for any tort that the police officers might be found to have committed. Her Honour Judge Balla heard the two actions together, over a period of 17 days from 23 May to 17 June 2005. She gave reasons for judgment on 28 November 2005, pursuant to which a verdict for the defendant was entered in each action. The present appeals are from that decision.

5 There are some uncontroversial facts concerning the incident on 26 October 2000. Ten police officers – Sergeant Craig Bennett, Constable James Taylor, Constable Brett Van Akker, Constable Gavin Dick, Constable Johnny Tadinac, Constable Cathy Gibson, Constable Amanda Bliss, Constable Peter Hilton, Constable Christopher Louis and Senior Constable Simon Telfer – were in Shakespeare Street, Campsie soon after 6:05 pm for a purpose unconnected with the appellants. Constables Gibson and Bliss left briefly. While the other police officers were still there, Sergeant Bennett noticed a truck that was driven by Mr Nasr Nasr (another son of Nakhl Nasr, and a brother of George Nasr). That vehicle was owned by Nasr Tiling Pty Ltd, a company of which both George and Nasr Nasr were then directors. Sergeant Bennett motioned to the vehicle to move towards him. It did so, and Sergeant Bennett indicated for the vehicle to stop, which it did. Nasr Nasr was of the opinion that the police were going to “defect” the vehicle. Soon afterwards, he telephoned George Nasr and asked him to come to Shakespeare Street. George Nasr was at his parents’ home, which was very close to Shakespeare Street. He left immediately to drive to Shakespeare Street, and was followed by his parents in another vehicle.

6 Soon after Nakhl and George Nasr arrived at the scene, each of them was sprayed with capsicum spray by Constable Taylor, and arrested.

7 Nakhl Nasr was charged with affray (Section 93C(1) of the Crimes Act 1900), refusing to comply with a direction given by a police officer in accordance with Section 28F(5) of the Summary Offences Act 1988, resisting officers in the execution of their duty (Section 58 of the Crimes Act), hindering Sergeant Bennett, and Constables Taylor and Van Akker in the execution of their duty (Section 546C of the Crimes Act) and carrying a cutting weapon (Section 353B of the Crimes Act).

8 George Nasr was charged with affray (Section 93C(1) of the Crimes Act), refusing to comply with a direction given by a police officer in accordance with Section 28F(5) of the Summary Offences Act 1988, resisting officers in the execution of their duty (Section 58 of the Crimes Act), and hindering Sergeant Bennett, and Constables Taylor and Van Akker in the execution of their duty (Section 546C of the Crimes Act).

9 Her Honour’s rejection of the appellants’ case was in large measure attributable to her preferring the evidence of the various police witnesses to the evidence of the appellants, and of their niece/cousin Maggie Nasr. The appellants submit that there were errors in the process by which her Honour came to those views about credibility that significantly undermine the credibility findings.

Position of Nasr Nasr’s Vehicle, Speed of Nasr Nasr’s Driving and Other Events Before Appellants’ Arrival

10 Her Honour said, concerning evidence about events at Shakespeare Street shortly before Nakhl and George Nasr arrived on the scene:

“There was lengthy evidence and detailed submissions from counsel for the plaintiffs as to the position of Nasr Nasr’s vehicle, the speed at which Nasr Nasr must have been driving and the sequence of the following events. I am not persuaded that any of these matters are relevant in any way to any issue to be determined by me.”

11 The appellants submit as their first ground of appeal, that her Honour should have considered that evidence expressly in her judgment, because of the light that it throws upon the credibility of Constable Van Akker and Sergeant Bennett.

12 Nasr Nasr gave evidence that he stopped the truck he was driving at the time on the corner of Brighton Avenue and Shakespeare Street to talk to his cousin Maggie whom he had seen on the footpath there. He took his seatbelt off while he was parked there. A policeman, who he saw in Shakespeare Street, signalled him to come forward, so he drove the vehicle slowly, in “just a normal way of driving a vehicle” up to the police officer, and stopped in front of him. The police officer asked for his licence, and asked him to step out of the truck, and while he was stepping out of the truck the door was slammed on his feet.

13 By contrast, the evidence of Constable Van Akker and Sergeant Bennett created a picture of the truck being parked at the corner, being called up, the driver revving the motor as the truck approached, Sergeant Bennett having some doubt about whether the driver would stop, and the driver then stopping abruptly. According to them, the driver flung the door of the truck open, and the door struck Constable Van Akker in the thigh. Even before opening the door, according to these two police witnesses, the driver had declined to produce his driver’s licence when asked, and told Sergeant Bennett “you’ve started a war now”. After getting out from his vehicle, the driver repeated his statement about starting a war, and when told to calm down said “you [expletive]s have started a war now. You don’t know what you’ve started”.

14 Nasr Nasr, in cross-examination, had denied saying anything to a police officer about having started a war, and had denied each of the various incidents recounted by Constable Van Akker and Sergeant Bennett.

15 It was a common theme in the evidence that it was very soon after Nasr Nasr pulled up where the police indicated he should pull up that he used his mobile phone to telephone George Nasr.

16 Her Honour referred to there being “an issue as to whether Nasr Nasr had said to the police, before the plaintiffs arrived, “you [expletive]s have started a war now”.” Concerning that, she said:

“In view of my findings below as to the reliability of the evidence of the defendant’s witnesses, I am satisfied that the words were said.”

17 The appellants’ second ground of appeal relates to this finding. They allege that it is erroneous, because her Honour failed to have regard to the evidence of Nasr Nasr on the topic, and failed to have regard to another piece of evidence from Sergeant Bennett, which the appellants submitted bore upon the probabilities of Nasr Nasr having said those words.

18 The third ground of appeal is that it is the combined effect of the alleged errors in the first and second grounds that her Honour’s credibility finding concerning the appellants’ witnesses by comparison with the police witnesses was affected by error, and that that error infected her entire disposal of the case.

Tests for Adequacy of a Judge’s Reasons

19 In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 McHugh JA said:

entirely

Connell v Auckland City Council

Wright v Australian Broadcasting Commission

Ex parte Powter; Re Powter

Wright v Australian Broadcasting Commission

Iveagh (Earl) v Minister of Housing and Local Government

Tribunals and Inquiries Act

“… The whole purpose of the enactment is to enable the parties and the courts to see what matters he has taken into consideration and what view he has reached on the points of fact and law which arise.”

R v Associated Northern Collieries Ltd

“… that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability.””

20 In Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Samuels JA (with whose reasons Clarke JA agreed on this point) said:

“… it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.

Connell v Auckland City Council

21 In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 Meagher JA said:

North Sydney Council v Ligon 302 Pty Ltd

North Sydney Council

Selvanayagam v University of the West Indies

Rajski v Bainton

22 Not every matter concerning which a trial judge could have given better or more extensive reasons involves the type of error that warrants correction on appeal. As Meagher JA said in Beale at 444,

“It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.”

23 That view can also be arrived at by recalling that the appropriate form of appellate intervention when there has been the type of failure to give reasons that warrants correction on appeal, is an order for a new trial – failure to give adequate reasons is not the sort of error that a Court of Appeal is capable of correcting for itself. Part 51 Rule 23 Supreme Court Rules 1970 provided:

“The Court of Appeal shall not order a new trial:

(a) on the ground of … error of law,

… or

(d) on any other ground,

unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned.”

24 I quote the rule in that form to make clear that, whether a failure of a judge to give adequate reasons is an error of law or not (cf Beale at 444), it should be corrected by the Court of Appeal only if that error has caused some substantial wrong or miscarriage.

25 In Richard Martin Tory v Michael Megna [2007] NSWCA 13 at [28]-[30] Spigelman CJ (with whom Beazley and Bryson JJA agreed) said:

Civil Procedure Act 2005

“56(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Court must seek to give effect to the overriding purpose … when it interprets a provision of the Act or any of the rules.”

Supreme Court Rules

Uniform Civil Procedure Rules

Supreme Court Rules

Uniform Rules

30 Accordingly, when interpreting the words “substantial wrong or miscarriage” in Pt 51 r23, this Court is required by s56(2) to “give effect to the overriding purpose”. Where the Court is concerned with a word of such elasticity as “substantial” there may be more scope for applying s56(2) than would be the case in other interpretative contexts.”

26 The manner for the Court of Appeal to apply Part 51 Rule 23 was explained in Tory at [41]:

Freeman v G J Coles & Co Ltd

“What has to be looked at is the essential justice of the case and for the appellate Court to see whether the error of the judge, if there was one, really bore upon the ultimate result”.

Amalgamated Television Services Pty Ltd v Marsden

27 In Tory, at [45]-[46], Spigelman CJ quoted what the High Court had said in Weiss v The Queen (2005) 224 CLR 300 at [35]-[42] (314-316) concerning the proviso on a criminal appeal, and held that that reasoning should be adopted for the purpose of Part 51 Rule 23. With the modifications that are needed to take account of the fact that in the present case the appeal is from a judge sitting alone rather than from a judge and jury, and that the standard of proof is the civil standard, the following portions of paras [39] and [41] (224 CLR 300 at 315-316) of the judgment in Weiss are presently applicable:

“First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. …

Driscoll v The Queen

R v Storey

Morris v The Queen

M v The Queen

Festa v The Queen

Fox v Percy

Did the Judge Err?

28 In my view, the position of Nasr Nasr’s vehicle, the speed at which Nasr Nasr must have been driving, and the sequence of subsequent events up to the time that George Nasr arrived on the scene were not in themselves topics of a kind that could be described as “important or critical to the proper determination of the matter”. Nor is evidence on those topics evidence “critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge.” It is true that it was contrary to some of the evidence of Constable Van Akker and Sergeant Bennett, but that evidence itself was not, in my view, critical to an issue in the case. The issues in the case all related to the manner in which the appellants had been dealt with by the police, and her Honour was entitled to take the view, in the circumstances of this case, that resolving the question of whether the appellants’ causes of action were made out did not require her to decide disputes about events that had happened before the appellants came to Shakespeare Street.

29 The topic of whether Nasr Nasr had said anything about starting a war was not itself one of the matters in issue in the elements of the appellants’ cause of action. Nor was it evidence critical to an issue in the case, in the sense of an issue that was important to whether an element in a cause of action or of a defence had been proved.

30 Even though her Honour referred to there being “an issue” about whether Nasr Nasr had said to police words about having started a war, there are several senses in which some matter about which there is disagreement can be an “issue”. One sense is that the issues in the case are those matters which are themselves elements of a plaintiff's cause of action, or a defendant's defence. It is in this sense that one says that the pleadings define the issues in a case. Another sense is that it is a matter concerning which there is disagreement at a trial, the resolution of which can bear upon the probabilities of one or more of the elements of a plaintiff's cause of action, or a defendant's defence, being made out. Issues in this second sense can be of varying degrees of relevance to the issues in the first sense. If in any case there is an issue in the second sense that is not of a sufficiently high degree of relevance to the issues in the first sense, evidence going to that issue does not count, it seems to me, as "evidence critical to an issue in the case", within the meaning of that expression in the extract quoted above from Mifsud v Campbell, nor does it count as "conflicting evidence of a significant nature", within the meaning of the extract quoted above from the Beale. In such a case a judge is not failing in his or her duty to give reasons if there is no express consideration of the evidence going to that matter.

31 This is borne out by the particular facts that were under consideration in those two cases. In Mifsud the litigation concerned a collision between two motor vehicles, one driven by the plaintiff and the other driven by the defendant. There were no independent eyewitnesses to the collision, and there was no conclusive evidence to establish a point of impact. The defendant had succeeded at trial, because the trial judge accepted the defendant's evidence about the speed and manner in which the defendant had been driving, and that he had not consumed alcohol. There was other evidence, that a person who came on the scene immediately after the accident found that a strong smell of alcohol came out of the defendant's car, that the defendant almost immediately fled from the scene, and the defendant could give no explanation of why are there was a smell of alcohol in his vehicle. The Court of Appeal ordered the new trial because the judge had not considered this evidence, nor the conflicting evidence about the point of impact. One can readily understand that the evidence that the trial judge had not considered in that case had a high degree of relevance to the issue that arose on the pleadings about whether the defendant had been driving in a negligent fashion. Beale involved an assessment of damages, in which the trial judge rejected a plaintiff's claim for one particular head of damage concerning long-term physical impairment and work incapacity, without considering the evidence of three witnesses that directly supported this aspect of the plaintiffs claim. Again, this was evidence that had a high degree of relevance to an issue on the pleadings.

32 Thus, the fact that her Honour referred to there being "an issue" about whether Nasr Nasr had said anything about starting a war is not determinative of whether she should have given any more extensive reasons than she gave concerning that matter. That matter was not totally irrelevant to the issues (in the first sense), but had the status of a scene-setter to events that were far more important to those issues.

33 The only references that her Honour made to the evidence of Nasr Nasr in her judgment are those I have identified at paras [10] and [16] above. It could not, however, be said that her Honour had overlooked the evidence of Nasr Nasr, because she explicitly said that in her view the evidence on some of the topics on which it was given was not relevant. Nor would I infer that the evidence of Nasr Nasr about the various “starting a war” allegations was overlooked – her Honour is hardly likely to have referred to there being “an issue”, and gone to the trouble of making an express finding about whether those words were said, unless she was conscious that there was disagreement about whether they had been said. Further, her Honour gave the reliability of the evidence of the defendant’s witnesses as her reason for making that finding. It is hardly likely she would have given that reason if she had not been aware that the evidence contained contradictory accounts of the event, concerning which the reliability of the evidence of the witnesses on one side could be a reason for prefering the evidence given by the witnesses on that side.

34 While her Honour did not, at the stage of her reasons for judgment at which the findings now in question were made, give any reasons for the reliability of the two police witnesses, she makes clear, by her reference to “my findings below”, that her reasons were to be found in later parts of the judgment, in which reasons are given for preferring the police evidence to other evidence concerning topics of central importance to the appellants’ causes of action.

35 There was a stark contast between the evidence of the two police witnesses and that of Nasr Nasr on those topics, and a stark contrast in evidence can sometimes cast light on the credibility of the witness or witnesses who give one version of the story, even if the evidence is on a topic different to those that make up elements of a cause of action or defence. But the evidence about what happened before George Nasr arrived is not of that type. There were ample other opportunities to test the evidence of Constable Van Akker and Sergeant Bennett, and the evidence of Nasr Nasr does not appear to be particularly strong. Very early in his evidence-in-chief, Nasr Nasr said that his memory of the events of the day in question was:

“A. A bit poor. It’s been five years.

36 Nasr Nasr also gave some evidence about the circumstances of the incident that led to the arrest of the appellants. His evidence-in-chief, taking up the story from when his parents arrived at the scene, includes:

…

37 His cross-examination was replete with answers, when questions were put to him, that he could not remember, or did not know. When the evidence of Nasr Nasr was based solely upon his recollection, and the status of his recollection was as exhibited in the passages of evidence just quoted, it was not appellably wrong for her Honour to not make an explicit decision comparing his evidence to that of Constable Van Akker and Sergeant Bennett, and deciding between them.

38 The appellant particularly criticises the failure of her Honour to refer to the following passage in the cross-examination of Sergeant Bennett.

39 However, six questions before then, Sergeant Bennett had given evidence:

40 I do not see this evidence as inconsistent with Sergeant Bennett’s earlier evidence about the circumstances in which he came to stop Nasr Nasr’s vehicle, or with his evidence that Nasr Nasr referred to Sergeant Bennett (or perhaps the police collectively) starting a war, of a kind that was so important that the trial judge should have regarded it as casting doubt on the overall credibility of Sergeant Bennett. Read as a whole, these passages in the evidence of Sergeant Bennett are quite capable of being read as being consistent with each other. There was no exploration in the evidence of what Sergeant Bennett had meant when he had, on 4 December 2001, described the situation as “a nothing situation”. Clearly it did not mean that nothing at all was happening. It was not explored whether, by the expression, Sergeant Bennett meant that nothing out of the ordinary was happening, or nothing that he felt he could not handle was happening, or nothing that alarmed him was happening, or that nothing comparable to the melee that later developed was happening, or something else. The picture that the police evidence presented was one of a potentially violent situation prior to the arrival of George Nasr, that was not actually volatile at that time, but that became volatile upon George Nasr’s arrival. The evidence of Sergeant Bennett that I have quoted above does not, in my view, detract from that overall picture. Nor is it inconsistent with Nasr Nasr (who at that time was with no obvious allies – though other people who were not police officers were nearby – at a location where eight police officers were present) having made remarks about police having started a war.

41 I am not satisfied that the first three grounds of appeal are made out.

Failure to Analyse Evidence About Scratching of Constable Taylor’s Neck

42 Mrs Elmazer Nasr is the wife of Nakhl Nasr. She arrived on the scene at the same time as Nakhl Nasr. She was not called to give evidence about the course of events at the scene after her arrival.

43 With the forensic aim of undermining her Honour’s acceptance of the police witnesses, the appellants submitted that her Honour had not adequately considered the evidence of various different police officers concerning the time at which Elmazer Nasr came to scratch the neck of Constable Taylor. The appellants submit that the police evidence is inconsistent on that topic. Her Honour’s failure to consider that inconsistency, the appellants argued, in particular undermined the evidence of Constable Taylor.

44 One of the factual findings made by her Honour is to the effect that it was immediately after Constable Taylor sprayed George Nasr and Nakhl Nasr that Elmazer Nasr scratched the side of Constable Taylor’s neck. Her Honour did not make a finding in precisely those words – rather, her judgment included a series of dot points, each of which set out a fact that she found in relation to the incident. It is reasonably clear, however, that her Honour was intending to arrange those dot points in chronological order, and the dot point in which she refers to Elmazer Nasr scratching the side of Constable Taylor’s neck occurs immediately after the dot point in which she refers to Constable Taylor spraying George Nasr and Nakhl Nasr.

45 Various of the police officers who were present at the incident prepared written statements soon after the incident. Those statements were admitted into evidence. Constable Taylor’s statement, made on 27 October 2000, clearly places the scratching incident immediately after the spraying of George and Nakhl Nasr.

46 Another police officer who was present at the time the appellants were sprayed is Constable Amanda Bliss. Her statement, made on 31 October 2000, gives an account:

“Cst Taylor has then sprayed the defendants, George Nasr and Nakhl Nasr in the face area. The defendant, Elmazer Nasr has then struck out towards Cst Taylor and scratched him to the left hand side of his neck.”

47 Other police officers present at the time – Constable Van Akker, Constable Gibson, and Constable Telfer – also made statements, within days of the event, that related that Elmazer Nasr had scratched Constable Taylor’s neck immediately after the spraying had occurred.

48 Sergeant Bennett’s statement of 27 October 2000 refers to Elmazer Nasr, immediately before the spraying, “swiping with her open hands towards at Constable Taylor’s face and neck”. Sergeant Bennett, in that statement, gives no account of ever seeing Elmazer Nasr actually scratch Constable Taylor.

49 Constable Leith Kennedy arrived on the scene at 6:16 pm, after the spraying had occurred. In his statement made on 1 November 2000 he gives an account whereby, immediately he arrived, he assisted Sergeant Bennett in handcuffing a person. At that time there were three people in the rear of a caged police vehicle in Shakespeare Street. His statement continues:

“During all this my attention was drawn to the defendant Elmazer Nasr who was walking around and around the area. Numerous police directed her to move on and to leave. Despite this she yelled and screamed at police and in another language to others present. I saw Constable Taylor, Gibson and Bliss approach the defendant Elmazer Nasr. I saw Constable Taylor trying to take hold of her left elbow.

Constable Bliss said, “You have already been told many times to leave the area. Do it now”.

The defendant Elmazer Nasr said, “Fuck off, don’t you fucking touch me”.

She yelled in a foreign language and was waving her arms wildly in the air. I saw one of her arms connect with Constable Taylor’s neck or face.

Constable Taylor said, “Look you did this to my neck”

The left side of Constable Taylor’s neck was bleeding.

Constable Taylor said, “I’m not going to arrest you if you leave now alright”.”

50 When Sergeant Bennett was cross-examined concerning the timing of the scratching, his evidence was:

Q. Can I put a couple of things to you to assist you, sergeant. On 4 December 2001, page 23 line 23:

Then, moving on to page 33:

Would that be about your recollection now?

A. I can’t recall. It’s five years later. My best recollection is in the statement, if I can refer to that.

51 To understand the reference to the “dog incident” in that evdience, it was part of the account given by various police officers that, very soon after the appellants had been sprayed, a man with a pit bull terrier that was behaving agressively approached Constable Taylor, and was also sprayed by him. While that dog reappeared at later times in the police account, its first appearance was after the spraying of the appellants had occurred.

52 Sergeant Rowland McGready also came onto the scene at a time when Nakhl Nasr and George Nasr had already been arrested. In cross-examination he gives evidence to the following effect.

53 The appellants submit that the evidence in cross-examination of Sergeant Bennett, the evidence in the statement of Constable Kennedy, and the evidence in cross-examination of Sergeant McGready all point to the scratching incident having occurred at a later time than Constable Taylor, and the various other police witnesses I have mentioned in para [47] above, said it occurred.

54 In assessing that submission, it is important that Constable Taylor’s statement also refers to an incident, after the spraying of the appellants had occurred, and after the pit bull terrier was on the scene, in which Elmazer Nasr,

“.. waved her arms around theatrically and yelled in Arabic.

I said, “Look you did this to my neck.”

I pointed to the lacerations on my neck.

I said, “I’m not going to arrest you if you leave now alright.”

The Defendant Elmazer Nasr raised both of her arms before her and lunged at my chest, pushing me forcefully with the palms of both her hands.

I said, “You are under arrest for assault Police.”

55 Neither Constable Van Akker nor Constable Telfer give any account at all of the arrest of Elmazer Nasr. Constable Gibson’s statement says that, immediately before Elmazer Nasr was arrested, she:

“… began to wave her arms around in the air, screaming swearing in English and also speaking in a language not know[n] to myself.

Cst Taylor said, “Look, you did this to my neck” and at the same time Constable Taylor was indicating to some scratch marks that were on his neck which were inflicted by the defendant.”

56 I do not regard the evidence of Sergeant Bennett, Constable Kennedy and Sergeant McGready as casting any significant doubt on the accuracy of Constable Taylor’s account of when the scratching occurred. While they all gave evidence of seeing Elmazer Nasr behaving violently towards Constable Taylor, at a time well after the spraying of the appellants had occurred, none of them says that they saw her scratch him in the course of that violent behaviour. Constable Kennedy’s statement that he “saw one of her arms connect with Constable Taylor’s neck or face” is not saying that he saw her scratching his neck. Nor is the cross-examination of Sergeant Bennett and Sergeant McGready saying that either of them saw her scratching Constable Taylor’s neck. Constable Taylor’s own statement refers to the occasion immediately before the arrest of Elmazer Nasr when she attacked him a second time, immediately after which he drew attention to the lacerations that were already on his neck. On a fair reading of the evidence, the incident that Constable Kennedy, Sergeant McGready and Sergeant Bennett were referring to was the second attack referred to by Constable Taylor, not the first.

57 The appellants submit that it was all the more important for her Honour to consider the evidence of Sergeant McGready and Constable Kennedy in assessing the reliability of Constable Taylor and other police witnesses, particularly when a recurring theme of the appellants’ cross-examination and submissions at the trial was that the various police officers had not each prepared a statement totally independently of the other police officers.

58 Her Honour gave express consideration to that submission in her reasons for judgment, saying:

“… I accept the explanation offered by the police officers. The effect of that evidence was that they met because the events had occurred over a short period, they needed to collectively work out the order of events that had taken place and to work out collectively who had been involved in what and who had arrested whom. Each of them denied simply copying from Constable Taylor’s statement and said that if there was something in his statement that he or she recalled, it was put in their statement.”

59 In these circumstances I am not satisfied that there is any appealable error in her Honour’s failing to expressly mention and consider the evidence of Sergeant Bennett, Constable Kennedy and Sergeant McGready in coming to her finding that Elmazer Nasr scratched Constable Taylor’s neck prior to the arrest of George and Nakhl Nasr.

Was the Detention of the Appellants Unreasonably Long?

60 Whether the appellants were detained for an unreasonably long time at the police station was relevant to their causes of action in two different ways. First it was relevant to their action for false imprisonment. Even if their initial detention had been lawful, it could have become unlawful at the time when they commenced to have been detained for an unreasonably long time: cf Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714; Ruddock v Taylor (2003) 58 NSWLR 269. Second, it was relevant to their claim for negligence relating to the manner of their detention.

Time of Arrival at Police Station

61 The appellants were arrested at 6:14 pm, in Shakespeare Street. They were taken to the Burwood Police Station. Her Honour found that they arrived there at about 7:00 pm.

62 The appellants submit that they arrived around 6:45 pm. The basis for that submission is some evidence of Inspector Mitropoulos, an officer who was present at Burwood Police Station on the night in question. His evidence (in cross-examination) on that topic was:

…

63 The custody management records in relation to each of the appellants, completed at Burwood Police Station, record their time of arrival as 7:00 pm. Even though that custody management record was completed some time later, I am not persuaded that her Honour was in error in preferring the written record to Inspector Mitropoulos’ acceptance, years after the event, of a timing put to him in cross-examination.

Events After Arrival at Police Station

64 Her Honour’s findings concerning events after arrival at the police station are:

Crimes Act 1900

Nakhl Nasr was discharged from the police station at 1:15 am on 27 October 2000 and George Nasr was discharged 1:30 am.”

65 Each of those discharges occurred at the time that the respective appellants signed bail undertakings, whereby each of them undertook to appear, in respect of the offences with which they were charged, at Burwood Local Court on 21 November 2000.

66 Her Honour found that:

“A number of other people were arrested at the scene and taken to Burwood police station. There were 24 people in custody at the police station on the evening.”

67 While that finding of her Honour is not attacked, it does not have as much specificity as the evidence would have justified. A total of nine people were arrested during the incident at Shakespeare Street, and taken to Burwood Police Station. Elmazer Nasr was issued with four Field Court Attendance Notices and was not charged at the police station. However the other eight people arrested at Shakespeare Street were all taken to the police station and in due course charged.

68 At the time the appellants arrived at Burwood Police Station, there were already three other people there in custody. Of the group of eight who arrived together from Shakespeare Street, it was the appellants who were released from custody first. The records in evidence identify another four people as coming into custody in the time between when the appellants arrived at the police station, and the time they were released.

69 On the basis of her findings about the events at Burwood Police Station on the night in question, her Honour found there had been no unreasonable delay in releasing the appellants.

Law on Time an Arrested Person Can Be Detained

70 At the time that the appellants were arrested, section 352 Crimes Act 1900 conferred a power of arrest. So far as presently relevant, that section then provided:

Person in act of committing or having committed an offence

(1) Any constable or other person may without warrant apprehend,

(a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act,

(b) …

and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law.

(2) Any constable may without warrant apprehend,

(a) any person whom the constable, with reasonable cause, suspects of having committed any such offence,

(b) …

and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law.

(5) In this section:

authorised Justice

(a) a Magistrate, or

(b) a Justice employed in the Department of Courts Administration.”

71 Section 352 “… has not been regarded in New South Wales as substituting its provisions for the common law, but as reinforcing the common law principles.”: Zaravinos v State of New South Wales (2004) 62 NSWLR 58 at 67, [26].

72 Section 352(5) had been inserted in the form quoted above by the Criminal Legislation (Amendment) Act 1992 to clarify a question that the Court of Criminal appeal had considered in R v Zorad (1990) 19 NSWLR 91 at 98-99 concerning whether the previous provision in section 352 requiring the arresting officer to take the arrested person before a "justice" required the arresting officer to take the arrested person before a police officer who had power to grant bail.

73 In Bales v Parmeter (1935) 35 SR (NSW) 182, Jordan CJ said, at 189:

Clarke v Bailey

74 Section 17 Bail Act 1978 confers upon certain police officers power to grant bail in accordance with that Act to an accused person who is present at a police station, unless that person has been arrested pursuant to a warrant.

75 Section 18 Bail Act 1978 provides:

Determination as to bail to be made after charge laid

(1) Where a person is charged by a police officer with an offence and the person is in custody, the proper officer shall, as soon as reasonably practicable:

(a) give the accused person such information in writing respecting the person’s entitlement to or eligibility for bail as is prescribed by the regulations and sign an acknowledgment in the prescribed form that he or she has given the accused person the information, and

(b) if the proper officer is:

(i) authorised to grant bail—determine whether or not bail should be granted to the person or bring the person or cause the person to be brought before a court, or

(ii) not authorised to grant bail—bring the person before a court or an authorised officer.

(2) The authorised officer before whom a person is brought pursuant to subsection (1) (b) (ii) shall, as soon as reasonably practicable, determine whether or not bail should be granted to the person or bring the person or cause the person to be brought before a court.

(3) In this section:

(a) a reference to the proper officer is a reference to:

(i) subject to subparagraph (ii)—the police officer who laid the charge against the accused person, or

(ii) where it is not reasonably practicable for the police officer referred to in subparagraph (i) to perform the duties prescribed by subsection (1)—the police officer for the time being in charge of the police station at which the accused person is in custody or, if the person is not in custody at a police station, a police officer who has custody of the person, and

(b) a reference to bringing a person before a court is a reference to bringing the person before a court for the purpose of having the court exercise its powers in relation to bail or for the purpose of the person being dealt with otherwise according to law.”

76 In Williams v The Queen (1986) 161 CLR 278 the High Court held that the Tasmanian equivalent of section 352 Crimes Act gave no power to question an arrested person about the offence for which he had been arrested or other offences, and did not make justifiable a delay which resulted only from the fact that the arresting officer wished to question him. That situation had been modified, at the time of the events in question in this case, by Part 10A Crimes Act 1900, which conferred on the police certain limited power to detain a person who is under arrest for the purpose of certain investigations, and to that extent to delay the bringing of that person before a justice. Part 10A does not enter into consideration of the present case, for two reasons. The first is that it was not reasonably practical to bring the appellants before an authorised Justice in the period between their arrest at 6:14 pm and their eventual release at 1:15 am and 1:30 am of the following morning so no practical question arose of their having been delayed, by police investigations, in being brought before an authorised Justice. The second is that no investigation was carried out in the time that the appellants were detained at the police station so no occasion for the operation of Part 10A arose.

77 It was a consequence of the common law, as re-enacted in section 352 Crimes Act, that if a person was arrested after the hours during which courts sit, that person could be detained overnight until it was reasonably practicable to bring that person before the court – which would be, usually, first thing the next day. In operating that way, section 352 recognised that the duty to bring the arrested person “before an authorised Justice to be dealt with according to law” was one imposed on the arresting constable, and that the hours during which an authorised Justice was available conditioned what was reasonably practicable for the arresting constable to do in performance of that duty. Thus, in Williams, Wilson and Dawson JJ expressly recognised, at 313 that:

“What is reasonable will depend upon all the circumstances, including the availability of a justice … “

78 Similarly, Gibbs CJ, at 283, said:

“… what is reasonably practicable in a particular case is a question of fact. The answer to that question will depend on, amongst other things, the time when, the place in which and the conditions under which the arrest was made. It will be necessary to consider when and where a justice could have been found, whether police officers and transport were available and how long it would reasonably have taken for the necessary paperwork to be completed.”

79 Gibbs CJ went on to give examples of other factors that might influence what counted as a “reasonable time” that might have extended beyond what the majority in Williams would have approved, but the passage I have quoted seems to me to be consistent with the views expressed by other judges in Williams.

80 Section 18 Bail Act adds to the obligation of the arresting constable to bring the arrested person before an authorised Justice without unreasonable delay, an obligation on “the proper officer” to take the steps required by section 18 to enable a decision to be made about whether the charged person should be granted bail. If performance of the section 18 obligation results in the arrested person being freed after being granted bail, the obligation on the arresting constable to bring the arrested person before an authorised Justice ceases.

Error in Failing to Consider Each Appellant Separately?

81 The appellants submit that her Honour was in error in not posing the test of reasonableness in respect of each of the appellants separately, but rather “assessing the situation globally”. They criticise her for failing to consider for how long the solicitor for the appellants, Mr Hodges, spoke to each of them individually, rather than noting (as her Honour did) his overall stay of about two hours from 8:00 pm speaking with “the plaintiffs, members of their family and the police”. They draw attention to Mr Hodges’ evidence that he spent half an hour representing the interests of George and Nakhl Nasr at the police station.

82 The submission continues:

“Further, the search and photographing of the appellants would not have taken hours to conduct, nor should the charges and facts sheets in relation to the appellants have taken hours to prepare. The review and acceptance of the charges by the custody manager for the appellants likewise should not have taken hours.

Her Honour noted that there were 24 people in custody at the police station on the evening. The appellants contend that that was not a consideration which should have affected her Honour’s consideration of reasonableness. The proposition can be tested by posing the question that if there had been one hundred people in custody would a period of 20 hours have been reasonable to keep the appellants in custody? Clearly that question must be answered ‘no’. … If the resources of the police were not sufficient to cope with the large number of people in detention on that evening at Burwood then it was incumbent upon the police to bring in more resources, just as they did at the scene of the incident in Campsie.”

83 I do not accept those submissions. I do accept that when the court is considering whether more than a reasonable time passed before an arrested person was released on bail the court makes that decision in relation to each arrested person that is in question. To that extent, it is not appropriate to "assess the situation globally" concerning a group of people who are arrested together. However, it seems to me that what her Honour has done is to not regard there as being any factors that affected one appellant’s situation but not the other’s. On the appeal, counsel for the appellants has not sought to point to any such factors that affected one rather than the other, apart from the health of Nakhl Nasr, which I will consider separately below.

84 The transcript of Mr Hodges’ evidence shows that there was in no way any attack on his credibility or reliability. While he estimated that the time he spent representing the interests of George and Nakhl Nasr at the police station was probably half an hour, he also said that "that period was probably spread out over the entire two hours that I was there." He also gave evidence that he advised other members of the Nasr household or family whilst he was there. The members of the Nasr family who were at the police station that night included not only the appellants and Elmazer Nasser but also Ibrahim Nasr who was arrested at Shakespeare Street, and Antonios (or Tony) Nasr, who was arrested at the police station in connection with his conduct there. If Mr Hodges’ tasks in relation to the appellants were spread over the two-hour period he was there, her Honour was not in error in taking into account two hours as being the time that elapsed while he was carrying out functions that should properly be taken into account in deciding whether the appellants were detained for an unreasonably long period.

85 The submission that searching, photographing, allowing time for consultation with a solicitor, preparation of charges, preparation of fact sheets, and review and acceptance of the charges should not have taken over six hours is a submission that presupposes that the reasonableness of the time of detention of each appellant should be assessed on the basis that the police officers involved, acting reasonably, ought to have devoted time and attention to procuring the release of each appellant as promptly as was practicable, regardless of any other demands upon their time and attention. That presupposition is incorrect.

86 The obligation that is imposed by section 18 Bail Act is not an obligation imposed upon police officers generally. Rather, so far as any particular person in custody is concerned, it is an obligation imposed upon the particular person who is “the proper officer” at the time in question. What is reasonably practicable for that officer depends in part upon what resources are available to that officer at the time in question, and what other demands there are upon the time and attention of that officer, and the relative urgency of those demands.

87 Such an approach is evident in the decision of Allen J (with whom Smart and Levine JJ agreed) in the NSW Court of Criminal Appeal in R v Michaels (1993) 70 A Crim R 78, at 81-2 concerning the obligation to take the arrested person before a Justice:

“It is appropriate that documentation be prepared so that the magistrate can deal with bail when the arrested person appears before him. Questions as to the availability of transport, consideration as to court sitting hours and as to when it can be reasonably anticipated that a magistrate would be able to deal with the matter, are all considerations necessary to be taken into account. Indeed, duties which police have, apart from matters relating to the person in custody, are not immaterial. If, for example, while the accused is in custody a serious riot breaks out requiring the immediate attendance of all available police from the relevant station in order to save possible loss of life, then that obligation on the police to protect life would have to take precedence to a reasonable extent over the speed at which an arrested person is to be brought before a court. All considerations, however, must be viewed in the context of the high importance which the common law and its statutory equivalents place upon the liberty of the subject.”

88 An appeal from that decision was dismissed, without any adverse comment on this passage: Michaels v The Queen (1995) 184 CLR 117. While that case concerned a power arising under section 212 of the Customs Act 1901 (Cth) enabling an arrested person to be detained “until such time as he can without undue delay be taken before a Justice” the joint judgment of Brennan, Deane, Toohey and McHugh JJ said, at 123:

a

of the Justices Act 1959

Criminal Code

Williams v The Queen

89 If, having made those remarks, their Honours had been of the view that Allen J had taken too wide a view of what could be relevant circumstances it would be surprising if they had not said so. In my view, just as external constraints on an arresting police officer, like when a Justice is available, and other demands on his time, or lack of resources, are taken into account in deciding whether the arrested person has been brought before an authorised Justice in a reasonable time, so such factors can be taken into account in deciding whether the proper officer has taken the steps required by section 18 Bail Act as soon as reasonably practicable.

90 It might sometimes happen that the resources available to a proper officer, at the time concerning which a question arises about whether that officer has done what was reasonably practicable in complying with section 18, include the possibility of diverting manpower from other places or tasks. It is a question of fact in any case whether other manpower was available to be diverted, if called for, and whether the procedures that needed to be gone through in processing any particular arrested person are such that the allocation of extra manpower would in fact have speeded up their processing. Inspector Mitropoulos was the senior officer present at the police station on the night in question, and Sergeant Drakos was, of the two custody managers on duty at the police station that evening, the one who had responsibility for the appellants. Both of those officers gave evidence. There was no cross-examination of either of them as to the practicability of speeding up the processing of the appellants, in the circumstances, by obtaining more manpower. Nor was there any other exploration in the evidence of any such possibility. In those circumstances, the point that it was reasonably practicable to call for more manpower, and that if it had been called for the appellants were likely to have been released sooner, is not available on this appeal. There was no attempt made on the appeal to argue that, with the resources available at Burwood police station on that night, and with the totality of the various tasks that the police officers there needed to perform in the course of the night, there was undue delay in releasing the appellants.

91 The custody management record completed in relation to Nakhl Nasr, after his arrival at the police station, recorded that he complained of soreness to the right wrist and right shoulder, and “complains of soreness as a result of arrest”. The appellants rely on those complaints as making unreasonable a delay of more than six hours between his arrival at the police station and eventual release on bail.

92 Those complaints, however, need to be seen in context. Nakhl Nasr did not request the police to provide any medical assistance, nor did George Nasr request medical assistance for his father. Mr Hodges, when asked, had no recollection of seeing any injuries on Nakhl Nasr. Mr Hodges made no complaints to a police officer regarding any assaults committed upon Nakhl Nasr or injuries sustained by him, and sought no form of medical intervention or assistance for his client. A police officer, on his own initiative, requested at 12:13 am that an ambulance attend the police station, even though Naklh Nasr had declined an earlier offer to call an ambulance. When that ambulance arrived at 12:27 am, Nakhl Nasr refused to see the ambulance officer, saying he wanted to see his own doctor. A video taken in the police station that night shows Nakhl Nasr moving without apparent difficulty – though in fairness it should be said that the video was shot from an angle, apparently high up in the room, that does not make observation of such matters as easy as it might be. In my view it has not been shown that the mere fact of the complaints being made, and such opportunities for observation of the medical condition of Nakhl Nasr as the police would have had, were such that, acting reasonably, they should have speeded up his release.

93 This ground of appeal fails.

Alleged Errors Concerning Findings About Nakhl Nasr’s Injuries, and Whether Police Used Excessive Force

94 Her Honour records Nakhl Nasr’s contention that at Shakespeare Street:

“… he had tried to get up but was pushed down by the police who started stepping on him. They put their feet on his head, back and arm and he was stepped on more than twenty times.”

95 Her Honour did not accept that evidence.

96 One factual finding that her Honour made was that immediately after Constable Van Akker told Nakhl Nasr he was under arrest,

“Constable Van Akker attempted to take hold of Nakhl Nasr’s arm, which he pulled away. Constable Van Akker, with other police officers, took Nakhl Nasr to the ground where he was handcuffed.”

97 At the trial, the appellants submitted that excessive violence had been used in the course of the arrest, in that the use of capsicum spray was in the circumstances not justified, and that the police had not done enough to relieve the distress that the use of the capsicum spray caused to the appellants. Those submissions were the principal ones on which the count of negligence had been based at the trial. Her Honour rejected them, and her doing so is not the subject of this appeal.

98 Her Honour then dealt with a submission that excessive force had been used in other ways:

“Counsel for the plaintiffs also submitted that the defendant was negligent in using violence or excessive violence in handcuffing the plaintiffs – in particular Nakhl Nasr who sustained an injury to his wrist. I am satisfied that, on the balance of probabilities this did occur during the handcuffing.

However I accept the submission made by counsel for the defendant that the fact that Nakhl Nasr was injured during the arrest does not mean that excessive force was used. I do not accept that, on the basis of my factual findings, excessive force was used. I am satisfied that, taking all the circumstances into account the steps taken by the police were reasonable and appropriate.”

99 The appellants submit that this passage demonstrates an error on the part of her Honour “in finding that during his arrest Mr Nakhl Nasr only sustained an injury to his wrist”.

100 There was clear evidence before her Honour, in the form of hospital admission records, that Nakhl Nasr was admitted to Canterbury Hospital at 3:27 am on 27 October 2000, after arriving there by ambulance. He was seen by a doctor, at 4:00 am, who recorded a problem of pain in the right arm, neck and back. He was diagnosed with a ruptured biceps tendon, which required surgical repair. That surgery was performed on 28 October 2000.

101 In the years after his arrest, Nakhl Nasr has suffered from medical problems relating to his right knee and back. Prior to his arrest, he had two operations for a back problem (in 1986 and subsequently in 1987), and suffered from disc lesions in the cervical, thoracic and lumbosacral regions. The first complaint he made to any doctor, concerning anything other than his right arm having been injured in the course of the arrest or while in police custody, was on 16 November 2000, when he told Dr Geoffrey Rosenberg, the orthopaedic surgeon who was already treating him in connection with his back problems, that he had suffered an assault at the hands of police, concerning which Dr Rosenberg expressed the view that “the recent assault has stirred his back up and also caused increased symptoms of numbness and discomfort in his leg”. When her Honour found for the respondents on liability, there was no need for her to decide about the correctness of that opinion, or to seek to evaluate what significance, if any, there was in Nakhl Nasr’s failure to complain to any doctor about any injuries other than to his right arm until three weeks after the day of the arrest.

102 The appellants submit that her Honour’s finding that no excessive force was used was based on her erroneous factual finding in relation to the nature of the injury. The particular injury that they submit her Honour should have considered, but did not, was the rupturing of the biceps tendon, which was reported to the hospital of the order of two hours after his release from the police station.

103 I simply do not read the portion of her Honour’s judgment quoted at para [98] above as a finding by her Honour that the only injury sustained by Nakhl Nasr in the course of his arrest and police custody, was an injury to his wrist. Rather, her Honour makes specific mention of the injury to the wrist in connection with the submission that handcuffing itself involved an unreasonable application of force that had caused a specific type of injury, namely to the wrist.

104 The question of whether excessive force was used in the course of an arrest depends upon an assessment of the situation that confronted the arresting officer at the time. Evidence about any injuries actually sustained by the arrested person can sometimes be relevant to the amount of force that was applied, or to the types of stresses or contortions his or her body would have had to undergo to sustain injuries of that type. In the present case, however, there was no medical evidence to the effect that a rupturing of a biceps tendon could only occur if some particular degree of force was applied, or some unusual bodily manipulation engaged in. The evidence of the police witnesses, that her Honour accepted, created a picture of Nakhl Nasr yelling at the police, waving at least one of his arms, ignoring a police direction to leave, and walking towards Constable Taylor at the same time as George Nasr “shaped up to Constable Taylor, raising his fists into a boxing stance”. According to the police evidence that her Honour accepted, even after the appellants were warned not to come any closer or they would be sprayed, they continued to advance.

105 Even if one assumes that the tear to the biceps tendon of Nakhl Nasr occurred at the time of arrest, the most likely time for it to have occurred is when Constable Van Akker was attempting to take hold of Nakhl Nasr’s arm, which he pulled away, or in the course of him subsequently being brought to the ground. Even if it were the case that the biceps tear occurred at that time, it does not show any error in her Honour’s conclusion that she was not satisfied that excessive force had been used, and that the steps taken by the police were reasonable and appropriate.

Illegally Obtained Evidence?

106 Close to the start of the cross-examination of George Nasr it was put to him that on 13 January 1993 he had been convicted at the Waverley Local Court on a charge of offensive language and two charges of resisting arrest, that he had been fined $200 in connection with the offensive language charge, fined $300 on each of the resisting arrest counts, and that he had been ordered to pay the court costs. He said he did not remember, and volunteered that there were about twenty George Nasrs. He confirmed, however, that 20 July 1965 was his date of birth. After giving this confirmation, he repeated his evidence that he did not remember having been convicted at Waverley Local Court in January 1993.

107 In her judgment, the trial judge referred to this evidence of George Nasr, and said that she did not accept his evidence in relation to that issue. Her Honour’s non-acceptance of his evidence on that issue was a matter that she took into account in forming an overall unfavourable view of his reliability as a witness.

108 The cross-examination was based upon the charge sheets of the Waverley Local Court. At a later point in the cross-examination he said he had once lived at 2 Karuah Street, Greenacre.

109 Those charge sheets were tendered in evidence, on the basis that they amounted to a certificate under section 178 Evidence Act 1995. There was no challenge, either in the court below or in this Court, to whether the charge sheets properly constituted such a certificate. The charge sheets confirmed that a George Nasr, who was a tiler, who had been born on 20 July 1965, and who lived at 2 Karuah Street, Greenacre had been convicted and dealt with in precisely the way that counsel for the Crown had put to George Nasr in cross-examination.

110 Counsel for the appellants objected to the charge sheets being received in evidence. Counsel for the Crown informed her Honour that the documents had been obtained when they were supplied to the Crown Solicitor’s Office by the Waverley Local Court, upon an enquiry being made to that court.

The Alleged

Criminal Records Act

Contravention

111 The basis upon which objection was taken to the tender of the documents arose from two statutes. The first of them is the Criminal Records Act 1991. Sections 7, 8 and 9 made provision for criminal convictions for various offences to become “spent” on completion of a ten-year period after the date of the conviction during which, in broad terms, the person has not been convicted of an offence punishable by imprisonment, not been in prison, and not been unlawfully at large. The various offences that George Nasr had been convicted of on 13 January 1993 were all offences in relation to which a conviction was capable of becoming spent. He had not, during the ten-year period after being convicted of those offences, done any of the things that could cause the ten-year period to not run. Thus, those convictions had each become spent on 13 January 2003.

112 Section 13 Criminal Records Act 1991 provides:

“(1) A person who has access to records of convictions kept by or on behalf of a public authority and who, without lawful authority, discloses to any other person any information concerning a spent conviction is guilty of an offence.

Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.

(2) It is not an offence for the officer in charge of the Criminal Records Unit of the Police Service to make information relating to a spent conviction available to a law enforcement agency or to the holder of an office prescribed by the regulations.

(3) [irrelevant exception]

(4) It is not an offence for a law enforcement agency (or an authorised officer of a law enforcement agency) in the discharge of its duties (or of the authorised officer’s duties) to make information relating to a spent conviction available to another law enforcement agency or to a court in compliance with an order of the court.

(4A) [irrelevant exception]

(5) In this section:

law enforcement agency

(a) the Police Service,

(b) the Australian Federal Police,

(c) the police force of another State or a Territory,

(d) the Australian Crime Commission,

(e) the Australian Bureau of Criminal Intelligence,

(f) the National Exchange of Police Information,

(g) the Independent Commission Against Corruption or a similar body established under the law of another legislature in Australia,

(h) the New South Wales Crime Commission or a similar body established under the law of another legislature in Australia,

(i) the Attorney General for the Commonwealth or for a State or Territory,

(j) persons employed in the Attorney General’s Department or a similar Department of the Commonwealth, another State or a Territory, or employed in a body administered by such a Department, being persons whose primary function is the institution or conduct of proceedings for offences,

(k) the Office of the Director of Public Prosecutions or a similar body established under a law of another legislature in Australia,

(l) the Director of Public Prosecutions, or a person performing a similar function, appointed under a law of another legislature in Australia,

(m) a Crown Prosecutor,

(n) a legal practitioner to the extent to which the legal practitioner is engaged by or on behalf of the Crown to prosecute an offence,

(o) a person or body prescribed for the purpose of this definition by the regulations.”

113 The Crown conceded before her Honour that the charge sheets had been obtained from the Waverley Local Court after 13 January 2003. In those circumstances, the appellants argued, the charge sheets had been obtained in contravention of section 13 Criminal Records Act 1991.

114 Section 138 Evidence Act 1995 provides:

“(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) …

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

International Covenant on Civil and Political Rights

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

115 It was submitted that her Honour should, in the exercise of her discretion, not permit the tender of the charge sheets.

116 Her Honour did not rule on this submission. Rather, she admitted the documents provisionally, on the basis that she would deal with the question of admissibility in her final judgment.

117 The final judgment made no mention of that dispute about admissibility. Nor does her Honour’s judgment say anything about why it is that she rejects the evidence of George Nasr about not remembering the three convictions. However, if part of the reasoning process was that the three convictions had indeed occurred, and being convicted and required to pay $800 plus court costs is not the sort of thing a person is likely to forget, then regard would have been had to the charge sheets.

118 Before us, it was argued that, for the same reasons as had been put below, the charge sheets were illegally obtained. Her Honour was thus called on, the argument goes, to exercise the discretion under section 138 Evidence Act about whether to admit the charge sheets, and she had manifestly failed to exercise that discretion. Thus, the argument goes, the charge sheets should not have been treated as being in evidence. If they were not treated as being in evidence, one of the bases upon which she formed an unfavourable view of the credit of George Nasr, was not available to her.

119 The appellants accept that if the charge sheets had been subpoenaed, section 13(4) Criminal Records Act would have the effect that complying with the subpoena by producing the documents in court would not involve an unlawful disclosure. Further section 16 Criminal Records Act provides:

Proceedings before courts

(1) Section 12 does not apply to proceedings before a court (including the giving of evidence) or the making of a decision by a court (including a decision concerning sentencing).

(2) However, a court before which evidence of a spent conviction is admitted must, in appropriate circumstances, take such steps as are reasonably available to it to prevent or minimise publication of that evidence.”

120 Thus, section 12 would not have excused George Nasr from answering questions in court about his convictions. Further, because production of the charge sheet to the court in compliance with the subpoena would not have been an illegal act, there would have been no occasion for the judge to exercise a discretion under section 138 Evidence Act about whether to receive the charge sheets in evidence.

121 However, the appellants say that, if the records of the conviction had been subpoenaed, the provisions of the then Part 29 Rule 6A District Court Rules would have required the Crown, as the party issuing the subpoena, to serve the appellants with a copy of the subpoena. In that way, George Nasr’s legal advisors would have obtained knowledge of the convictions before the hearing, and have the opportunity to seek his instructions about them. If that had happened, the cross-examination concerning those convictions would not have come as a surprise to both George Nasr and his legal advisors. The appellants contend that the illegal mode of obtaining the conviction records produced an unfairness in the trial, concerning which there was a reasonable possibility that her Honour, if she had considered the matter, would have exercised the discretion under section 138 Evidence Act to exclude the evidence.

122 There was no argument on this appeal about who had the onus of proving that some particular making available of information is not illegal because it falls within section 13(2) Criminal Records Act. Nor was there any argument on this appeal, or evidence in the court below, about whether the particular officer of the Crown Solicitors Office who received the conviction records from Waverley Court was an employee of the Attorney-General’s Department "whose primary function is the institution or conduct of proceedings for offences", within the meaning of section 13(5). In those circumstances, I shall assume, without deciding, that that officer of the Crown Solicitors Office was not a "law enforcement agency" within the meaning of section 13.

123 Nor was there argument on this appeal about whether the collection of records from which the charge sheets were obtained was a collection of records "kept by or on behalf of a public authority", within the meaning of section 13(1). In those circumstances, I shall assume, without deciding, that it is such a collection of records.

124 The argument before her Honour proceeded on the basis that the appellants alleged that there had been two separate “disclosures” of the convictions at Waverley court. The first of them was alleged to have occurred when some unidentified person in the police force disclosed the fact of the convictions to a solicitor in the Crown Solicitors Office. There was neither specific proof, nor admission, about any such disclosure having been made – her Honour was asked to infer that there must have been such a disclosure. The second alleged disclosure was when the keeper of the records at Waverley court provided the charge sheets to the solicitor in the Crown Solicitors Office.

125 In this court, the only alleged contravention related to the provision of the charge sheets. That was, no doubt, because there was no proof that, even if it were the case that a police officer had informed a solicitor in the Crown Solicitors Office about the convictions, that information was conveyed at a time before the convictions had become spent. Nor, when litigation relating to or arising from the circumstances of the arrest and detention of the appellants had been pending for years – Nakhl Nasr’s claim was begun in 2001 – was there any inherent unlikelihood in any such disclosure having occurred before the convictions had become spent.

126 The person who alleges that there has been a contravention of section 13 bears the onus of establishing that there has been such a contravention. When the purpose for which a litigant seeks to establish a contravention of section 13 is for the purpose of an argument about admissibility of evidence in a civil case, the standard of proof that needs to be achieved is not the criminal standard.

127 Section 13(1) is a section that prohibits certain types of disclosure of information. The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know: R v Skeen & Freeman (1859) Bell 97; 169 ER 1182 (“uncovering … discovering … revealing … imparting of what was secret … [or] telling that which had been concealed”); Foster v FederalCommissioner of Taxation (1951) 82 CLR 606 at 614-5 ("... a statement of fact by way of disclosure so as to reveal or make apparent that which (so far as the "discloser" knows) was previously unknown to the person to whom the statement was made"); R v Gidlow [1983] 2 Qd R 557 at 559 (“telling that which has been kept concealed”); Dun & Bradstreet (Australia) Pty Ltd v Lyle (1977) 15 SASR 297 at 299; A-G v Associated Newspapers Ltd [1994] 2 AC 238 at 248 (“to open up to the knowledge of others”); Real Estate Opportunities Limited v Aberdeen Asset Managers Jersey Limited [2007] EWCA Civ 197 at [78] (“the revelation of information for the first time”). In my view, the provision by the keeper of the records of Waverley court of the records of the conviction would be a disclosure of information relating to a spent conviction only if the solicitor at the Crown Solicitors Office to whom that record was provided did not already know the information that was contained in it. When the conviction records were provided as a result of a request made by the relevant solicitor at the Crown Solicitors Office, I would not infer that the provision of the documents amounted to the disclosure of information relating to a spent conviction. There is simply no proof or concession concerning how much that solicitor knew about the convictions before obtaining the charge sheets, beyond the inference that is available from the conceded fact that she asked for the records that she knew enough about the content to make it worthwhile to ask for the records. Thus, in my view the appellants did not establish, even at the level of proof needed to establish an illegality for the purpose of a question of admissibility of evidence in a civil proceeding, that there was any contravention of section 13.

128 Her Honour was in error in having admitted the documents provisionally, on the basis that she would give reasons later, but never giving any such reasons. However, when the basis upon which the admissibility of the documents was opposed has no substance in law, that error is the sort of error that has not resulted in any miscarriage of justice.

The Alleged

Privacy Act

Contravention

129 Alternatively, the appellants submit that the release of the charge sheets involved a contravention of the Privacy and Personal Information Protection Act 1998 (“the Privacy Act”).

130 Under section 4 of that Act, “personal information” means (subject to some exceptions not presently relevant):

“information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.”

131 I shall assume, without deciding, that under that Act, the keeper of the records of the Waverley Court is a “public sector agency”. Section 18 of the Privacy Act provides:

Limits on disclosure of personal information

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.”

132 For the same reasons as apply in relation to the alleged breach of the Criminal Records Act, I am not satisfied that making the charge sheets available involved any disclosure of information.

133 As well, the Crown submitted that there was no breach of section 18 involved in any disclosure by Waverley Court of the conviction records because of the provisions of section 6, or alternatively section 23(4) of the Privacy Act. Section 6 provides, so far as relevant:

“(1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court’s, or the tribunal’s, judicial functions.

…

judicial functions

(a) in relation to a Magistrate—such of the functions of the Magistrate as relate to the conduct of committal proceedings, and

Coroners Act 1980

134 I do not accept that section 6 would have applied, if there had been a disclosure by the keeper of the records of Waverley Court, of this conviction record after 13 January 2003. Any such disclosure would have occurred long after the court had ceased to perform its judicial functions in relation to these particular convictions, and would have no effect on the manner in which the Waverley Court thereafter performed its judicial functions.

135 However, section 6 has relevance in a different way that is independent of whether making the charge sheets available amounted to a disclosure of information. The District Court, hearing the trial involved in the present case, was in the midst of exercising its judicial functions. If the trial judge in the present case were to treat a breach of the Privacy Act as an illegality or impropriety, and hence as something that gave occasion for the exercise of a discretion under section 138 Evidence Act, that would involve the Privacy Act affecting the manner in which the District Court exercised its judicial functions. In my view, a consequence of section 6(1) is that any breach of the Privacy Act is not to be taken as an illegality or impropriety, for the purpose of section 138 Evidence Act. Thus, her Honour has committed no error by failing to consider whether to exclude the charge sheets from evidence, on the ground that they had been obtained through a breach of the Privacy Act.

136 Further, section 69 of the Privacy Act provides:

Legal rights not affected

(1) Nothing in Part 2 or 3 gives rise to, or can be taken into account in, any civil cause of action, and without limiting the generality of the foregoing, nothing in Part 2 or 3:

(a) operates to create in any person any legal rights not in existence before the enactment of this Act, or

(b) affects the validity, or provides grounds for review, of any judicial or administrative act or omission.

(2) Subsection (1) is subject to sections 21 and 32.”

137 Part 2 of the Privacy Act runs from section 8 to section 28 inclusive. The proceedings before the District Court in the present case were, of course, a civil cause of action. If, in the course of trying it, the trial judge had taken into account any contravention of section 18 of the Privacy Act, she would have been acting contrary to section 69(1). This provides a further reason why there was no error in her taking the charge sheets into account notwithstanding the Privacy Act.

138 Under these circumstances, there is no occasion to consider whether section 23(4) provides a separate reason why her Honour was not in error in failing to conclude that a breach of the Privacy Act made the charge sheets inadmissible.

139 For the same reasons as applied in relation to the argument of illegality under the Criminal Records Act, there was no miscarriage of justice in her Honour's failure to consider the applicability of the Privacy Act in her judgment.

Orders

140 I propose the following orders in each appeal:

1. Appeal dismissed

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Citations

Nasr v State of New South Wales [2007] NSWCA 101

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CITATION:	NAKHL NASR v STATE OF NEW SOUTH WALES; GEORGE NASR v STATE OF NEW SOUTH WALES [2007] NSWCA 101
HEARING DATE(S):	19 February 2007
JUDGMENT DATE:	4 May 2007
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 2; Campbell JA at 3
DECISION:	In each appeal ; (1) Appeal dismissed. ; (2) Appellant to pay costs of the respondent of the appeal.
CATCHWORDS:	CRIMINAL LAW – arrest – arrested person to be taken before an authorised Justice to be dealt with according to law – delay – factors to be considered when determining whether delay unreasonable – where police station has influx of prisoners – where prisoners’ solicitor busy with multiple prisoners – Crimes Act 1900, section 352 - CRIMINAL LAW – arrest – bail – police bail – police required to determine bail or bring accused person before a court as soon as reasonably practicable – delay – factors to be considered when determining whether police bail decision made as soon as reasonably practicable after accused person charged – external constraints on police – where police station has influx of prisoners – where prisoners’ solicitor busy with multiple prisoners – Bail Act 1978, section 18 - POLICE – actions for wrongful arrest, trespass and other wrongs – false imprisonment – whether initially lawful detention became unlawful after delay in bringing accused person before an authorised Justice - POLICE – rights, powers and duties – police powers of detention – length of time during which accused person may be lawfully detained – requirement to take accused person before an authorised Justice - TORTS – trespass to the person – false imprisonment – action by people arrested and then detained at police station – whether initially lawful detention became unlawful after delay in bringing accused person before an authorised Justice - EVIDENCE – admissibility and relevance – Local Court charge sheets – whether charge sheets improperly obtained – discretion to exclude improperly obtained evidence – section 13 Criminal Records Act 1991 – section 18 Privacy and Personal Information Protection Act 1998 – Evidence Act 1995, section 138 - EVIDENCE – admissibility and relevance – evidence admitted provisionally – trial judge indicated admissibility would be considered later in reasons – failure of trial judge to later give reasons on admissibility - JUDGMENTS AND ORDERS – statement of reasons for decision – trial judge admitted evidence provisionally on the basis reasons would be given later – failure of trial judge to later give reasons - JUDGMENTS AND ORDERS – statement of reasons for decision – adequacy of reasons – failure to analyse evidence – whether inadequacy of reasons warrants correction on appeal – whether substantial wrong or miscarriage resulted - POLICE – action for wrongful arrest, trespass and other wrongs – assault – whether police used reasonable force in arresting suspect - POLICE – actions for wrongful arrest, trespass and other wrongs – negligence – whether injuries sustained by suspect during arrest resulted from police negligence - WORDS AND PHRASES – “disclose”
LEGISLATION CITED:	Bail Act 1978 Crimes Act 1900 Criminal Legislation (Amendment) Act 1992 Criminal Records Act 1991 Customs Act 1901 (Cth) District Court Rules Evidence Act 1995 Privacy and Personal Information Protection Act 1998 Summary Offences Act 1988 Supreme Court Rules 1970
CASES CITED:	A-G v Associated Newspapers Ltd [1994] 2 AC 238 Bales v Parmeter (1935) 35 SR (NSW) 182 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 Dun & Bradstreet (Australia) Pty Ltd v Lyle (1977) 15 SASR 297 Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 Michaels v The Queen (1995) 184 CLR 117 Mifsud v Campbell (1991) 21 NSWLR 725 R v Gidlow [1983] 2 Qd R 557 R v Michaels (1993) 70 A Crim R 78 R v Skeen & Freeman (1859) Bell 97; 169 ER 1182 R v Zorad (1990) 19 NSWLR 91 Real Estate Opportunities Limited v Aberdeen Asset Managers Jersey Limited [2007] EWCA Civ 197 Richard Martin Tory v Michael Megna [2007] NSWCA 13 Ruddock v Taylor (2003) 58 NSWLR 269 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Weiss v The Queen (2005) 224 CLR 300 Williams v The Queen (1986) 161 CLR 278 Zaravinos v State of New South Wales (2004) 62 NSWLR 58
PARTIES:	Nakhl Nasr - Appellant (40972/05) George Nasr - Appellant (40973/05) State of New South Wales - Respondent (40972/05 & 40973/05)
FILE NUMBER(S):	CA 40972/05; 40973/05
COUNSEL:	T A Game SC; S M McNaughton - Appellants P W Neil SC; M Hutchings - Respondent
SOLICITORS:	Levitt Robinson - Appellants Crown Solicitor - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	13884/01; 4988/03
LOWER COURT JUDICIAL OFFICER:	Balla DCJ
LOWER COURT DATE OF DECISION:	28 November 2005