New South Wales v Hathaway
[2010] NSWCA 184
•6 August 2010
New South Wales
Court of Appeal
CITATION: State of NSW v Hathaway [2010] NSWCA 184
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 11 March 2010, 12 March 2010
JUDGMENT DATE:
6 August 2010JUDGMENT OF: Tobias JA; McColl JA; Macfarlan JA DECISION: (a) Appeal allowed.
(b) Set aside the judgment and orders made by Simpson J on 7 May 2009.
(c) Verdict and judgment for the appellant with respect to the respondent's malicious prosecution cause of action as pleaded in paragraph 7 of the respondent's Amended Statement of Claim filed on 23 August 2006.
(d) Direct that a new trial be held limited to the issue of liability with respect to the respondent’s assault cause of action as pleaded in paragraph 4 of the respondent’s Amended Statement of Claim filed on 23 August 2006.
(e) The respondent to pay the appellant’s costs of the appeal but to have a certificate under the Suitors’ Fund Act 1951, if otherwise qualified.
(f) Direct that with the consent of the parties and the judge hearing the new trial on the assault cause of action, the latter proceed on evidence already admitted before Simpson J.
(g) Direct that the judge hearing the new trial may admit further evidence upon application by either party, should he or she consider it appropriate to do so in the interests of justice.
(h) The costs of the trial and the new trial to be determined by the judge hearing the new trial.CATCHWORDS: APPEAL – civil – credibility – whether failure to pay proper regard to respondent’s unreliability as witness - APPEAL – civil – evidence – whether evidence supports conclusion – whether failure to assess or address evidence – sufficiency of evidence - APPEAL – civil – retrial – severance of issues – whether damages should be subject of new trial - EVIDENCE – proof – standard of proof – civil – application of Briginshaw principle - EVIDENCE – witnesses – unexplained failure to call witnesses – inferences - TORTS – intentional – malicious prosecution – whether charges brought and prosecuted in absence of reasonable and probable cause and with actual malice – whether informant aware that knife was planted by police officer - TORTS – intentional – trespass to person – assault – whether police officer struck respondent on face with baton LEGISLATION CITED: Civil Procedure Act 2005
Crimes Act 1900
Evidence Act 1995
Independent Commission Against Corruption Act 1988
Other publications: New South Wales, Royal Commission into the New South Wales Police Service, Final Report – Volume 1, (May 1997)
Law Reform (Vicarious Liability) Act 1983
Police Integrity Commission Act 1996
Police Regulation 2000
Suitors’ Fund Act 1951
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005CATEGORY: Principal judgment CASES CITED: A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
Alchin v Daley [2009] NSWCA 418
Briginshaw v Briginshaw (1938) 60 CLR 336
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hall v van der Poel [2009] NSWCA 436
Hare v Harmer (2009) NSWCA 68
Hathaway v State of New South Wales [2009] NSWSC 116
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; (1992) 110 ALR 449
Palmer v Dolman [2005] NSWCA 361
Payne v Parker [1976] 1 NSWLR 191
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816PARTIES: State of New South Wales
Allan Frederick HathawayFILE NUMBER(S): CA 2009/40167 COUNSEL: A: P W Taylor SC / G Giagos
R: J Roberts SC / J SaintySOLICITORS: A: I V Knight, Crown Solicitor's Office
R: Walsh & Blair Lawyers, Wagga WaggaLOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 20002/2006 LOWER COURT JUDICIAL OFFICER: Simpson J LOWER COURT DATE OF DECISION: 23 April 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Allan Frederick Hathaway v State of New South Wales [2009] NSWSC 116
CA 40167/09
SC 20002/066 August 2010TOBIAS JA
McCOLL JA
MACFARLAN JA
- A SUMMARY OF THE CENTRAL ACTORS AND THE EVENTS IN
WHICH EACH WAS INVOLVED [1]
(1) Mr Allan Frederick Hathaway (the respondent) [6]
(2) Detective Senior Constable Timothy Briggs (Briggs) [7]
(3) Sergeant Virginia Anne Morgan (Morgan) [8]
(4) Constable Christopher John Jackson (Jackson) [9]
(5) Inspector Thomas Patrick Murphy (Murphy) [10]
(6) Constable Gregory James Cox (Cox) [11]
(7) Senior Constable Dion McAlister (McAlister) [12]
(8) Constable Julie Theresa Philpott (Philpott) [13]
(9) Constable Amanda Rae Deissel (Deissel) [14]
(10) Senior Constable Raymond Holmes (Holmes) [15]
(11) Mr Garry Gaffney (Mr Gaffney) [16]
(12) Mr Simon Mansfield (Mr Mansfield) [17]
(13) Senior Constable Melinda Jennings (Jennings) [18]
(1) The respondent’s version of events [27]THE UNDISPUTED BACKGROUND FACTS [19]
THE ASSAULT CAUSE OF ACTION [27]
(2) Jackson’s version of events [37]
(3) The primary judge’s summary of the competing accounts [45]
(4) The various occasions on which principal players had, prior to
- the trial, been called upon to give evidence or provide statements
with respect to the relevant events [47]
- (a) Reiteration of Jackson’s version at trial [52]
(b) Jackson’s police statement version [54]
(c) Jackson’s notebook entry [56]
(d) Jackson’s version to the Critical Incident Investigation
Team(CIIT) [57]
(e) Jackson’s version at the respondent’s prosecution [58]
(f) Jackson’s version to the Police Integrity Commission [60]
(g) Jackson’s version at his own trial [65]
respondent [67]
(6) The primary judge’s findings with respect to the credit of Jackson [80]
(7) The primary judge’s reasoning in accepting the version of events
advanced by the respondent [84]
(8) The issues on the appeal with respect to the assault cause of
action [90]
- (a) The movement and position of the bed [91]
(b) The improbability of the respondent’s version of events [107]
(c) The respondent’s unreliability and lack of credit [126]
(d) The respondent’s resistance to arrest [130]
(e) Jackson’s reactive assault [132]
(1) The nature of the respondent’s claim [146]THE MALICIOUS PROSECUTION CAUSE OF ACTION [146]
(2) The relevant principles applicable to the malicious prosecution
cause of action [153]
(3) The relevant findings of the primary judge [161]
- (a) The movements of the police officers following the removal
of the respondent from the Gaffney house [162]
(b) The finding of the knife [179]
(c) The critical incident [183]
(5) The relevant evidence of Morgan [205]
(6) The context in which the evidence of Briggs is to be considered [214]
(7) The relevant evidence of Briggs [215]
(8) The relevant evidence of Jennings [243]
(9) The information available to Briggs at the time the respondent
was charged with the knife offences [245]
(10) The relevant findings of the primary judge that the knife was
was planted and that Briggs was aware of that fact cannot be
sustained [258]
- (a) The applicable standard of proof [259]
(b) The absence of Murphy and Mr Mansfield [274]
(c) The planting of the knife [280]
(d) The destruction of the crime scene [307]
GENERAL CONCLUSIONS [331](11) Some final observations [322]
(12) Conclusion with respect to the malicious prosecution cause
of action [330]
CA 40167/09
SC 20002/06
6 August 2010TOBIAS JA
McCOLL JA
MACFARLAN JA
Judgment
1 THE COURT: On 9 January 2006 Alan Frederick Hathaway (the respondent) instituted proceedings against the State of New South Wales (the appellant) alleging that it was vicariously liable pursuant to the Law Reform (Vicarious Liability) Act 1983 with respect to the wrongful conduct of three members of the New South Wales Police Service, Constable Christopher John Jackson, Detective Senior Constable Timothy Scott Briggs and Sergeant Virginia Ann Morgan. For ease of reference and economy and without intending any disrespect to the police officers mentioned, we shall refer to all relevant police officers by their surname only.
2 Two causes of action were pleaded. The first was that at approximately 10.45am on 6 February 2003 at premises owned by a Mr Gaffney in Wagga Wagga, the respondent was assaulted by Jackson in his attempt to apprehend the respondent whereby he (the respondent) sustained serious injuries (the assault cause of action). The second arose out of a number of offences resulting from the events of 6 February 2003 and in respect of which 10 charges were laid against the respondent by Briggs on 28 March 2003 and prosecuted by Morgan in the Local Court in Wagga Wagga on 11 December 2003. The respondent alleged that five of those charges were brought and prosecuted in the absence of reasonable and probable cause and with actual malice (the malicious prosecution cause of action).
3 The proceedings were heard by Simpson J in the Common Law Division of the Supreme Court between 27 August 2008 and 15 October 2008. On 23 April 2009 her Honour found in favour of the respondent with respect to the assault cause of action and also with respect to the malicious prosecution cause of action insofar as it related to Briggs. Her Honour dismissed that cause of action against Morgan: Hathaway v State of New South Wales [2009] NSWSC 116.
4 Her Honour assessed the respondent’s damages in respect of the assault cause of action in the sum of $203,365 including $100,000 exemplary damages. She assessed his damages with respect to the malicious prosecution cause of action in the sum of $107,965, which also included exemplary damages in the sum of $100,000. On 7 May 2009 judgment was entered for the respondent against the appellant in the total sum of $311,330.
5 The appellant now appeals to this Court only with respect to the issue of liability. There is no challenge to her Honour’s assessment of damages in respect of either cause of action.
A SUMMARY OF THE CENTRAL ACTORS AND THE EVENTS IN WHICH EACH WAS INVOLVED
- (1) Mr Allan Frederick Hathaway (the respondent)
6 During the morning of 6 February 2003 the respondent was driving an unregistered motor vehicle whilst disqualified in Wagga Wagga. He was pursued by police but attempted to avoid being apprehended. He ultimately entered the backyard of residential premises belonging to Mr Gaffney, found the door to the family room unlocked and entered the house. He proceeded into a bedroom and attempted to hide under the bed but was discovered by Jackson, one of the police officers involved in the pursuit. There was an altercation between the respondent and Jackson in the period before another police officer, Philpott, arrived. The respondent was subsequently arrested, escorted from the premises and taken to a police station and ultimately to hospital.
(2) Detective Senior Constable Timothy Briggs (Briggs)
7 Briggs was involved in the initial pursuit of the respondent through the streets of Wagga Wagga on 6 February 2003. However, he was unable to apprehend the respondent. He arrived at Mr Gaffney’s premises shortly before the respondent was arrested. He remained there until he spoke to Mr Gaffney who arrived shortly thereafter and then departed. While Briggs was away from the premises, he received a telephone call from Inspector Murphy who told him that Mr Mansfield, a cleaner engaged by Murphy to clean the premises after the respondent’s removal therefrom, had found a long bladed knife in the bedroom. Briggs thereupon returned to Mr Gaffney’s premises in the company of McAlister and Jackson. On 28 March 2003 Briggs preferred ten charges against the respondent arising out of the events of 6 February 2003 including two charges relating to the knife and which gave rise to the malicious prosecution cause of action.
(3) Sergeant Virginia Anne Morgan (Morgan)
8 Morgan appeared as the prosecutor at the hearing of the ten charges preferred against the respondent in relation to the events of 6 February 2003. That hearing took place in the Wagga Wagga Local Court on 10 and 11 December 2003, and 22 and 23 March 2004. She was not otherwise involved in those events.
(4) Constable Christopher John Jackson (Jackson)
9 Jackson, a police officer, joined in the pursuit of the respondent on 6 February 2003 and followed the footmarks of the respondent into the bedroom of Mr Gaffney’s premises where he was hiding under the bed. Jackson was then involved in an altercation with the respondent which gave rise to the assault cause of action. Jackson left Mr Gaffney’s premises shortly after the respondent was arrested. However, he returned in the company of Briggs and McAlister shortly after being informed by Murphy that Mr Mansfield had discovered a knife in the bedroom. After McAlister had photographed the knife, Jackson took possession of it and conveyed it to the police station.
(5) Inspector Thomas Patrick Murphy (Murphy)
10 Murphy arrived at the premises of Mr Gaffney shortly after the respondent had been arrested. He was the senior police officer at the scene. He arranged for a contract cleaner, Mr Mansfield, to attend the house to clean up the crime scene. He did not leave the premises at least until after Jackson had conveyed the knife found by Mr Mansfield in the bedroom to the police station for forensic examination.
(6) Constable Gregory James Cox (Cox)
11 During the morning of 6 February 2003, in response to a call for assistance from Briggs, Cox pursued the respondent on foot and ultimately caught him. The respondent struggled violently and managed to free himself by kicking Cox in the groin. Cox attended Mr Gaffney’s premises a short time later. However, what he did there is unclear and is unimportant in any event.
(7) Senior Constable Dion McAlister (McAlister)
12 McAlister arrived at Mr Gaffney’s premises shortly before the respondent was arrested. About 10 or 15 minutes after the respondent had been removed from the premises, and having taken a number of photographs of the bedroom, McAlister left the premises. However, he returned to the premises soon after with an exhibit camera from the police station and, on the instructions of Murphy, took further photographs in and around the house. After completing his photographic assignment, he left the premises. McAlister was telephoned by Murphy shortly after the knife was discovered in the bedroom whereupon he again returned to the premises to take photographs of the knife with a different (digital) camera.
(8) Constable Julie Theresa Philpott (Philpott)
13 Philpott entered the bedroom of Mr Gaffney’s premises during the altercation between the respondent and Jackson. She assisted with the arrest of the respondent. She then remained at the premises until McAlister returned with the station’s exhibit camera to take further photographs. After assisting him with this task, Philpott left and did not return.
(9) Constable Amanda Rae Deissel (Deissel)
14 Deissel arrived at Mr Gaffney’s premises shortly before the respondent was arrested. She assisted the other police officers in handcuffing the respondent. She remained at the premises until McAlister returned with the station’s exhibit camera to take further photographs. After assisting him with this task, Deissel left and did not return.
(10) Senior Constable Raymond Holmes (Holmes)
15 Holmes also arrived at the premises of Mr Gaffney shortly before the respondent was arrested. He escorted the respondent to the police vehicle and left the premises soon after. He returned to the premises about 30 minutes later, had a brief conversation with Murphy and then left again and did not return.
(11) Mr Garry Gaffney (Mr Gaffney)
16 Mr Gaffney was the owner of the residential premises which the respondent entered on 6 February 2003 and in the bedroom of which the altercation took place between the respondent and Jackson. Mr Gaffney was contacted by the police at his work and returned to his home shortly after. He spoke with Briggs and then left the premises. He returned after the knife was discovered to identify it.
(12) Mr Simon Mansfield (Mr Mansfield)
17 Mr Mansfield was the cleaner who attended Mr Gaffney’s premises when contacted by the police. He arrived at about 12.25pm and commenced cleaning the bedroom. He discovered the knife in the bedroom shortly after and immediately informed Murphy. He recommenced cleaning the bedroom after the knife had been photographed by McAlister and retrieved by Jackson.
(13) Senior Constable Melinda Jennings (Jennings)
18 Jennings was the Duty Custody Officer at Wagga Wagga Police Station on 6 February 2003. At about 2.50pm she was introduced to the respondent in the charge room of the police station. She went through all relevant custody procedures with the respondent, which were recorded on the Custody Management Record.
THE UNDISPUTED BACKGROUND FACTS
19 As indicated, the events giving rise to the respondent’s claims occurred on 6 February 2003 at Wagga Wagga. The respondent was then 39 years of age and was a serial disqualified driver: he had been charged and convicted of that offence on at least five occasions.
20 During the morning of 6 February the respondent was observed by Briggs to be driving in a motor vehicle that was apparently unregistered. He made enquiries over the police radio and confirmed that the vehicle was in fact unregistered. He also learned that the respondent had been disqualified from driving. A pursuit then occurred through various streets of Wagga Wagga.
21 Eventually the respondent drove into a cul de sac followed by Briggs. He then alighted from his vehicle and ran off, discarding the thongs he had been wearing. Briggs chased the respondent on foot for a short time but then returned to his vehicle and called for assistance. A number of police officers responded to that call including Cox and McAlister. Cox then pursued the respondent on foot and ultimately caught him. The respondent struggled violently and managed to free himself by kicking Cox in the groin causing him extreme discomfort and pain. The respondent then ran off again.
22 It was a very hot day in Wagga Wagga, the respondent was barefoot at the time and his route involved climbing over a number of fences, some of which were made of uncut corrugated iron. As a consequence his feet and hands were cut and he left a trail of blood behind him.
23 Ultimately, the respondent entered the backyard of the Gaffney premises. He found the door to the family room unlocked and entered the house. None of the family was home at the time. The respondent left a blood trail to the house and on some plants in the backyard. The police tracked the blood trail he had left to the house.
24 According to the respondent, on entering the family room he turned right through the laundry and then left into the pantry. He then exited into a corner of the kitchen and proceeded through the door between the kitchen and the lounge room. He then crossed the lounge room and entered the bedroom belonging to one of the Gaffney children. Located against the western wall of that bedroom at approximately a metre or so from its northern wall and parallel to it was a single bed with a timber base and frame (the bed) under which the respondent attempted to hide.
25 By this time a significant number of police officers had joined in the pursuit and had congregated in the vicinity of the Gaffney house. One of them was Jackson who observed some “dirty foot marks” on the floor of the house and followed them into the bedroom where the respondent was hiding under the bed. Having inspected the room Jackson eventually looked under the bed where he located the respondent. It is at this point that the facts become controversial.
26 It is appropriate to deal separately with the controversial facts and submissions with respect to each of the causes of action. We shall deal first with the assault cause of action as it essentially only involves Jackson, whereas the malicious prosecution cause of action, except possibly with respect to one evidentiary matter, does not involve Jackson but does involve Briggs.
(1) The respondent’s version of events
THE ASSAULT CAUSE OF ACTION
27 Having entered the bedroom in question and having seen the bed, the respondent placed himself under or parallel with it. He lay mainly on his back but also slightly on his right side. From this position he saw the feet and legs of Jackson as he entered the room. Jackson crouched and looked under the bed and, having seen the respondent, said “Get out. Get out from under the bed or I’ll lodge two bullets in your head”. At the hearing of the charges against the respondent in the Local Court in Wagga Wagga on 23 March 2004, this evidence of the respondent was challenged. But he confirmed that Jackson threatened him as alleged. Oddly enough the respondent was not challenged on this evidence before the primary judge as to what Jackson said to him on discovering him under the bed: (cf Black 1/288 U-V; 289 R-U; 290 L-M).
28 There was no response from the respondent who remained under the bed. Jackson then stood up and the respondent observed him grab the side of the bed and pull or drag it away from the northern wall of the bedroom. Jackson then tipped or tilted the bed over on its side. As the respondent was no longer hidden, after a couple of seconds he stood up in the space between the bed and the northern wall. He was then standing mid-way along the bed which was still on its side, with the bed between himself and Jackson who then sprayed the respondent in the face with capsicum spray. The respondent raised his right arm to rub his eyes and stop the burning sensation caused by the spray. Jackson then reached for and drew out his police baton and struck the respondent on his right forearm causing immediate pain.
29 Jackson again struck the respondent’s right arm whereupon the respondent dropped his arm. Jackson then struck the respondent’s right cheekbone with his baton making him “a bit dazey, like a bit drowsy”. The respondent felt blood running down his face and feared for his life. He then said to Jackson “Don’t hit me any more”, but the assault continued.
30 The following exchange then took place (at Black 1/50V-X):
- “Q. Are you able to say how many times he hit you about the face?
A. It was more than twice, sir.
- Q. Are you able to say how many more than twice?
A. No. There was several times, sir.”
31 Eventually Jackson ceased hitting the respondent who then walked towards and around the foot of the bed. As he did so Jackson came towards him and struck him around the legs with his baton. At no time during the assault by Jackson was the bed moved. It remained on its side.
32 In cross-examination when shown the photograph of the bed on its side taken by McAlister (at Blue 1/211) (on page 192 of the Tender Bundle and identified by that number in the transcript), the respondent agreed that that was the bed’s position whilst he was being struck by Jackson with his baton. It is to be noted from this photograph that the legs of the bed are pointing into the room, towards the southern wall and away from the northern wall. At no time after initially telling the respondent to “Get out. Get out from under the bed or I’ll lodge two bullets in your head”, did Jackson say anything to the respondent.
33 After Jackson hit the respondent around the legs with his baton, other police officers entered the room. They yelled at the respondent to “get down on the ground, get down on the ground”. One of those officers was a policewoman, Constable Philpott. The respondent was then picked up and thrown onto the floor with his arms under his chest. His arms were then pulled from underneath him and he was handcuffed, pulled from the floor, taken from the house through the kitchen, placed in the back of a police van and conveyed to Wagga Wagga Police Station. He was then taken to hospital.
34 In cross-examination the respondent maintained the version of events he had given in chief in that he
(a) denied that Jackson hit him on the left arm with his baton ( Black 1/326N-P );
(b) accepted the evidence that he had given on another occasion, that after he was hit in the face he simply stood there in a daze ( Black 1/330B-C );
(c) ultimately accepted that Jackson had hit him more than twice in the face with his baton using a criss-cross swing but only on the right hand side of his face ( Black 1/333C-H );
(d) maintained that when he first stood up to face Jackson, and before he was struck by him, he had blood running down his face from having run his bleeding hands through his hair ( Black 1/335U-336J );
(f) denied that when he first saw Jackson looking at him under the bed, he flipped the bed over onto its side so that the mattress fell on the officer who then threw the mattress and bed back towards him so that the bed ended up on its side with the mattress side facing the northern wall of the bedroom and with the mattress behind the respondent leaning against that wall ( Black 1/385J-Q ).(e) denied that after he stood up there was any pushing or shoving of the bed between he and Jackson ( Black 1/346H );
35 It will be apparent from the respondent’s version of events that first, he was discovered under the bed by Jackson who then threatened him; second, not having responded to Jackson’s request to come out from under the bed, Jackson dragged the bed further out from its location parallel to the northern wall of the bedroom and tipped it on its side so that the bed’s legs faced into the room thereby exposing the respondent; third, thereupon the respondent stood up and faced Jackson; fourth, Jackson then sprayed the respondent’s face with capsicum spray, pulled out his baton and while the respondent was rubbing his eyes struck him twice on his right forearm; fifth, when the respondent dropped his right arm Jackson then struck him on the right side of his face causing excessive bleeding; sixth, unprovoked by the respondent, Jackson continued to strike him on the right side of his face with his baton more than twice and, after the respondent walked to the foot of the bed and around to the other side, Jackson then struck his legs.
36 Thus on the respondent’s version of events it would appear that he responded to Jackson passively as a consequence whereof the latter’s assault on him was entirely unprovoked apart from the respondent’s initial failure to get out from under the bed when first directed by Jackson to do so. He did not pose a threat to Jackson who could not have been in fear of him. The respondent was, on his own case, submissive and generally mute, unflinching and took no active measures (such as ducking) to protect himself from blows from the baton which caused him to fear for his life: (Black 1/50R-S; 329Z-330C). However, according to his evidence at the Local Court hearing in March 2004, when being repeatedly struck by the baton he “kept screaming out, ‘don’t hit me no more’ “ (Blue 2/69G-H).
(2) Jackson’s version of events
37 Jackson’s version of events as related in his evidence-in-chief could not be more different to that of the respondent. Upon entering the room and failing to see the respondent, Jackson knelt down on his hands and knees to check under the bed. In this context the evidence established that the distance between the floor and the underside of the bed frame was only 220mm (which converts to the old imperial measure of 8.66 inches). Accordingly, Jackson’s chest was almost touching the floor.
38 Having seen a pair of feet, Jackson said “Police” whereupon the bed was tilted up towards him and he observed the mattress coming up and then falling on top of him. The bed was therefore tipped through 90 degrees so that its left side lay upon the floor with the consequence that the foot of the bed faced towards the northern wall of the bedroom, which is the opposite direction to that depicted in the photograph at Blue 1/211. This evidence, as we shall later discuss in detail (at [60]), conflicts with the earlier evidence Jackson had given.
39 After the bedcovers and the mattress fell upon him, Jackson kicked and pushed the mattress away. He then took hold of the bottom rail of the bed at or about its midpoint with his left hand (which he was able to grip as the edge of the frame was clear of the floor due to the size of the bedposts which protruded from the side of the bed frame). At the same time he took hold of the corner of the mattress with his right hand. He then basically stood up, threw the mattress with his right hand and threw the bed away from him and towards the northern wall of the room with his left hand. At this time the respondent was still lying on the floor in a prone position. The effect of Jackson’s actions was that the bed frame was temporarily clear of the floor at about waist height. The bed then landed on its side near the wall having been flipped (to use Jackson’s expression) by him through 180 degrees. The mattress followed the bed frame and came to rest on its side against the northern wall.
40 Thereupon the respondent “pops up from behind the bed” (at Black 2/596U) and was observed by Jackson to be bleeding from his nose and from a small injury to his right cheek. In the result, the respondent and Jackson were facing each other with only the bed frame between them (according to the latter), the mattress having landed against the wall behind the respondent. We pause to observe that during his cross-examination the respondent maintained that when Jackson flipped the bed over towards him, the mattress remained generally on the bed although the top of it tilted towards him. The respondent then pushed it back into place so that when he stood up and faced Jackson both the bed frame and the mattress were between them.
41 After the respondent stood up, Jackson told him to get on the ground and that he was under arrest. He reached for his radio to call for assistance, but was unable to find it. The respondent then raised the end of the bed and pushed it towards Jackson. One leg of the bed struck him in the right shin causing some pain. The respondent “growled” aggressively at Jackson and again pushed the bed towards him. The two men then pushed the bed at each other a number of times. Jackson then drew his can of capsicum spray and directed its contents towards the respondent’s eyes. On being sprayed the respondent again pushed the bed towards Jackson, who in turn pushed it back. He again employed his capsicum spray on the respondent until the can was empty.
42 As the capsicum spray did not subdue the respondent, Jackson then drew his police baton and struck the respondent first on his left arm and then on his right arm in a criss-cross movement or, to employ a tennis analogy, first with a forehand stroke and then a backhand stroke. We interpose that although as we have noted at [34(a)] above, the respondent denied that he was struck on the left arm by Jackson’s baton, it was clear from the injuries that he sustained that he was so struck. This was confirmed by the medical evidence to the effect that he sustained a severe injury to his left arm. Jackson denied striking the respondent on the face.
43 The respondent continued pushing the bed towards Jackson who, when he was able, directed a downward blow with his baton to the respondent’s legs. He continued to yell at the respondent that he was under arrest. Jackson retreated as he was suffering from the effects of the capsicum spray and the respondent advanced with his hands in a boxer’s stance and challenged Jackson to a fight. Jackson repeatedly yelled to him “Police, you’re under arrest, get on the ground”.
44 At about that time Philpott entered the room followed by other police officers who then arrested the respondent in the manner already referred to. Although Philpott gave an account of what happened when she entered the room, her Honour noted (at [49]), and the contrary was not suggested on the appeal, that her evidence cast only a dim light on the central events and that what was at issue was who had assaulted whom. We shall at this point defer referring to Jackson’s evidence in cross-examination.
(3) The primary judge’s summary of the competing accounts
45 The primary judge summarised the competing accounts in the following terms:
- “50. On the [respondent’s] account, it was Constable Jackson who dragged the bed from above the plaintiff and tipped it on its side, sprayed him with capsicum spray, and, without adequate cause, struck him to the arms, face and legs with his police baton. The [respondent] denied that there had been any pushing or pulling of the bed by him after it had been turned on its side.
- 51. On Constable Jackson’s account, it was the [respondent] who raised the bed, tilted it until it stood on its side, and then used it as a kind of weapon with which to attack Constable Jackson. By the time Constable Philpott arrived, the bed was on its side, and the two men were in confrontation, the plaintiff in a somewhat agitated state.”
46 At [52] her Honour recognised that resolution of the events in the bedroom depended upon an analysis of the evidence given by the two central players. Hence,
- “... [the necessity for] the detailed scrutiny of their evidence on this and other occasions on which they have given evidence of these events.”
(4) The various occasions on which principal players had, prior to the trial, been called upon to give evidence or provide statements with respect to the relevant events
To these occasions we now turn.
47 Each of the respondent and Jackson gave sworn evidence as to the events in the bedroom on three occasions prior to the trial from which this appeal is brought. Relevant parts of the transcript of the evidence given by Jackson on those occasions were in evidence before her Honour. The first occasion was in the Local Court at Wagga Wagga upon the prosecution of the respondent on the 10 charges to which we have referred at [2] above and which included charges of assaulting Jackson and resisting Jackson in the execution of his duties. As we have indicated, those charges were laid against the respondent on 28 March 2003 and came on for hearing on 11 December 2003. On 24 March 2004 the Local Court Magistrate dismissed five of the ten charges including the charges of assault Jackson and resist arrest.
48 A complaint was made presumably, according to the primary judge at [23] of her reasons, by or on behalf of the respondent, about the conduct of Jackson to the Police Integrity Commission (PIC). The PIC conducted an inquiry, which proceeded over a number of days in February and March 2005. This was, therefore, the second occasion on which the respondent and Jackson gave evidence as to the events in the bedroom. The PIC delivered its report in December 2005.
49 The report resulted in Jackson being charged with assaulting the respondent. That charge was the subject of a hearing in the Local Court at Wagga Wagga in November 2007 and the first half of 2008. The respondent and Jackson gave evidence for a third time at this hearing as to the events in the bedroom. The charge was dismissed.
50 It is fair to say that there was no apparent inconsistency, or at least none was relied upon, between the respondent’s evidence of his account of the events in question given before the primary judge and those accounts given by him on the three occasions to which we have referred. However the same cannot be said with respect to Jackson. He gave a number of accounts both curial and non-curial. Apart from the three occasions on which he gave sworn evidence, and leaving to one side the accounts he had given to other police officers at the scene, on his return to the police station on 6 February 2003 Jackson typed out a four page statement; later the same day he made a lengthy entry in his notebook and, on the following day (7 February 2003) he gave an account of what occurred in response to questions from the Critical Incident Investigation Team (CIIT).
51 In his cross-examination before the primary judge Jackson abandoned what were said to be critical parts of each of those versions. Those parts related to his assertions regarding the respondent’s reaction when he, Jackson, in effect prostrated himself on the floor and discovered the respondent under the bed.
(a) Reiteration of Jackson’s version at trial
52 It will be recollected that according to Jackson’s account of events before the primary judge, the respondent, on being discovered, tilted the bed up towards Jackson through 90 degrees so that its left side lay upon the ground whereupon the mattress (and bedcovers) fell on top of him.
53 At trial Jackson accepted that only the mattress fell upon him. He then kicked and pushed to get out from under it whereupon with his left hand he threw the bed (and with his right hand he threw the mattress) back towards the northern wall of the bedroom with the result that the bed revolved through 180 degrees and the mattress landed up against the wall. It was this aspect of Jackson’s account before the primary judge that significantly differed from the versions that he had given on the previous occasions to which we have referred.
(b) Jackson’s police statement version
54 In his police statement of 6 February 2003 (at Blue 1/311M-P), after seeing the respondent’s feet and saying “Police”, Jackson stated:
- “Before I got the chance to say anything else, I saw the bed lift up in the air and it landed on me. I got tangled in the blankets. I felt weight on top of the bed and on top of me. I kicked the bed off me and got to my knees and stood up. I’d lost my portable radio. I saw a male jump up. I know this male to be the accused Alan Frederick Hathaway. I saw that the accused was bleeding from the nose and face.”
55 Before the primary judge Jackson accepted in cross-examination that his statement
- “ before I got the chance to say anything else I saw the bed lift up in the air and it landed on me ”
(c) Jackson’s notebook entry
was wrong and was an assumption he had made. He had also assumed that not only was the mattress on top of him but also that there was someone on top of the mattress – an assumption he conceded to be erroneous.
56 In his notebook entry of 6 February 2003 Jackson wrote
- “POI picked bed up and dumped it on me trying to pin me under it. I kicked bed off me and POI and bed hit wall.”
(d) Jackson’s version to the Critical Incident Investigation Team (CIIT)
In cross-examination before her Honour, Jackson agreed that when he wrote the words “ I kicked bed off me and POI and bed hit wall ” he was proffering for those who might want to look at his notebook an explanation as to how the respondent might have been hurt. He agreed that the effect of what he had written suggested that the respondent’s action had caused the bed to revolve 180°. He abandoned this version at trial.
57 In his response to questions from the CIIT on 7 February 2003, Jackson stated that after he had seen the respondent’s feet he, the respondent, “just kicked the bed up on top of me and he’s pushing, I could feel him on top of the bed”. He then said that he pushed the bed back up off him and pushed it against the [northern] wall [of the bedroom]. It was on its side. He said that he basically kicked the bed off him using his hands and feet. At trial under cross-examination he abandoned this part of his account, namely, that the bed was thrown on top of him by the respondent and that he could feel the respondent on top of the bed. He also abandoned his answer that he had pushed the bed back up off him and had pushed it against the wall.
(e) Jackson’s version at the respondent’s prosecution
58 At the hearing of the charges of assault against the respondent in the Local Court at Wagga Wagga on 11 December 2003, Jackson gave the following evidence:
- “Q. Now can you describe to the Court as best you recall what happened from the moment you say the words ‘Police’ in the bedroom?
A. Well as I saw the feet under the bed, I said, ‘Police’, and the next thing I knew the bed was on top of me. I could feel the weight of the bed on me and I also could feel something else on top of the bed.
- …
- Q. Suddenly it becomes airborne and lands on top of you?
A. Yes.
- Q. Wrong side up?
A. Yes.
- …
- Q. And as far as you know that’s done by this man here, Mr Hathaway?
A. Yes.
- Q. He propels the bed up and over on top of you?
A. Yes.”
59 Again he said that due to the weight of the bed on top of him he assumed that the respondent was on top of the bed. He said he knew the bed was on top of him and he could feel some weight on top of it. He then kicked the bed off him towards the [northern] wall of the bedroom. This version was also abandoned before the primary judge, Jackson accepting that it was only the mattress and not the bed that fell on him. He also accepted that he did not kick the bed off him but only the mattress.
(f) Jackson’s version to the Police Integrity Commission
60 In his evidence before the PIC on 21 February 2005 Jackson maintained that the respondent had thrown the bed so that it landed on top of him, a manoeuvre that would have required the bed to revolve through 180 degrees. Further, he maintained that he had thrown the bed back towards the northern wall so that it ended up as shown in the photograph at Blue 1/211, a manoeuvre that would have required the bed to revolve through 270 degrees.
61 The following exchange took place:
“A. Well, when I was in the room and the bed first got thrown onto me, I couldn’t see the defendant at that time. I lifted the bed off me and threw it back. Now, I don’t know whether those injuries were caused at that stage or the defendant had the injuries before he went into the room, so that’s why I have to answer yes to your question, because it is so broad.
Q. So you put forward two possibilities, do you? One is that when you threw the bed off you, which you say was placed upon you by Mr Hathaway - -
A. Yes.
Q. - - it caused those injuries to his face?
A. Well, I can’t be sure about that, but that is a possibility.
…
Q. Is this your position, that you are prepared to deny on your oath that you, in any way, inflicted those injuries upon Mr Hathaway unless it was accidentally by thrusting the bed off yourself?
A. Yes.
…
Q. Somehow he manages to push the bed up into the air and over onto you; is that right?
A. Approximately, yes.
Q. Then what do you do?
A. I lifted it back up and flipped it over.
Q. Flipped it over?
A. So it landed that way. (Indicating)
…
The Commissioner: Q. On its side?
A. On its side, yes.
Mr Rushton: Q. Like that? (Indicating)
A. Yes
Q. What did you do then?
A. I basically stood up – or jumped up and the defendant jumped up as well and we were facing each other from each side of the bed and that’s when he picked it up and pushed it back onto me.
…
Q. So you flip it and it does a spin; is that what you say?Q. And you push it up back towards the wall?
A. Yes. I pick it – I lift it up and flip it back towards the wall so it goes – travels over.
A. Yes.
62 Although he agreed at the PIC hearing (Blue 1/409I-L) that this was the first time that he had given evidence that the bed had revolved through 270 degrees, and that he had not given that evidence before the Local Court in December 2003, this was not strictly the case. Before the Local Court he had described a scenario (at Blue 1/333G-U) that required the bed to have revolved through 270 degrees so that its legs now pointed away from the northern wall:
“Q. So which way did you throw the bed?
A. Just kicked it straight up off me towards the wall.
Q. And which way, in terms of the bed’s orientation, did it land?
A. On its side.
Q. So which side of the bed were you on in terms of the orientation of the bed? The bottom side or the top side?…
A. I believe I may have been on the bottom side. I was more focused on the accused at that time.”
In any event Jackson abandoned this version of events before her Honour.
63 In his evidence to the PIC on 22 February 2005 (Blue 1/405) Jackson retreated from his 2003 evidence that the respondent was on top of the bed when it landed on him:
”Q. And the mattress dislodged and came down on top of you?
A. Yes – well, I don’t know if it dislodged, but the mattress was on top of me and then the bed was on top of the mattress.
Q. Was the mattress covering your head?
A. It was on top of me, yes.
…
Q. That would suggest that if it was coming down on top of you, the mattress had in fact dislodged itself from the base of the bed, wouldn’t you agree?
A. Yes, probably.
Q. If, indeed, the bed was in the same condition as we have seen it today and Mr Hathaway was on top of it, as you say he was, then those slats would have been dislodged out of the bed, too, wouldn’t they?
A. More than likely, yes.
Q. I thought you told us that he was on the bed and you threw him off?Q. Well, how is it that they ended up like that?
A. Well, the obvious answer is that Mr Hathaway probably wasn’t on the bed at the time when I picked it up.
A. Well, I believed that was the case, but that scenario you have just put to me there, thinking about it, obviously he wasn’t, then.”
64 Nevertheless, the difficulty Jackson faced with respect to his earlier evidence was twofold. First, if accepted, it involved the respondent in a prone position under the bed with very little clearance between the bed frame and the floor, levering the bed up and over through 180 degrees. His version of events at trial, that the bed was turned only through 90 degrees, seems more plausible. Second, if the bed was in fact on top of him, then for it to eventually have come to rest in the manner depicted in the photographs, i.e. on its side with its legs facing into the room and away from the northern wall, Jackson would have had to have thrown it through 270 degrees. As the bed and mattress weighed some 74 kilograms, and even accepting that Jackson was a strong individual, flipping or throwing the bed through only 180 degrees, his ultimate position at trial, seems more realistic.
(g) Jackson’s version at his own trial
65 The difficulties referred to were apparently realised by Jackson as he was preparing his defence to the charge of assaulting the respondent that arose out of the PIC inquiry. As her Honour acknowledged at [104], it was the investigator retained by his solicitor who suggested to Jackson that it was unlikely, if not impossible, for the events to have occurred as he had initially described them, this being a reference to the bed being on top of Jackson and he having then thrown it through 270 degrees. It apparently became clear to Jackson that first, the respondent could not from his prone position have thrown or flipped the bed through 180 degrees; and, second, that it was the mattress which was on top of him and not the bed frame itself, he having realised that the mattress itself was of substantial weight. If the respondent had only flipped the bed through 90 degrees, then Jackson would have had to return the bed through 180 degrees for it to have ended up in the position depicted in the photographs.
66 At his own trial in April 2008 Jackson gave evidence that he saw the bed lift up and land on top of him. However, on this occasion he said that he had given the matter further thought and now believed that he had been in error, that the bed had only been tilted through 90 degrees and that it was only the mattress that had come off the bed and landed on top of him. He also said that he had lifted the mattress (presumably with his right hand) and grabbed hold of the side of the bed frame with his left hand. He had then thrown the mattress towards the northern wall of the bedroom and flipped the bed over through 180 degrees. After the bed came to rest on its side, the respondent “popped up from behind the bed” whereupon Jackson noticed that he was bleeding from both his nose and somewhere under his right eye. Importantly, he said that the only thing between himself and the respondent was the bed as the mattress was behind the respondent against the wall, evidence which he repeated before the primary judge.
(5) The primary judge’s findings with respect to the credit of the respondent
67 The credit of both the respondent and Jackson was very much an issue before the primary judge. As her Honour recorded (at [53]), two principal bases were advanced as to why she should reject the respondent’s version of events: first, because it was “inherently implausible” and, second, the details thereof were “highly improbable”.
68 Her Honour commenced her consideration of the credit of the two main witnesses by observing that first (at [56]), each participant must have been under considerable pressure and threat and in a heightened state of anxiety which would not have been conducive to accurate recall of fine detail and, second (at [57]), as each of the respondent and Jackson had given their account of the events in question on at least four occasions prior to giving evidence in the proceedings, their recollection of the events had been contaminated by the repeated questioning to which each had been subjected on those previous occasions. In fact, her Honour noted that Jackson had acknowledged and, indeed, had claimed that his recollection had been altered (and improved) with the assistance of an investigator (see [65] above) and that his recollection had been “contaminated” by repeated examination and cross-examination of the events in question over a lengthy period of time.
69 Her Honour therefore concluded (at [59]) that:
- “While the central facts of which the two principal witnesses speak are of fundamental importance in the resolution of the conflict, generally speaking, I find (other than as I hereafter mention) that the minutiae is of little assistance.”
70 Her Honour then turned to the credit of the respondent noting (at [58]) that he did not handle cross-examination well, was highly excitable and at times was aggressive or combative. Nevertheless, she did not on the whole form the impression that the respondent set out deliberately to lie or to mislead the court (at [60]). On the contrary, she formed the impression and accepted that his thinking concerning the events was somewhat disordered and was possibly coloured by his initial fear of arrest by Briggs, then of apprehension by Cox and then of the events in the bedroom - whichever version was ultimately accepted.
71 The primary judge acknowledged (at [61]) that the matters to which she had referred impacted upon the respondent’s reliability and the weight to be attributed to his evidence. However, with one exception which she regarded as marginally peripheral, she did not find the respondent to be a deliberate fabricator.
72 The exception referred to related to the respondent’s denial of his past use of drugs and, in particular, heroin. On the evidence her Honour found (at [71]) that he had used heroin in the past although there was no evidence that he was using that drug in February 2003 so that, strictly, “his past use of heroin is only of marginal relevance”. Notwithstanding this comment, she considered that her finding that the respondent had lied about his use of heroin did have a significant impact on the assessment of his credibility and (at [72]) that it was necessary to bear that finding in mind in evaluating his credibility with respect to his account of the critical events in the bedroom.
73 Notwithstanding the detailed attack both in cross-examination and in submissions upon the credit of the respondent, her Honour indicated (at [73]) that she did not propose to
- “analyse nor even refer to the whole of the evidence, or argument in this respect.”
She noted, however, that the respondent’s Senior Counsel accepted that his client was an unsatisfactory witness whose evidence called for careful examination and, indeed, scepticism. She further observed that it was expressly acknowledged that on the various occasions on which the respondent had given evidence regarding the events in question, he had given a number of “ wildly inconsistent ” statements. If this be so, we were not directed to those statements on the appeal.
74 Her Honour then dealt with some of the matters that had been specifically raised as bearing adversely on the assessment of the respondent’s credibility all of which concerned what the respondent had or had not said to various people in the time of and during the aftermath of his arrest. In this respect the appellant submitted at trial, and repeated on the appeal, that one of the most telling matters which militated against accepting the respondent’s version of events was the fact that he had made no complaint that he had been struck on the face by Jackson with his baton.
75 At [76]–[80] of her judgment the primary judge detailed five instances where, immediately following his arrest, the respondent had had the opportunity to complain that he had been assaulted by Jackson but had not. However, at [81] her Honour considered that she was not prepared to draw any inference from the failure of the respondent to complain on any of those occasions. She said (at [82]):
- “I certainly would not expect him to hope to gain any comfort from complaining to Detective Briggs and Detective James after his arrest at the Local Court; I similarly would not have expected him to complain to the officers at the police station immediately after the arrest of 6 February. Nor, if it is the fact, do I make any findings adverse to the [respondent’s] credibility by his failure to complain either to Dr McDonagh or to doctors at the Albury Hospital. Indeed, I cannot be sure that he did not; but if he did not, it is, in my view, of little or no significance.”
76 The primary judge then referred to a later occasion when the respondent had had the opportunity to refer to these assaults but had indicated that he had no recollection of what had occurred. The occasion was at his examination by Dr Clark on 27 October 2003. In her report of 29 October 2003, Dr Clark wrote:
- “In relation to the incident in February 2003, Mr Hathaway indicated that he had no recollection of the events.”
77 At [86] her Honour noted that the respondent had had a consultation with Mr Templeton, a psychologist, on 24 December 2003. Mr Templeton’s record of that consultation included the following:
- “Previously no memory of events with police – now recalls the [sic] definitely [sic] hit me more than twice.”
However, the previous day Mr Templeton had recorded:
“States he now recalls police definitely [sic] hit him more than twice during his arrest, however, continues to remember little else of the alleged assault by police.”
78 The primary judge also referred to the respondent’s admission to Wagga Wagga Hospital on 17 July 2003 and to the hospital notes which recorded “alleged police assault six months ago”; “flashbacks of attack, fear further police violence” and of his stating “…problems all began after alleged ‘bashing by cops’ ”. The record also noted that the respondent had said:
- “He was under influence of drugs and can’t remember incident detail but claims bashed by batons”.
79 Her Honour then concluded her findings with respect to the respondent’s credibility in the following terms:
- “91. I think I have said quite enough to demonstrate that the assessment of what happened in the bedroom on 6 February must be made without resort to external circumstances relevant to the [respondent’s] credibility. On the one hand, as was conceded, there are real issues concerning his credibility; on the other, there are internal indicators of consistency in his account. In particular, I find his relatively early claims of assault to health professionals, in circumstances where he could not have anticipated that these would be used to support his credibility, persuasive. Even more persuasive are what I would regard as his spontaneous complaint of flashbacks and a fear of police. I do not find his (limited) claims of little or no recollection of assistance: I attribute that to the [respondent’s] defensive and self-protective personality. Of particular importance in this context is his refusal to disclose to Dr Clarke information about his family, or his educational background.”
(6) The primary judge’s findings with respect to the credit of Jackson
80 We have already referred at [68] above to her Honour’s observation that, amongst other things, Jackson had voluntarily acknowledged that his recollection of the events in question had been “contaminated” by repeated examination and cross-examination relating to the events of 6 February 2003. At [95]-[103] she recorded the various accounts given by Jackson of the events in question. She noted (at [100]) that in cross-examination Jackson agreed that portions of his versions of the events contained in both his statement and notebook made on 6 February 2003 were incorrect and misleading.
81 At [103] her Honour remarked that it was during the course of cross-examination on the various versions he had previously given, that Jackson explained how he had arrived at his current version as related in his evidence-in-chief, namely, that it was the investigator engaged by his solicitor when preparing for his defence of assaulting the respondent, who suggested to him that it was unlikely, if not impossible, that the events had occurred as he had initially described them. At [104] she commented that it was not clear to her why this was so although it may have had something to do with reconciling Jackson’s description of what happened with the photographic evidence obtained by McAlister.
82 The primary judge did not however make any express finding as to Jackson’s credit or as to the reliability of his evidence as a consequence of the various versions of events which he had given and aspects of which he had, in cross-examination at trial, abandoned. Rather, at [107]–[108] she returned to the “bare essentials of the accounts given by” the respondent and Jackson in apparent addition to what she had written at [50] and [51] of her reasons (extracted at [45] above). She described them in the following terms:
- “107. The [respondent]’s account was that he was lying, partly on his side, under the bed when Constable Jackson entered the room and looked under the bed and then stood up. Constable Jackson then took hold of the side of the bed, dragged it out (from the northern to the southern walls of the room), and tipped it on its side. The mattress may have fallen a little towards him. He was then sprayed with capsicum spray and struck with the baton.
- 108. Constable Jackson’s account was that, after entering the room, he crouched and looked under the bed where he saw the [respondent]. The next thing he knew was that the bed tilted up towards him, the mattress came over and fell on him. The bed tipped 90 degrees and came to rest with its left side lying on the floor.”
83 Her Honour then referred at [109] to the photographs that had been taken by McAlister depicting the bed on its side with its legs facing towards the southern wall of the bedroom. In particular she noted that the mattress was leaning against the upper side of the bed and the lower end of the mattress had slid out and become separated from the base and lay at an angle to the bed.
(7) The primary judge’s reasoning in accepting the version of events advanced by the respondent
84 At [92] the primary judge summarised eight separate reasons or circumstances advanced by the appellant in support of its submission that it was circumstantially implausible that the events occurred as described by the respondent. It was not suggested that her Honour’s summary of those contentions was erroneous and we therefore set them out verbatim:
335 We would therefore propose the following orders:
(a) Appeal allowed.
(b) Set aside the judgment and orders made by Simpson J on 7 May 2009.
(c) Verdict and judgment for the appellant with respect to the respondent's malicious prosecution cause of action as pleaded in paragraph 7 of the respondent's Amended Statement of Claim filed on 23 August 2006.
(d) Direct that a new trial be held limited to the issue of liability with respect to the respondent’s assault cause of action as pleaded in paragraph 4 of the respondent’s Amended Statement of Claim filed on 23 August 2006.
(e) The respondent to pay the appellant’s costs of the appeal but to have a certificate under the Suitors’ Fund Act 1951, if otherwise qualified.
(f) Direct that with the consent of the parties and the judge hearing the new trial on the assault cause of action, the latter proceed on evidence already admitted before Simpson J.
(h) The costs of the trial and the new trial to be determined by the judge hearing the new trial.(g) Direct that the judge hearing the new trial may admit further evidence upon application by either party, should he or she consider it appropriate to do so in the interests of justice.
06/08/2010 - Order ommitted in error - Paragraph(s) 335
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