Raad v State of New South Wales - [2017] NSWDC 63

District Court

New South Wales

Medium Neutral Citation: Raad v State of New South Wales [2017] NSWDC 63
Hearing dates: 17-21 October 2016, 6-7 December 2016, 23 February 2017
Date of orders: 23 March 2017
Decision date: 23 March 2017
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) There is to be judgment for the plaintiff;
(2) Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed judgment sum including interest;
(3) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed;
(4) Liberty to the parties to apply to vary the costs order in (3) above;
(5) The exhibits may be returned after 28 days.

Catchwords: Torts – assault – battery – false arrest – false imprisonment – malicious prosecution – lawfulness of police actions – whether arrest lawful
Legislation Cited: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Law Reform (Vicarious Liability) Act 1983 (NSW)
Liquor Act 2007 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: A v New South Wales (2007) 230 CLR 500
Bale v Mills [2011] NSWCA 226
Browne v Dunn (1893) 6 R 67
Cassell & Co Ltd v Broome (1972) AC 1027
Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46
Croucher v Cachia [2016] NSWCA 132
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1
Danckert v Tonkin [2015] NSWSC 1570
Dowse v State of New South Wales [2012] NSWCA 337
Elleray v Rail Corporation NSW [2017] NSWCA 23
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jones v Dunkel (1959) 101 CLR 298
R v Gabriel [2004] ACTSC 30
R v Phillips (1971) 45 ALJR 467
Ruddock v Taylor (2005) 222 CLR 612
Sangha v Baxter [2009] NSWCA 78
State of New South Wales v Abed [2014] NSWCA 419
State of New South Wales v Koumdjiev [2005] NSWCA 247
State of New South Wales v McMaster [2015] NSWCA 228
State of New South Wales v Robinson [2016] NSWCA 334
State of New South Wales v TD [2013] NSWCA 32
Varty v Director of Public Prosecutions (NSW) [2015] NSWSC 304
Woodley v Boyd [2001] NSWCA 35
Zaravinos v State of New South Wales (2004) 62 NSWLR 58
Category: Principal judgment
Parties: Johnny Raad (Plaintiff)
State of New South Wales (Defendant)
Representation:
Counsel:
A Canceri (Plaintiff)
M Hutchings (Defendant)
Solicitors:
O'Brien Solicitors (Plaintiff)
Henry Davis York (Defendant)

File Number(s): 2015/00119450

Judgment

The plaintiff claims damages in relation to the conduct of police officers for whom the defendant is liable under the Law Reform (Vicarious Liability) Act 1983 (NSW) which allegedly occurred in the early morning hours of Sunday 10 June 2012 primarily around the vicinity of the Albion Hotel at 135 George Street, Parramatta, in New South Wales.

The Amended Statement of Claim

By an Amended Statement of Claim filed in court with leave on 6 December 2016, the plaintiff brings claims for damages against the defendant in the torts of malicious prosecution (paragraphs 24-27), assault, battery and false imprisonment (paragraphs 28-30). Aggravated and exemplary damages are also sought in relation to each of the torts pleaded.
The important facts pleaded in the Amended Statement of Claim are as follows:

At about 12.30am on 10 June 2012 the plaintiff, Mr Johnny Raad, and his wife, Mrs Ann Raad, attended the Albion Hotel in Parramatta (paragraph 3);

At about 3.15am on 10 June 2012 the plaintiff and his wife approached a male security officer within the Albion Hotel enquiring about whether there was anywhere where food could be purchased. It is asserted that the security officer did not appear to understand the enquiry and the plaintiff then said to him words to the effect of “don’t worry about it” (paragraph 4);

A short time later whilst the plaintiff and his wife were still inside the Albion Hotel, the same security officer approached the plaintiff and asked to have a word with him outside the hotel. The plaintiff followed the security officer outside and stood with the security officer at the entrance of the hotel (paragraph 5);

The security officer is alleged to have said to the plaintiff words to the effect “you are not going back in because you are intoxicated”. It is asserted that the plaintiff advised the security officer that he was not intoxicated and it was his turn to drive that evening (paragraph 6);

The plaintiff then said he needed to get his wife and approached the entrance to the hotel. The security officer allegedly grabbed the arm of the plaintiff and said he could not go back in. It is said that a short time late the plaintiff’s wife exited the hotel. The plaintiff was soon after allegedly approached by a security guard the plaintiff now knows as Ali who pushed the plaintiff in the chest with his chest and then grabbed the plaintiff’s arm and yelled verbal abuse at the plaintiff (paragraphs 7-9);

As a result of the actions of the security guard Ali, the plaintiff requested security personnel in the area to call the police to report the assault on him by Ali (paragraph 10);

A short time later it is alleged Police Officers Frith and Blades exited the hotel and approached the plaintiff who told Officer Frith that he had been assaulted by Ali. The plaintiff was asked for identification by Officer Frith which was provided in the form of his New South Wales driver’s licence (paragraphs 11-12);

Officer Blades then allegedly said to the plaintiff words to the effect “you will be getting a ticket”. The plaintiff responded with words to the effect “what for, I have been assaulted?” Officer Blades is then said to have handed to the plaintiff’s wife an infringement notice which alleged that the plaintiff had committed the offence of “fail to leave premises when required” (paragraphs 12-14);

The plaintiff then pleads that as he realised that the police were not taking his complaint seriously, he and his wife began walking away from the vicinity of the hotel entrance and walked for approximately 40 metres towards Harris Street. It is pleaded that Officers Gedeon, Blades, Restuccia and the security guard Ali then followed the plaintiff and his wife (paragraphs 15-16);

It is pleaded that Officer Gedeon approached the plaintiff and the plaintiff said to him words to the effect “you should have seen I wasn’t intoxicated because we were there when you hugged your friend in the club”. It is alleged that Constable Gedeon reacted to this comment by clenching his teeth. It is further alleged that Officers Blades and Gedeon then grabbed the plaintiff by the arms and handcuffed his hands behind his back (paragraphs 15-18);

It is alleged that the plaintiff was then escorted across the road by police and force was used by Officers Blades and Gedeon to place the plaintiff in the rear of a caged police vehicle. The plaintiff was then conveyed to Parramatta Police Station where he was introduced to the Custody Manager at approximately 4am on 10 June 2012. It is further alleged that at about 6am on 10 June 2012 Officer Blades approached the plaintiff and then said he could go (paragraphs 19-21);

Upon being released from custody it is alleged that the plaintiff attempted to make a formal complaint about how he had been treated by police. It is alleged that Officer Blades advised the plaintiff that he would have to wait until a supervisor arrived and when the plaintiff walked out of the police station to have a cigarette he was locked out of the police station and Constable Blades refused to re-open the doors to the police station (paragraph 22);

It is alleged that the plaintiff elected to have the infringement notice heard at court. The matter proceeded to hearing and on 23 January 2013 it is alleged that the charge against the plaintiff was dismissed by the Local Court at Parramatta.

In answer to the Amended Statement of Claim, the defendant in its Defence filed 23 September 2015, pleads in summary as follows:

It admits that the Crown is vicariously liable for the conduct of the police officers should the torts alleged in the proceedings be proved (paragraph 1);

It admits that the plaintiff and his wife were at the Albion Hotel at the times pleaded in the Statement of Claim (paragraph 2);

It does not admit the allegations in relation to what occurred prior to the arrival of the police (paragraph 3);

It says that the plaintiff was directed to leave the vicinity of the hotel on several occasions by Officer Blades and that the plaintiff was asked for identification and provided his New South Wales driver’s licence (paragraph 4);

It says that the plaintiff failed to leave the vicinity of the hotel when directed by Officer Blades and was issued with an infringement notice for failing to leave the hotel (paragraph 5(c));

It says that the infringement notice was handed to the plaintiff’s wife as the plaintiff refused to take the infringement notice (paragraph 5);

It says that the plaintiff failed to leave the vicinity of the hotel and became argumentative and quarrelsome and Constable Blades assessed the plaintiff as intoxicated and that the plaintiff was subsequently handcuffed (paragraph 7);

It says that the plaintiff was escorted across Harris Street to a police caged vehicle. It pleads that the plaintiff refused to get in to the vehicle and was being argumentative and was resisting and then force that was reasonably necessary was used to place the plaintiff into the police vehicle (paragraph 8);

The Defence pleads that the plaintiff was conveyed to Parramatta Police Station at approximately 3.50am, arrived there at approximately 4am and was entered into custody at approximately 4.23am. It also asserts that the plaintiff was released from custody at approximately 4.53am to his wife (paragraphs 9-10);

It admits that Magistrate Marsden dismissed the charge of “excluded person remain in vicinity of licensed premises” on 23 January 2013 (paragraph 12);

The various tort claims alleged are denied. The defendant also denies that the plaintiff is entitled to any damages at all including exemplary and aggravated damages. It further pleads that at all material times the actions of the police were reasonable and lawfully justified under Section 77 of the Liquor Act 2007 (NSW) and Sections 99(3)(b), 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). It is specifically pleaded that no more than reasonable force was used in the circumstances and that the plaintiff’s detention/imprisonment followed the plaintiff’s lawful arrest (paragraphs 14-17);

By way of further defence, the defendant pleads Sections 47-50 of the Civil Liability Act 2002 (NSW) (“CLA”) on the basis that the plaintiff was intoxicated and contributory negligence should be found.

At the commencement of the final hearing, after identifying the relevant pleadings then relied on, the court brought to the attention of the parties the decision of the Court of Appeal in Croucher v Cachia [2016] NSWCA 132. In particular, the court indicated that this decision may have some bearing on the plaintiff’s pleading of the tort of battery and whether it fell within Section 3B(1)(a) of the CLA on the basis that the battery alleged was “an intentional act that is done by the person with intent to cause injury” to the plaintiff.
Counsel for the plaintiff obtained instructions, and indicated that the plaintiff would plead first, that the police officers in question for whom the defendant was liable intended to cause injury to the plaintiff and, in the alternative, that the injury caused to the plaintiff was negligently caused by the police officers for whom the defendant was liable. This was reflected in the amendment in paragraph 28 of the Amended Statement of Claim.
It is clear from the Schedule of Damages handed up by counsel for the plaintiff, and the plaintiff’s written submissions, that the primary damages sought by the plaintiff relate to alleged injuries to his knees which he asserts occurred when he was forcefully placed in the police vehicle for conveyance to Parramatta Police Station. It is claimed by the plaintiff that at the time he was handcuffed with his arms behind his back and when he was half way into the vehicle he was forcefully pushed from behind by police officers and landed heavily on his knees causing injury.
As stated above, it is not in dispute that the Magistrate in the Local Court found that the offence of “excluded person remain in vicinity of licensed premises” was not established and the charge against the plaintiff was dismissed on 23 January 2013 following a reserved decision.

Preliminary comments in relation to the proceedings

As often occurs in cases where torts are alleged by arrested persons against police officers, there are starkly differing accounts between the plaintiff and his wife and the police officers for whom the defendant is vicariously liable as to what occurred after the plaintiff left the Albion Hotel and prior to and after the plaintiff’s arrest in the early morning hours of 10 June 2012.
In order to determine the issues in dispute between the parties, it is necessary for the court to make factual findings and to decide which account or accounts it prefers as to what occurred.
In making its factual findings, the Court is not bound to accept any of that which a particular witness attests to and similarly may accept part only of a particular witness’s evidence: Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [118]-[123]; Danckert v Tonkin [2015] NSWSC 1570 at [152]. Consequently, it does not follow from the fact that part of the evidence of a witness is rejected that other aspects must also be rejected and that is so even if it be found that the witness was lying: Sangha v Baxter [2009] NSWCA 78 at [155]-[156]; Croucher v Cachia [2016] NSWCA 132 at [129].
In determining the important factual findings which must be made, the Court will take into account all of the evidence as well as other relevant matters including the following:

The events in question in these proceedings occurred over four years ago and there are likely to be deficiencies in witnesses’ recollections, particularly in regard to the detail of what occurred and was said in the immediate vicinity of the Albion Hotel at the relevant time;

The plaintiff was allegedly very upset at the time in relation to his exclusion from the Albion Hotel and what he perceived to be the reaction of police at the time to his complaints of the assault. He had also consumed on his evidence a little more than one glass of beer at the time and his wife had had two alcoholic drinks;

There is CCTV footage of some of the events in question in the present case. Some considerable weight should be given to this evidence while conceding the limitations in it. Generally speaking, weight should be given by the court to contemporaneous records unless it is accepted that those records have been manipulated or doctored in some way or are erroneous or unreliable or relevantly incomplete;

The majority of the High Court stated as follows in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31]:

“[31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”

Some of the witnesses in the present case have already given evidence in the Local Court in relation to the charge against the plaintiff. This applies to the plaintiff, his wife, Senior Constable Blades and Senior Constable Frith;

The plaintiff has in substance by his version and the submissions which have been made on his behalf, alleged that the police versions of what occurred outside the Albion Hotel on 10 June 2012 have been invented and are erroneous, or at least exaggerated, particularly that of Senior Constable Blades.

I will now consider the significant evidence relied upon by each of the parties.

The plaintiff’s oral evidence

The plaintiff gave evidence that he was born in May 1969 and resided at Liverpool in Sydney with his wife, Ann Raad, and his two children. He said that he was educated to Year 10 at Punchbowl Boys High School and had worked in various family businesses as well as undertaking some work as an actor. He said that the family businesses had been businesses of various types including a fruit business and an amusement centre.
Mr Raad gave evidence in chief that on the evening prior to 10 June 2012 he had been at home with his wife and his child. He said that a baby sitter had arrived and after that his wife and he had rested before going out. During that day he had worked in the family business.
Mr Raad gave evidence that he and his wife left in their vehicle at about 11.30pm and after driving around for a while decided to go to the Albion Hotel. He said he drove the motor vehicle and he had not been drinking.
He gave evidence that he and his wife arrived at the Albion Hotel at Parramatta at some time after midnight. Mr Raad gave evidence in chief that the Albion Hotel only had one entrance which was accessed through walking up a long driveway.
Mr Raad said that when he and his wife arrived at the Albion Hotel they walked around, they danced a bit, he left on occasions to smoke and as he was driving, he only had drunk one glass of Victoria Bitter beer. He gave evidence that at about 3.20am he and his wife had been in the beer garden section and they asked a security guard if he knew where they could buy food: T17.24.
Soon after this, Mr Raad said that the security guard had followed them and had tapped him on the shoulder and asked to have a word with him outside the hotel: T 17.37. This was soon after he had purchased a second glass of Victoria Bitter beer.
The plaintiff gave evidence that he followed the guard outside the hotel and noted that the guard kept walking until he was some distance from the entrance to the hotel. The guard then said to him words to the effect that he was “intoxicated” and that he could not re-enter the hotel: T 18.11. The plaintiff stated to the guard that he was not intoxicated and he wanted to go and get his wife. The security guard indicated that he would go into the hotel to get her.
The plaintiff’s wife then came out to join the plaintiff. Shortly after this time the plaintiff stated that another security guard came up to the plaintiff and acted in a very aggressive manner, swearing at the plaintiff and pushing the plaintiff with his chest and arms into the plaintiff’s chest: T 18.24. The plaintiff indicated that the security guard who did this was a large man.
The plaintiff then gave evidence in chief that he asked the other security guards to call the police as he had been assaulted by the large security guard. The plaintiff said that he waited outside the entrance to the hotel for the police to arrive. At the time, he was waiting with his wife in the driveway which led to Harris Street.
The plaintiff gave evidence in chief that the police turned up and there were about five police officers. The plaintiff said he was approached by a person who he now understood to be Senior Constable Frith and he told Senior Constable Frith that he had asked for the police because he had been asked to leave the premises as he was intoxicated but he disputed that he was intoxicated and had been assaulted by a guard: T 19.33. The plaintiff said that at this time he noted that a female officer who he identified at Constable Restuccia was giggling and he asked her “what was funny”. The plaintiff was asked for identification and he produced his New South Wales driver’s licence: T 20.27. He then noticed that a constable who he later identified as Constable Blades was writing something down. He asked the constable what he was writing and he said “I am giving you a ticket”: T 20.8. The constable then gave a penalty notice to the plaintiff’s wife wrapped around the plaintiff’s driver’s licence. The plaintiff observed that this was the penalty notice which later became Exhibit F in the proceedings.

The plaintiff then gave evidence in chief that he and his wife started to walk down the driveway of the hotel property towards Harris Street. He then asserted that Constable Blades yelled out at him words to the effect “you are not going anywhere yet”. The plaintiff then said that his wife said words to the effect to Constable Blades “make up your mind do you want us to go or not?”: T 21.32. The plaintiff and his wife soon after proceeded to walk down the driveway and got to the end to Harris Street. The plaintiff said he did not cross the street but changed his mind because he became “paranoid” as the police were following him and he did not wish to cross the road to the park. He returned to the footpath: T 22.1. At this time he said the police had followed him and there were approximately four police officers there but not Constable Frith: T 22.31.
The plaintiff then said to an officer who he later understood to be Constable Gedeon words to the effect “you should have known I was not intoxicated as I saw you in the hotel near me when you hugged your friend”. The plaintiff said that Constable Gedeon appeared to become upset at what he had said and he made a growling noise at the plaintiff and clenched his teeth: T 22.49. The plaintiff said he was referring to an incident where he had seen police within the Albion Hotel when he was there with his wife and he had noted that Constable Gedeon had hugged a friend who was not in uniform: T 23.11-.19.
The plaintiff gave evidence in chief that after he had said this to Constable Gedeon and the constable had growled at him, officers came at him from “every direction”: T 27.28. He said that there were several officers and they arrested him and handcuffed him behind his back. He gave evidence that he offered no resistance to the police but asked “why are you arresting me?”: T 27.50. The plaintiff gave evidence that he received no response to this question. He said that he asked the same question to another female police officer who turned up and no response was received again. The plaintiff gave evidence in chief that he was taken across the road to a police vehicle which was situated near the park and was placed in the vehicle. The plaintiff said that at this time he was concerned whether his wife had money to obtain a taxi. He said that as he was halfway into the vehicle he asked his wife whether she had any money and Constable Blades said to her words to the effect that she should have enough money as the plaintiff had been buying her drinks all night: T 28.46. The plaintiff said that at this time he was pushed very hard from behind as he was halfway into the vehicle having stepped up and he landed heavily on his knees and experienced severe pain: T 29.20. He said the doors of the police vehicle were then closed behind him.
The plaintiff indicated that he found it very difficult having been pushed into the vehicle onto his knees and being handcuffed from behind to get up from that position in the vehicle: T 29.29.
The plaintiff gave evidence that he was then taken to Parramatta Police Station and after his personal belongings had been taken he was placed in a cell. He said he could not describe how he felt following his treatment by the police and he had never been treated that way before: T 29.42. He gave evidence that the handcuffs were taken off him at the station.
The plaintiff then gave evidence in chief that he stayed there until about 5am when his wife arrived at the station. The plaintiff said that at about this time Constable Blades appeared at the cell door and said words to him to the effect “You seem like a nice guy. You can go.”: T 30.10. The plaintiff then said he was ushered out from the cell and said words to the effect “I want to make a formal complaint to your supervisor”. Constable Blades then allegedly said to him there is no supervisor here at the present moment but he will be here soon. The plaintiff indicated that he would wait outside and have a smoke until the supervisor arrived. He and his wife then left the police station and at that stage he was locked out and could not get back in. He said that his wife started to cry at this stage and he drove them home: T 31.17.
The plaintiff gave evidence that he had lost the penalty notice at some stage. He then contacted the police station and asked whether they had found it and was told that a reminder notice would be sent out to him. He then said that he received a letter with the original penalty notice in it. This was about two weeks after 10 June 2012: T 32.6. The plaintiff decided that he wished to dispute the penalty in court and represented himself in proceedings in the Local Court at Parramatta before Magistrate Marsden. The plaintiff gave evidence that Constable Blades and Senior Constable Frith gave evidence for the prosecution in the Local Court proceedings. He stated that after a hearing at which his wife and he gave evidence the Magistrate reserved his decision and dismissed the proceedings on 23 January 2013: T 33.19-.24.
The plaintiff said that he found the experience of representing himself in the Local Court to be “extremely stressful” but he felt he had to do it.
The plaintiff gave evidence that prior to the incident on 10 June 2012 his knees had been “fine” and he had had no “major issues” with either one of them: T 36.23. He could squat and lift heavy weights without problems.
After the incident on 10 June 2012 the plaintiff gave evidence that he had problems with his knees: T 34.22. They became a lot worse after the night in question and started to lock up. He found the pain on occasions to be extreme and there was locking and clicking in his knees. He found it difficult to squat and sometimes it was difficult to walk. He also found lifting difficult as pressure was placed on the knees. He had lost some weight which helped and had some physiotherapy which assisted to some degree.
At the time the plaintiff worked in retail in his family business and found it a lot more difficult to carry large boxes for the purposes of restocking. He gave evidence that his family business closed down in 2013: T 35.45. Since that time he has been looking after his children and his wife has been working: T 35.48. He hoped in the future to operate a business in the retail or food industries.
The plaintiff was subjected to extensive cross-examination which occurred over about two days.
In very general terms, the plaintiff maintained the account of the incident which he had given in his oral evidence in chief.
The plaintiff was first cross-examined in relation to the events which occurred when he arrived at Parramatta Police Station after having been arrested. The plaintiff gave the following evidence in cross-examination:

When he arrived at the police station he was taken to the custody room where he dealt with a female police officer who was the Custody Manager. He agreed that the police officer asked him a number of questions and he was then placed in a cell: T 37.33-.47. The plaintiff gave evidence that he said to the Custody Manager words to the effect “this is wrong” before he was locked in a cell. He said he was very unhappy and he asked “why am I here?”: T 39.8. The plaintiff said he did not recall the detail of the exchanges between him and the Custody Manager at the time: T 39.22. The plaintiff disputed that he was told by the Custody Manager that the reason he had been arrested was because he had failed to leave the vicinity of licensed premises, being the Albion Hotel: T 40.1. The plaintiff said in cross-examination that he only found out why he had been arrested when he had to go to court: T 40.41;

The plaintiff was cross-examined in relation to the pain he claimed he experienced in his knees when he was placed in the police van. He said he did not report the painful knees to the custody manager when he arrived at Parramatta Police Station as the police were not listening to him and he was left by himself in the cell after the Custody Manager dealt with him: T 113.4.

The plaintiff then said that Constable Blades came to the cell and said to him words to the effect “you seem to be a nice guy, you can go”: T 41.14. He said that Constable Blades opened the cell door and was let into a corridor where the Custody Officer and another male police officer were present: T 41.38. The police “hurried” the plaintiff out of the corridor and he saw that his wife was in the reception area: T 42.6;

The plaintiff then gave evidence that Constable Blades locked the public entrance to the police station after he and his wife had left: T 43.24. When asked how he knew that Constable Blades had done this and would not open the doors, the plaintiff gave evidence that he saw Constable Blades and a fellow officer apparently laughing at him. He said he connected the laughter to Constable Blades’ locking him out of the police station so he could not complain: T 43.38-.48;

The plaintiff gave evidence that he then returned to the Albion Hotel to get his keys from the cloakroom area at the hotel. The plaintiff’s car was parked in the vicinity of the Albion Hotel and after speaking to a security guard the keys were returned to him. The plaintiff gave evidence that he had surrendered his keys to the custody of the hotel staff when he arrived at the hotel: T 44-45;

It was put to the plaintiff that he had made complaints in relation to the conduct of the police to the police Custody Manager on his arrival. The plaintiff said he might have done so but he could not remember doing it: T 48.5. It was then put to the plaintiff that the female police Custody Manager had told him to put his complaint in writing and he said he could not recall that being said by her: T 48.20;

The plaintiff gave evidence that about two days after 10 June 2012 he spoke to an Inspector Bonello: T 49.33. He agreed that Inspector Bonello said that if the plaintiff wished to make a formal complaint he should put it in writing but he should first concentrate on contesting the charge against him and plead not guilty if that is what he wished to do. The plaintiff then said that he could not remember the details of what Inspector Bonello had said to him: T 50.43.

The plaintiff was cross-examined in relation to his prior contact with police officers. He said that he had never been handcuffed before or thrown into a police wagon: T 50.48. He said he had dealt with police some 22 years before and had been convicted of an offence. He said he could not remember the details of whether he had been arrested but knew he had never been handcuffed or taken by a police car to the police station in custody. When asked whether he agreed that he had been convicted for receiving stolen goods the plaintiff said that that was a “big mistake” and was a long time ago and he had forgotten the details of it: T 51-52.
The plaintiff was then cross-examined in relation to what occurred at the Albion Hotel prior to his arrest. The following more significant matters were raised in relation to this aspect of the cross-examination:

It was put to the plaintiff that when he was told he could not remain in the premises or re-enter the premises after he initially left the Albion Hotel that he argued with security staff. The plaintiff denied this and he said that he told the security officer that he was not intoxicated: T 54.16;

In answer to questions in relation to his consumption of alcohol at the Albion Hotel between 12.30am and 3am, the plaintiff stated that he had only drunk one glass of Victoria Bitter beer and had ordered a second glass shortly before the security guard tapped him on the shoulder and only had a few sips of that beer: T 58.31-.42;

It was put to the plaintiff that after he exited the hotel with the security officer and was told that he could not go back into the hotel that he attempted to go back in. The plaintiff agreed with this and said that he attempted to go back in to get his wife: T 59.35;

The plaintiff conceded that he waited approximately 10 minutes for the police to arrive after he asked the security guards to call the police. Whilst he was waiting he said he spoke to a friend called Jason and to one of the security guards. He agreed that he was waiting for the police in the driveway and whilst he was waiting he was on Albion Hotel premises: T 66.9;

The plaintiff was asked what the police said when they arrived. The plaintiff gave evidence that the person he now knows as Senior Constable Frith said to him words to the effect “what’s happening?”: T 66.43. He then said that he started to tell the police what had occurred. The plaintiff denied that any of the police had identified themselves by name or rank or that they were from Parramatta Police Station: T 67.1-.7. The plaintiff said that during the whole night leading up to when he was placed in custody no police officer had identified themselves or said they were from the Parramatta Police Station: T 67.28;

The plaintiff then said that he noticed the police officer who he now knows to be Constable Blades writing something up. The officer said to him: “You are getting a ticket” for “failing to leave”: T 67.37-.48. The plaintiff indicated that he said to the officer: “I have been waiting for you”: T 67.48. The plaintiff gave evidence that the first time he was told he was obligated to leave the area was after his wife had been given the ticket by Constable Blades wrapped around his licence: T 68.38. The plaintiff said that he took the ticket and read it and that told him what the ticket was for: T 69.23-.28;

It was put to the plaintiff that Constable Blades upon arrival told him to calm down, take deep breaths and that there was no need to get worked up: T 72.3. The plaintiff denied that this was spoken to him. He also denied that he told Constable Blades that he did not know where his wife was: T 72.6. He said that his wife was already out when the police arrived at the hotel. He also denied that Constable Blades said to him that it was an offence to remain on the premises after he was excluded: T 72.26;

The plaintiff was cross-examined in relation to him mentioning the name of a senior police officer who he knew and was told by one of the police officers “don’t throw names at us. It won’t help you”. The plaintiff conceded that he had mentioned that he had known a senior police officer because he wished to indicate that he was not a troublemaker: T 73.8. The plaintiff said that the police showed no interest in his account of the assault on him and did not take notes. He said his intention was to tell the police what had occurred to him and then leave the premises: T 73.49-74.23;

It was put to the plaintiff that after he departed the premises he then came toward the entrance to the Albion Hotel and he denied that: T 74.48. It was put to the plaintiff that Constable Blades had told him that he was obliged to leave the area and that he replied in words to the effect “I don’t have to leave, I know the law”. The plaintiff denied this: T 75.50. The plaintiff also denied that Constable Blades had said to him that if he refused to leave the premises he would get a ticket and also denied that any police officer had told him he was obliged to go 50 metres away from the licensed premises: T 76.37-.49;

It was put to the plaintiff that he did not leave the premises after he was given the ticket by police. The plaintiff said that he walked 30 metres down the driveway with his wife and the police followed him. He arrived at the footpath and went to cross the road but he became “really worried” as there was a park on the other side and he was concerned that the police were following him. He said that he was worried that “something is going to happen next”: T 77.4-79.25. He agreed that he was upset and had become more upset about what had happened following the assault and being given the ticket: T 79.28. He said he formed the view that it was better that he not cross over the road to the park. The police were very close to him at this time: T 79.45;

The plaintiff said that Constable Blades said to him “I am going to get you a taxi” and that he replied “I don’t want a taxi”. The plaintiff agreed that he stepped back onto the footpath from the roadway: T 81.39.

It was at this time that the plaintiff claimed he had the conversation with Constable Gedeon about seeing him hug a person within the bar area when the plaintiff had been in the hotel. The plaintiff said Constable Gedeon growled at him and the police “swarmed” around him and arrested him: T 105.15-.38. The plaintiff denied that he was told words to the effect “you are under arrest for failing to quit and being intoxicated”: T 84.29. The plaintiff said that he had no idea why he was being detained: T 84.39.

The plaintiff gave evidence that when he was arrested by the police officers there were five and “maybe more” officers involved. The plaintiff said that he was “attacked” and that all the officers “grabbed” him. He said the way they arrested him was as if he had been “rumbled”: T 106.1-.21.

The plaintiff gave evidence that he felt paranoid at the time in relation to the events which had occurred at the hotel. He said he did not know why he was being treated the way he had been treated. He agreed that he was keen to say to both the security guards and the police that he had done nothing wrong and that he was not intoxicated. He denied that he told police that he had been kicked out for no reason: T 79.14; T 146.21;

It was put to the plaintiff in cross-examination that when he was on the footpath shortly before he was arrested that he was speaking loudly to police and asserting a right to go back into the Albion Hotel. He denied this although he agreed that he was very upset: T 238.26-239.1. It was further put to Mr Raad that Constable Blades said to him words to the effect: “I am Constable Blades from Parramatta Police Station. I am giving you a formal direction to the leave the hotel. You must leave the 50 metre radius of the hotel and you cannot return to the hotel for the next 12 hours. If you don’t leave now, you will be arrested.”: T 239.6-.15 The plaintiff denied that this direction was given to him or that he said words to the effect “I am not going”: T 239.19;

It was put to the plaintiff in cross-examination that he did not witness Constable Gedeon hugging a male patron whilst a group of police officers were standing in the Albion Hotel near the bar area where the plaintiff was standing with his wife at a table: T 242.50-245.29. The plaintiff rejected this and said that he clearly saw the embrace where Constable Gedeon was in full uniform and the male patron embraced was in casual clothes: T 244.

An important aspect of the plaintiff’s evidence was what occurred when he was placed in the police van after having been arrested and put in handcuffs with his hands behind his back. There were various versions given:

In chief the plaintiff gave the following evidence:

“Q. What happened?
A. They proceeded to put me in the vehicle and my wife was there and I just had to make sure that my wife’s going to be okay, if she had any money because she was being left by herself behind.
Q. Where was your wife, was she near there--
A. She, she was standing there as well.
Q. You still had your hands handcuffed behind your back?
A. Correct.
Q. You got into the vehicle?
A. Yes I was sort of halfway in.
Q. Can you describe how that occurred?
A. I was halfway in the vehicle and I was still asking about my wife, if she had any money, I was worried about her, and then Constable Blades made the comment of - to my wife, not to myself - that “You should have enough money, he’s been buying you drinks all night”.
Q. What happened after that?
A. And that’s when they pushed me really hard. I don’t know, I don’t—
Q. Do you know who it was that pushed you?
A. I don’t know, I don’t know.
Q. Was it a push from behind?
A. Yeah, well I was sort of sideways so I was pushed from the side really, like, I think it was more than one.

Q. When you were pushed where were you?
A. I was half - my half body was in the half of it, like sort of entering the vehicle, half of it.
Q. Do you have to step up to get into the--
A. Yes, yes you do I think, yes.
Q. --into the vehicle?
A. From memory that’s correct yes.
Q. What happened next, did you remain on your feet?
A. No, I landed on my knees and I had a, like it was very painful and I had trouble getting up.
Q. Where did you feel the pain and discomfort, was it in one knee or both knees?
A. It, it was - I think it was initially I couldn’t tell where the pain - it was like one but it was - they were both painful at the end.
Q. I take it the door was closed and you were taken away?
A. Yes and I had to try to get up myself. It was very hard because I was a lot bigger then too.
Q. You were a lot bigger then?
A. Yes I was like 12 kilos more than what I am now.” (T 28.29-T 29.33) (emphasis added);

Further consistent evidence was given at T 61.31-T 62.12;

Later in his cross-examination the plaintiff said the following at T 111.36-T 112.26:

“Q. You say that you were halfway in?
A. Yes and I was speaking to my wife to make sure that she's got money.
Q. So you were speaking to your wife and halfway into the custody compartment?
A. That's right and that's when I was pushed.
Q. Coming to that. You say you were pushed?
A. That's correct.
Q. But you can't tell his Honour who pushed you?
A. No but it was more than one.
Q. How do you know that?
A. Because the way it was, it was like there was a lot of force behind it.
It wasn't just one officer, I don't think it was one officer. Like, you'd have to - unfortunately the footage, you can't see it because of the camera view that they've used but yeah, a different camera would have showed it probably.
Q. How many do you say--
A. I don't know. I honestly can't give you a number. I won't say something that I'm not sure of it - I'm not sure.
Q. But you're sure it's more than one?
A. It felt like it. It felt like it was more than one, yes. I was still speaking to my wife at that time and then he just mentioned that, "You should have enough money to - he's been buying you drinks all night," that's what he said to her and then they pushed me in straight after that. As soon as he said that I went, I went flying inside.
Q. Flying?
A. Yeah, on my knees, yeah, pushed, yeah.
Q. You landed on your knees?
A. Yes, I--
Q. You didn't fall over, did you?
A. Sorry?
Q. You didn't fall over, did you?
A. No, I landed on my knees sideways, yes.” (emphasis added);

At T 228.30-.33 the plaintiff said as follows:

“Q. At no point were you pushed into the police vehicle with anyone’s intention to harm you?
A. I don’t know what their intention was, I don’t know what’s in their mind, but I was pushed.”;

The plaintiff was further cross-examined about this matter towards the end of his cross-examination: T 256.7-259.29. He gave evidence that his wife was in the immediate vicinity of the door of the police vehicle when he was placed in it. The plaintiff said he was pushed into the vehicle immediately after he had the conversation with his wife about money and Constable Blades said words to the effect: “You should have money; he has been buying you drinks all night”: T 257.23-.36. The plaintiff expressed the view that Constable Blades was one of the persons who pushed him but he did not see the identity of any other officers who may have been involved in him being pushed into the police vehicle: T 257.42-.47. The plaintiff gave evidence that he was pushed into the vehicle while he was turning around and speaking to his wife: T 258.18. He denied the suggestion that Constable Blades had not pushed him: T 258.47. The plaintiff also disagreed with the suggestion that no-one “threw” him into the vehicle: T 259.29.

The following matters including apparent inconsistencies were noted in the plaintiff’s evidence:

At T 19.48 the plaintiff said that Constable Frith who approached him first outside the entrance to the Albion Hotel said “nothing at all to him”. At T 66.42 the plaintiff inconsistently gave evidence that Constable Frith said to him “what’s going on here?” or “what’s happening?”;

The plaintiff gave inconsistent evidence in relation to the extent of his conversation with Constable Blades outside the Albion Hotel. At one point he said he did not speak to Constable Blades at all (T 71.40). At other points in his evidence the plaintiff gave evidence that he asked Constable Blades what he was doing when he was writing down something and he said that “I am giving you a ticket”: T 20.5-.10. Later, the plaintiff gave evidence that Constable Blades had asked him for his driver’s licence: T 20.27. On another occasion the plaintiff said that Constable Blades told him that he was getting a ticket for “failing to leave”: T 67.47. At another point in his evidence the plaintiff said that after he was given the ticket he was told by Constable Blades that he had “to leave the area because [he] had been excluded from licensed premises”: T 68.38. Later, the plaintiff gave inconsistent evidence in relation to that matter: T 69.24-.35. The plaintiff’s recollection was poor in relation to this central matter of what he was told by Constable Blades at about the time he was given the ticket;

The plaintiff gave significant evidence about his state of mind on the night in question. He initially said he was getting “very paranoid” (T 22.4). He later said he was “worried”, “paranoid”, “upset” and “very upset”: T 22.25; T 59.18; T 82.34-.46. The fact that the plaintiff was extremely worried and perceived himself as being “paranoid” is established by his evidence that he did not wish to cross the road to the park because he was worried that something might happen to him: T 78.4-T 79.41;

The plaintiff denied in cross-examination that the police appeared to him to be following him to ensure that he left the vicinity of the Albion Hotel. He also denied that he had been told on many occasions by the police officers to leave the vicinity of the hotel both before he was given the ticket and after he was given the ticket: T 203.6; T 210.10; T 239.15;

It was put to the plaintiff in cross-examination that he never complained to the New South Wales Police in relation to an assault by a security guard. The plaintiff denied this and said that he made the complaint in the driveway of the Albion Hotel as soon as the police turned up following his request: T 147.13-.21. The plaintiff did not give the detail of what he said to the police on this issue;

The plaintiff conceded in cross-examination that he was told more than once that he could not re-enter the premises after he had exited: T 167.39;

The plaintiff’s evidence in relation to his conversation with Constable Gedeon which immediately preceded his arrest varied. At one stage the plaintiff said that he mentioned to Constable Gedeon the fact that Constable Gedeon had hugged a friend in the night club: T 27.24. At another stage in his evidence the plaintiff said that he “walked up to” Constable Gedeon and had the conversation with him: T 22.42. The film which is Exhibit 1 clearly shows the plaintiff walking away from the club after he had proceeded down the driveway and then returning to the group of police officers and having a further conversation with them. This is inconsistent in my view with the plaintiff leaving the vicinity of the premises;

The plaintiff gave evidence that he believed that the Custody Officer at Parramatta Police Station asked him “a series of questions”: T 37.33-.47. Later the plaintiff said that he could not remember whether he was asked any questions by the Custody Manager when he arrived at the police station: T 114.25. He then soon after, changed this evidence to say that he was asked whether he had anything sharp on him: T 114.30;

On the second day of the hearing the plaintiff was asked questions in relation to his recollection of what he was asked by the Custody Manager upon arriving at Parramatta Police Station. The plaintiff initially said that he could not recall being asked any questions by the Custody Manager and denied that he had refused to answer questions. This should be contrasted with the plaintiff’s evidence at T 114.30 where the plaintiff said:

“A. No they just asked me if I've got anything sharp on me and all that sort of stuff and they - he - and I told him, "Is it all right if I leave my belt on because my pants will fall down?" and that's about it, and they just took my stuff. That's the only questions. They asked me if I had anything on me.”

The plaintiff was then taken to his evidence at T 37.33-.47 when he said he believed he answered a series of question from the Custody Manager. Then the plaintiff said he recalled one question which he was asked: “Do you have anything on you?” Other than this, the plaintiff said that he did not recall being asked questions although he conceded the possibility that he was asked a number of questions. On being pressed, the plaintiff gave clear evidence that he did not recall being asked questions apart from the one referred to above: “Do you have anything on you?”: T 120.30. These inconsistencies appear to show that the plaintiff has a poor recollection of what occurred when he arrived at the Parramatta Police Station and had initial contact with the Custody Officer;

At T 38.27 the plaintiff said that he never saw the Custody Manager at Parramatta Police Station again after he was locked up in his cell. This should be contrasted with his evidence at T 41.38 and T 42.13 that he later saw the Custody Manager when he was released from the cell;

The plaintiff gave evidence that he did not argue with the security staff after he left with the first security officer: T 54.13‑43. Film which is part of Exhibit 1 clearly shows the plaintiff spending a number of minutes apparently remonstrating with the security guards about his treatment before the alleged assault;

Further, the plaintiff agreed that he attempted to re-enter the hotel to get his wife: T 59.35;

The plaintiff gave evidence that his conversation with the security staff was very short soon after he left the premises: T 63.26-.50. The film which is Exhibit 1 shows the plaintiff apparently remonstrating with the various security staff for a period far in excess of 30 seconds: See also T 64.17-.23;

At T 74.5-.35 the plaintiff gave evidence that his intention was to leave the premises eventually after he had pleaded his case with police. The film Exhibit 1 shows the plaintiff spending considerable time talking with the police and then reluctantly leaving down the driveway and coming back to remonstrate with the police in the footpath area;

On a number of occasions the plaintiff gave evidence that he was never told why he was arrested: T 84.31. However, he later conceded that the Custody Manager might have told him the reason for his arrest: T 84.47;

The plaintiff gave evidence that the police officers were in the club for over an hour in the nightclub area: T 87.48. This is inconsistent with the film that shows the police officers entering through the casino entrance a relatively short period before the plaintiff was excluded;

The plaintiff seems to have misunderstood his obligation to leave the vicinity of the Albion Hotel premises. His evidence seems to suggest that if he was on the footpath he was beyond the area where he was restricted: see T 100.46-T 101.33;

The plaintiff gave evidence that he believed the police arrested him because of what he said to Constable Gedeon about hugging his friend in the bar (T 104.44) whereas later he said he did not really know why he was arrested: T 105.21;

The plaintiff gave contrasting evidence in relation to what occurred with him when he was arrested. He said the police “swarmed” on him (T 105.26) but later gave evidence that they “attacked” him (T 106.4). He also used the word “rumbled”: T 106.7. The film in Exhibit 1 is inconsistent with the police “attacking” him as opposed to the police arresting him on him walking back towards the police near the entrance to the hotel driveway: see also T 109.41.

At T 78.1-T 79.45, the plaintiff gave as his reason for not crossing the road that he was worried about crossing to the park because something may happen to him and he wanted to be safe. However, on the second day of the trial the plaintiff gave evidence that he came back because his wife had not followed him and this was the only reason for returning to the footpath having started to cross Harris Street: T 216.35. This is a clear inconsistency in the plaintiff’s account of his reason for returning towards police officers at the entrance to the driveway of the Albion Hotel.

I was able to view the plaintiff closely in giving his oral evidence over a period in excess of two days. The plaintiff was clearly still very upset and indignant in relation to what he perceived as his poor treatment by the Albion Hotel guards and police officers on the morning of 10 June 2012. At the commencement of his cross-examination, the plaintiff asserted that his recollections of the events of 10 June 2012 were “pretty good”: T 36.47. At the end of the cross-examination it was put to the plaintiff that in the light of his cross-examination he would accept that his memory was not complete of the events. The plaintiff conceded that there might be some aspects that he could not remember of the night in question: T 254.26-.42. He confirmed that he had spent a lot of time thinking about the matter, had discussed it with his wife and believed that the video footage supported his account. However, he accepted there were other interpretations available of the video footage: T 255.22.
In my view, the plaintiff essentially impressed as an honest witness who was attempting to give his best recollections of the events of 10 June 2012 as he recalled them. I do not consider that he was being deliberately dishonest in giving his evidence or that he was knowingly untruthful. He struck me as making every attempt to tell the truth and would make concessions on occasions, but often after considerable cross-examination. The plaintiff conceded on a number of occasions that he did not recall the detail of the events or the conversations he was party to of 10 June 2012. Examples include T 147.48; T 173.41; T 187.7; T 197.18; T 200.28; T 210.19.
It is clear to me, however, that the plaintiff was very upset, worried and distressed on the morning in question. He conceded as much in his evidence: T 78.10-79.45; T 146.21; T 146.24; T 186.25-.30; T 186.50-187.48. The plaintiff even described himself as becoming “paranoid” at the time: T 146.21. He was indignant in relation to being excluded from the hotel as he perceived it to be unwarranted. I think it very likely that he did complain frequently and loudly in relation to his exclusion both to the security officers and to the police. This in my view is confirmed by the film footage which will be discussed further below.
I consider it also likely that the plaintiff complained with a loud voice and could probably reasonably be interpreted at the time as being argumentative and quarrelsome both to the security staff and to the police. I also think it likely that the plaintiff was so intent on expressing his view of what had occurred or as he described it, “pleading his case”, that he did not hear everything that was said to him by either the security staff but, more likely, the police officers.
I therefore believe that the plaintiff’s evidence should be approached with some caution despite my impression that he was attempting to be honest in giving his evidence. I do not accept the defendant’s submission that the plaintiff is an unreliable witness on all matters: submissions paragraph 8. However, the matters I have set out above indicate to me that I should be cautious in accepting his evidence alone on a central matter.

The evidence of Mrs Ann Raad

Mrs Ann Raad, the wife of the plaintiff, gave oral evidence in the proceedings.
In general terms, Mrs Raad’s evidence was consistent with the plaintiff’s evidence although she agreed that she did not hear all of the conversations which occurred once the plaintiff had left the Albion Hotel.
Mrs Raad gave the following relevant evidence:

During the course of the night she drank two glasses of Moscato wine. The plaintiff from her observation had purchased two glasses of Victoria Bitter beer. Her husband had purchased the second glass of beer shortly before he was approached by the security guard: T 277.47; T 278.1;

Mrs Raad confirmed the plaintiff’s evidence in relation to the discussion with the security guard concerning the availability of food: T 278.20;

Mrs Raad gave evidence that when she emerged from the hotel she said to her husband, “What’s wrong” and that her husband replied “I am not allowed to go back in”. Mrs Raad said that she replied, “Why?”. The plaintiff then said words to her to the effect that he did not know: T 279.9;

Mrs Raad gave evidence that soon after one security guard approached the plaintiff in an aggressive manner. He said something to the plaintiff in what appeared to be the Arabic language and pushed the plaintiff using his chest and shoulder. At the time she was close to the plaintiff and this occurred in the front entrance area outside the hotel: T 279.9-.30. Mrs Raad gave evidence that the plaintiff then asked her to call for the police and they waited for the police to arrive: T 279.32;

Mrs Raad then gave evidence that police officers emerged from the hotel from the poker machine area door a few metres away from the hotel entrance and the plaintiff began to explain to the police that he had been assaulted: T 280.6-.40;

After some time one of the police officers decided to write a ticket and gave it to Mrs Raad which she then gave to the plaintiff. The ticket was provided with the plaintiff’s driver’s licence: T 280.43-281.20;

Mrs Raad said that she and the plaintiff then decided to leave and walk down the driveway. The plaintiff soon after said something to the police officers which upset them and the plaintiff was arrested (T 281.23-.29). She gave evidence that the officers had followed the plaintiff and her down the driveway to the footpath area. Mrs Raad said that she was really nervous at this time and was upset (T 283.1);

Mrs Raad gave evidence in chief that the plaintiff was handcuffed behind his back and was taken across the road to the police car. Mrs Raad confirmed that she could not hear everything that was said by the police to the plaintiff (T 283.37);

Mrs Raad confirmed the plaintiff’s evidence that he asked her whether she had money and she also confirmed Constable Blade’s response (T 283.40). Importantly, she confirmed in her evidence in chief that the police officers pushed the plaintiff into the police vehicle. She identified the pusher as Constable Blades and confirmed that he was wearing his badge: T 284.1-.12);

Mrs Raad was cross-examined in relation to the number of times that she had discussed the matter with the plaintiff and she confirmed that it was possible that she had discussed the events of the night with the plaintiff on more than one occasion, particularly after the Local Court proceedings had completed: T 284.41-286.2. Mrs Raad confirmed that she had seen the video footage of the events on 10 June 2012, although this was looking over the plaintiff’s shoulder when she saw it rather than sitting down and looking at it in detail: T 286;

Mrs Raad conceded that when the plaintiff followed the guard initially out of the hotel she was “intoxicated”: T 289.19;

Mrs Raad assessed the time between her stepping out of the hotel and the assault made on the plaintiff to be less than a minute: T 292.11. The film (Exhibit 1) suggests this assessment to be fairly accurate;

Mrs Raad confirmed that at this time the plaintiff was upset, speaking loudly, trying to explain his position and using his hands whilst he was talking: T 292.13-293.23; T 296.4-.18. In cross-examination Mrs Raad confirmed that after the plaintiff had been pushed by the guard that he said words to the effect, “Why are you doing that?”: T 295.20. She also confirmed in cross-examination the plaintiff had asked her to call the police: T 295.29. She said she did not do this because she did not want to leave the plaintiff;

In cross-examination Mrs Raad claimed that she looked at the name tags of the police officers who first arrived being Officers Frith, Gedeon, Restuccia and Blades and memorised their name tags. However, Mrs Raad confirmed that she had seen Exhibit B where the plaintiff had placed names on certain officers in the still photograph of the video footage prior to the proceedings: T 297.43-299.9;

In cross-examination Mrs Raad confirmed that Constable Blades came out to her when she was in the Parramatta Police Station reception area and said to her words to the effect, “I will release Johnny to you”. He had previously asked her for identification which she had produced: T 301.40; T 302.44. She accepted that she had agreed to take care of her husband: T 303.1;

Mrs Raad agreed in cross-examination that when Constable Blades started to write the ticket she and the plaintiff had decided to leave the Albion Hotel: T 303.43-304.20. She said that she did not hear the police saying to the plaintiff that he was required to leave: T 304.29. She confirmed that she could hear some of the words that the police were saying to the plaintiff but others she could not hear: T 305.6-.10. Mrs Raad confirmed that when they decided to leave Constable Blades said words to the effect, “Don’t go yet because I have got to give you the ticket”: T 306.24. She confirmed the plaintiff was not happy to receive the ticket: T 306.38;

Mrs Raad confirmed that the plaintiff had said something to Constable Gedeon which appeared to upset him and that the plaintiff was arrested and handcuffed soon after: T 306.49-307.9. She said she did not hear what the plaintiff had said but after he was handcuffed he said words to the effect that he “had done nothing wrong”: T 307.19; T 307.41;

Mrs Raad denied that the police had told the plaintiff repeatedly that remaining at the Albion Hotel was an offence: T 308.37-.47. She also said that she did not hear Constable Blades say to the plaintiff previously words to the effect, “You will now receive a ticket for failing to leave a licensed premises”: T 309.17;

Importantly, Mrs Raad confirmed the evidence of the plaintiff being pushed into the back of the vehicle after he had been arrested. In her evidence Mrs Raad used various descriptions including “push”, “chuck” and “thrown”: T 315.36; T 315.43; T 319.20. She said there were two male officers who did this, one of whom was Constable Blades. She confirmed that she was in the immediate vicinity of the side of the vehicle facing Constable Blades when the plaintiff was pushed into the vehicle. Mrs Raad said that the officers used their hands to push the plaintiff into the vehicle: T 320.10; T 321.27;

Mrs Raad said that she was left behind when the police vehicle departed and she caught a taxi to the Parramatta Police Station: T 323.10; T 314.40.

Overall, I formed a positive impression of Mrs Raad. She gave her evidence in a straightforward fashion and made concessions where appropriate as to her recollections. I accept her as a truthful witness. I also accept that she did not hear all of the conversations which were occurring at the time between the plaintiff and police officers, both outside the Albion Hotel, on the footpath when she and her husband had left the hotel site and when the plaintiff was arrested.

The plaintiff’s documentary evidence

The plaintiff tendered a number of documents in support of his case.
Exhibit A is a Google maps photograph with attached map of the vicinity of the Albion Hotel. The photograph is taken from Harris Street and reveals a long driveway up to the entrance to the hotel with a carpark on the left. The hotel building itself is to the right of the driveway and appears to have been constructed almost down to the footpath of Harris Street.
This is the driveway down which the plaintiff and his wife walked, followed by various police officers, on the morning of 10 June 2012 when he eventually was departing the Albion Hotel premises.
Exhibit B is a still photograph of police officers talking to Mr Raad on 10 June 2012 at 3.32am. It adds nothing to the film of the incident.
Exhibit F is asserted by the plaintiff to be the original penalty notice issued to him by Constable Blades on the early morning of 10 June 2012. The penalty notice says that it is in relation to “fail to quit”. The short title of the offence is indicated as follows: “Fail to leave premises when required”.
The plaintiff also tendered an amount of video footage in relation to events in and around the Albion Hotel on 10 June 2012.
Exhibit M tendered by the plaintiff was the police COPS report primarily prepared by Constable Blades. This is discussed further below.

The defendant’s evidence

The defendant tendered a substantial amount of evidence in support of its case.

Exhibit 1 – The film

Exhibit 1 consists of film taken from various security cameras both inside and outside the Albion Hotel on the morning of 10 June 2012.
The film provides substantial assistance in relation to the oral evidence given, particularly by the plaintiff.
The film depicts the plaintiff initially leaving the Albion Hotel with the security officer. The film also depicts the plaintiff apparently being highly indignant at being excluded from the hotel. It shows, consistent with the plaintiff’s evidence, that he initially attempted to re-enter the hotel, apparently to obtain his wife, and the guard stopping him re-entering and proceeding into the hotel to obtain his wife.
Contrary to the plaintiff’s oral evidence, the film shows that over several minutes the plaintiff had conversations with the security guards. The plaintiff can be seen waving his arms around. He seems to be indignant, upset and highly agitated by the events. Contrary to the plaintiff’s evidence, there appears to be substantial conversation between the plaintiff and the security guards.
The film also confirms a large security officer advancing menacingly on the plaintiff and the plaintiff retreating. This is generally consistent with the plaintiff’s evidence of the assault, although physical contact between the parties is not completely clear on the film.
The film also shows other security officers separating the plaintiff and the advancing security officer. The plaintiff continues apparently to plead his case with the security officers.
The film shows several police officers entering the Albion Hotel only a relatively short period prior to the events in question. This is inconsistent with the plaintiff’s evidence that police were present in the hotel for a considerable period while he was standing with his wife in the nightclub/bar area.
After the police arrive, there is then film which shows the plaintiff talking to the police over a period of several minutes and waving his arms around and gesticulating and pointing towards the security guards/entrance area.
The film seems to indicate that the plaintiff went to great lengths to explain what had occurred. He clearly appears to be angry, indignant and perhaps even outraged. Contrary to the plaintiff’s case, there does not appear to have been a short, calm explanation of what occurred by the plaintiff. Some minutes passed before eventually Constable Blades appears to write out the penalty notice which is subsequently handed to the plaintiff’s wife.
The film also shows the plaintiff and his wife eventually emerging at the entrance to the driveway on Harris Street and being on the footpath. The film shows the plaintiff attempting to cross the road twice, with police even slowing down a taxi. However the plaintiff comes back to the footpath, which he accepted in his oral evidence.
The film shows the plaintiff initially walking away from the entrance and then returning to the group of police and talking to them in a somewhat agitated fashion. It appears that at this time the plaintiff was arrested and taken across the road to the police van.
Why the plaintiff chose to remain at the entrance to the club after he was allegedly assaulted is, from the film, somewhat unclear. He says he remained to explain the assault to the police who he had asked to be called. The film evidence appears to be consistent with this explanation. It would have been far more sensible for the plaintiff to have left and to have reported the assault at the police station and referred to the possibility that it had been filmed.
However, the plaintiff unwisely chose to remain. Rather than there being limited conversations with the security guards prior to the police arrival and with police officers after their arrival, the film clearly establishes in my view that the plaintiff spent a considerable period of time arguing with the security guards and apparently asserting that his exclusion was inappropriate. It also shows him spending a considerable period of time with the police apparently explaining what had occurred in a highly agitated fashion. The film does not reveal the police taking extensive notes whilst the plaintiff was talking.
Importantly, the film establishes:

The plaintiff having far more extensive conversations with the security guards outside the entrance to the Albion Hotel than the plaintiff gave evidence of in his oral evidence;

The plaintiff appearing highly indignant, upset and agitated at all times;

The plaintiff attempting to re-enter the Albion Hotel to get his wife;

The plaintiff not moving away from the entrance to the Albion Hotel but slowly moving closer to the entrance while remonstrating with the security guards;

The plaintiff appearing to continue to plead his case well after a reasonable period had expired for him to have explained to the police what had occurred in the alleged assault;

The plaintiff returning from attempting to cross Harris Street on two occasions and then advancing towards the police back to the driveway of the Albion Hotel.

Exhibit 2 – The bail undertaking; Exhibit 3 – Result of appeal

Exhibit 2 relates to a bail undertaking signed by the plaintiff when he was charged with two offences in 1994. It was submitted that this was relevant to the question of assessment of damages as the plaintiff had previously had contact with the police. It was admitted as being relevant although in my view its relevance is marginal to the question of damages.
Exhibit 3 shows that in 1994 the plaintiff appealed against his convictions and sentence. One of the appeals was allowed. The conviction for receiving was confirmed.

Exhibits 17 and 20

The defendant tendered the relevant pages from Constable Blades’ police notebook relating to the plaintiff (Exhibit 17) and Constable Blades’ statement for the purposes of the Local Court hearing (Exhibit 20). These are discussed further below.

Evidence of Leading Senior Constable Bradley Neppl

Leading Senior Constable Bradley Neppl (“Constable Neppl”) had been an officer at the Parramatta Police Station from 2004 to 2014. He confirmed that he was on duty on the morning of 10 June 2012 and had attended the Albion Hotel as part of his general duties. Attending the Albion Hotel was part of what he described as “high visibility policing” so members of the public would see that the police were around and in order to deter anti-social behaviour: T 329.42-330.5.
Constable Neppl gave evidence that the Albion Hotel was very busy that night and often had in excess of 1,000 patrons attending. He gave evidence that a walk through took about 10 minutes and the police officers involved would monitor the bar activities, the behaviour of patrons, speak to management and check that the CCTV apparatus was working: T 330.39.
Constable Neppl said that the police generally let the security guards deal with difficult patrons although police were called by the security guards on occasions.
Constable Neppl gave evidence that he did not recall meeting the plaintiff on 10 June 2012. He also confirmed that he did not appear in the still photograph which was Exhibit B. He recalled undertaking a walk through at the Albion Hotel but did not recall whether this was separately or together with Constables Blades, Gedeon, Restuccia and Frith. He did not recall the time that he arrived. He also made no police notebook entry in relation to Mr Raad’s matter: T 331.22.
I accept the evidence of Constable Neppl as being truthful and accurate.

Evidence of Senior Constable Frith

Oral evidence was given in the proceedings by Senior Constable Jason Frith. In 2012 Senior Constable Frith was stationed at the Parramatta Police Station and attended the Albion Hotel in the early hours of 10 June 2012 with other police officers.
Senior Constable Frith (“Constable Frith”) gave evidence that part of his general duties tasks at the time was to attend licensed premises to deter anti-social behaviour and alcohol related crime. He said he attended as part of a high visibility police patrol: T 354.44.
He said the Albion Hotel at the time was a large venue and was very busy: T 355.5.
Constable Frith gave evidence that he made no notebook entries at the time in his police notebook in relation to the plaintiff: T 364.45. However, he did say that he gave evidence in the Local Court hearing in the charge brought against the plaintiff. He said that he had not been asked by Constable Blades to provide a statement for the purposes of the Local Court proceedings: T 364.41.
Constable Frith denied in cross-examination that his recollection of events was poor concerning the plaintiff: T 366.7. However, in answer to the proposition that his recollection of events on the driveway was “sketchy” in relation to the plaintiff, Constable Frith replied that the events occurred four years ago. I formed the impression that Constable Frith did not have a strong recollection of events on 10 June 2012.
Constable Frith gave evidence that he had arrived at the Albion Hotel with other police officers for the purposes of a walk through. He confirmed that he spoke to the plaintiff in the driveway area. He said that the plaintiff was yelling, throwing his arms around and would not leave the vicinity of the Albion Hotel: T 355.22. He confirmed that several police officers, including Constable Blades, were with him. He also confirmed his presence in the photograph which is Exhibit B.
Constable Frith said that he did not recall why the security officers at the Albion Hotel had asked the plaintiff to leave the hotel building but believed he would have understood the reason on 10 June 2012: T 356.25. He gave evidence that the plaintiff was asked to leave by him on numerous occasions but he did not leave the driveway vicinity when asked: T 357.1. He said he believed he was acting pursuant to the “licensing legislation” at the time which required someone excluded from licensed premises to be 50 metres or more from the premises: T 357.5. Constable Frith said the plaintiff had been given a direction to move on by the police and would not: T 357.30. He confirmed that the plaintiff was standing in the vicinity of the premises, was waving his arms around and was yelling loudly: T 357.38. Constable Frith could not recall what Mr Raad was saying at the time but formed the impression that he would not leave the vicinity of the premises: T 357.42. In his evidence in chief he confirmed that the plaintiff eventually walked down the driveway of the Albion Hotel to Harris Street, started to cross the road, came back and was arrested and placed in a caged police vehicle: T 358.25. He said he understood that the plaintiff was arrested for failing to leave the vicinity of licensed premises having been excluded from them. He said that he understood the arrest was because the plaintiff was continuing to commit the offence by not leaving the vicinity of the licensed premises: T 358.37.
Constable Frith did not recall what the plaintiff was saying shortly before he was arrested: T 359.43. He gave evidence that he assumed that Constable Gedeon was present at the time but he was not sure: T 359.46.
Constable Frith gave evidence that the police officer in the film walking across the road to open the back door of the police van in order to place the plaintiff in it was him: T 360.6.
Constable Frith did not recall whether he assisted the plaintiff to enter the police van: T 360.35. However, he confirmed that it was not his practice as a police officer at the time to “throw” a person in custody into a police van: T 360.39.
Constable Frith gave evidence that he did not recall the plaintiff being told the reason for his arrest but said, “It would have been done”: T 361.2. Constable Frith said he did not recall the plaintiff saying or doing something which gave rise to his arrest: T 361.32.
In cross-examination Constable Frith confirmed that it was unlikely that he had been at the Albion Hotel for an hour prior to talking to the plaintiff as that would have been unusual: T 362.2. However, he confirmed that it was “possible” that police officers had been at the premises for half an hour before speaking to the plaintiff: T 362.6. Constable Frith confirmed that whilst he was at the Albion Hotel he was observing patrons to determine if any were affected by alcohol and said that police officers were entitled to ask patrons to leave if they were intoxicated: T 362.18.
Constable Frith also confirmed that he had spoken to Constable Blades in relation to the events of 10 June 2012. He believed the last time he had spoken with Constable Blades on the matter was at the time of the Local Court hearing although he conceded that he might have since that time. He did not recall whether he had: T 363.35; T 364.3.
Constable Frith gave evidence that his recollection was that he held one arm of the plaintiff as he was walking down the driveway to Harris Street to ensure that he left the vicinity. He said he believed Constable Blades was holding the other arm of the plaintiff but he could not be sure: T 366.26-.45. He said he was holding the plaintiff’s arm as he was not leaving the vicinity and in order to get the plaintiff “on his way”: T 382.34.
Constable Frith in cross-examination said he did not recall the plaintiff complaining that he had been assaulted when the police officers were talking with the plaintiff in the vicinity of the entrance to the Albion Hotel: T 380.33. However, he confirmed that the plaintiff was agitated at the time: T 375.11. He also confirmed that when he first spoke to the plaintiff in the driveway area that he had assumed that the plaintiff had been removed by security guards from the hotel: T 375.28. Constable Frith gave evidence that he did not recall that he was the police officer that had most of the discussion with the plaintiff in the driveway area or that it was Constable Blades who had given the plaintiff the penalty notice: T 376.6.
It was put to Constable Frith in cross-examination that the plaintiff had walked down the driveway after receiving the ticket without Constables Frith and Blades holding the plaintiff’s arms. Constable Frith said he believed he was holding the plaintiff’s arm “but it was a long time ago”: T 381.9. He did not recall a taxi being stopped in Harris Street for the plaintiff, the plaintiff saying that he did not want to get into the taxi and the plaintiff yelling at police to stop following him. He also did not recall the plaintiff saying anything to Constable Gedeon which upset him and led to the plaintiff’s arrest. In answer to the proposition that the plaintiff had asked why he was under arrest, Constable Frith said that that was possible: T 381.18-.34.
Constable Frith said he did not hear any conversation between the plaintiff and the plaintiff’s wife near the back of the police wagon in which the plaintiff asked Mrs Raad whether she had enough money or any response from Constable Blades: T 381.48. Constable Frith said he did not recall whether he was holding the plaintiff as he was getting into the police wagon: T 382.7. He said he did not see any police officer push the plaintiff into the police wagon: T 382.14. He also confirmed he did not deal with the plaintiff after he had been taken to Parramatta Police Station.

The same duties and considerations apply where a police officer is deciding how to effect an arrest. And, in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J said:
"[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances."”

I also note that in State of New South Wales v McMaster [2015] NSWCA 228, Beazley P (with whom McColl and Meagher JJA agreed) stated as follows at [38]:

“[38] Thirdly, the legislature, by the enactment of s 230, has spoken as to the circumstances in which a police officer’s actions in exercising a function under LEPRA, or under any other Act or law, are lawful.”

Whether any damages should be awarded for the negligent battery and the quantum of those damages will be considered further below.

Claim for malicious prosecution

In A v New South Wales (2007) 230 CLR 500, the High Court stated as follows:

“[1] This appeal raises issues concerning two of the four elements of the tort of malicious prosecution. For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:
(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(2) that the proceedings terminated in favour of the plaintiff;
(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(4) that the defendant acted without reasonable and probable cause.”

In State of New South Wales v Abed [2014] NSWCA 419 Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) stated as follows:

“[135] To constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law — an “illegitimate or oblique” motive. That improper purpose must be the sole or dominant purpose actuating the prosecutor: A v New South Wales at [91].
[136] Examples of an improper purpose include spite or ill will, to punish the defendant, and to stop a civil action brought by the accused against the prosecutor. However as the joint judgment in A v New South Wales emphasised at [92], it is not possible to identify exhaustively when the processes of the criminal law may be improperly invoked. What the plaintiff has to prove, in order to establish malice in an action for malicious prosecution, is a purpose other than a proper purpose: A v New South Wales at [92].
…
[150] Absence of reasonable and probable cause in maintaining a prosecution may, in a given case, be evidence of malice, but as the High Court emphasised in A v New South Wales at [40] there are two separate issues to be decided. The High Court also warned (at [90]) against attempts to reduce the relationship between absence of reasonable and probable cause and malice to an aphorism such as — absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause. The joint judgment continued (at [90]) by recognising that “proof of particular facts may supply evidence of both elements”, but noted that “no universal rule relating proof of the separate elements can or should be stated”.
[151] In Trobridge v Hardy [1955] HCA 68; 94 CLR 147 Kitto J at 163 referred to the “indirect route” of proving malice. His Honour continued (at 164), in the context of a jury trial:
“If they think it more probable than not that the prosecutor lacked the belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malicious, even though they may not feel able to say precisely what the malicious motive was.”

[152] However, whilst proof of malice will often be a matter of inference, it bears repeating that “it is proof that is required, not conjecture or suspicion”: A v New South Wales at [93].”

I also take into account the matters set out in paragraphs [200]-[216] of the plaintiff’s submissions in chief.
As stated above, I find that the criminal charge of “excluded person remain in vicinity of” licensed premises was heard in the Parramatta Local Court in late 2012 and on 23 January 2013 the Magistrate dismissed the charge. Accordingly, the first two elements in A v New South Wales, above, are satisfied as there were criminal proceedings which were terminated in favour of the plaintiff.
However, having regard to my findings set out above, I find that Constable Blades as the informant, did not initiate or maintain the proceedings acting maliciously and that he acted at all times with reasonable and probable cause. The fact a statement was not obtained from a security guard for the prosecution is not decisive. Constable Blades gave evidence, which I accept on this issue, that he had been told by security officers the plaintiff had been excluded from the hotel because of intoxication. Constable Blades had formed the view independently that the plaintiff was “moderately intoxicated” through his appearance and manner. In addition, the film footage (Exhibit 1) shows that security officers were refusing entry to the plaintiff and they were clearly “authorised persons” within Section 77 of the Liquor Act. The plaintiff did not dispute he had been asked to leave by a security officer, albeit he says wrongly.
In my view in the light of all the evidence Constable Blades brought the prosecution with reasonable and probable cause. The decision to prosecute to court was taken after a review of the film footage by him (Exhibit 1) and was not undertaken with malice. I conclude that the plaintiff has not established malice to the Briginshaw standard.
Therefore, in my opinion, the tort of malicious prosecution is not established.

Conclusion

Accordingly, in my view the claim of the plaintiff against the defendant for assault should be dismissed. The claim for false imprisonment is established. The claim for negligent battery in relation to the placement of the plaintiff into the back of the police vehicle requires further consideration.

Assessment of damages

I will now turn to consider an assessment of damages in relation to the negligent battery and the false imprisonment which have been established. I will also consider an assessment if I am wrong in my conclusions above in relation to the tort of malicious prosecution. The plaintiff claims general, aggravated and exemplary damages. Aggravated and exemplary damages are not available in relation to the negligent battery because of Section 21 of the CLA.
A party is obliged to give particulars of the facts and circumstances relied upon to establish a claim for exemplary or aggravated damages: Uniform Civil Procedure Rules 2005 (NSW), Part 15.7 and Part 15.8.
The particulars of aggravated and exemplary damages for the tort of malicious prosecution are set out in paragraph 27 of the Statement of Claim as follows:

“27.  The plaintiff also claims aggravated and exemplary damages for malicious prosecution. In so claiming, the plaintiff relies on the matters pleaded above and the following additional matters:
Particulars of aggravated damages
i)  The plaintiff was distressed, humiliated and embarrassed at having to attend the Local Court to defend the said charge; and
ii)  Further particulars may be provided in due course.

Particulars of exemplary damages
i)  The plaintiff repeats paragraphs 24(i) to (viii) herein.
ii)  Officer Blades failed to properly investigate the plaintiff’s complaint that he had been assaulted by Ali;
iii)  Officer Blades locked the plaintiff and his wife out of the Parramatta Police Station upon the plaintiff being released from police custody, in order to prevent the plaintiff from complaining about how he had been treated by Officer Blades and other police officers;
iv)  Further particulars may be provided in due course.”

The particulars of aggravated and exemplary damages for false imprisonment, assault and battery are set out in paragraph 30 of the Statement of Claim and are as follows:

“30. The plaintiff also claims aggravated and exemplary damages for the false imprisonment and assault and battery. In so claiming, the plaintiff relies on the matters pleaded herein and the following additional matters:
Particulars of aggravated damages
i)  The treatment of the plaintiff at the hands of the said officers was in full view of members of the public causing the plaintiff to be embarrassed and humiliated;
ii)  The arrest of the plaintiff was wholly unwarranted; and
iii)  Further particulars may be provided in due course.

Particulars of exemplary damages
i)  In arresting the plaintiff, Constable Blades and the other officers acted in
contumelious disregard of the plaintiffs rights;
ii)  In arresting the plaintiff, Constable Blades and the other officers knew that they were not acting in the execution of their duty as police officers;
iii)  Further particulars may be provided in due course.”

In State of New South Wales v Abed [2014] NSWCA 419, Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) stated the following at paragraphs [230]-[234]:

[230] The principles upon which aggravated and exemplary damages are awarded are well established and were not in issue on the appeal. The principles were summarised by Sackville AJA (Macfarlan and Whealy JJA agreeing) in New South Wales v Zreika [2012] NSWCA 37 at [60]–[64]. It is necessary to keep in mind the conceptual distinction between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages. The assessment of aggravated damages is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant.
[231] Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like: Lambv Cotogno [1987] HCA 47 ; 164 CLR 1 at 8. Aggravated damages are given to compensate the plaintiff when the harm done to him or her by a wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax [1966] HCA 40 ; 117 CLR 118 at [ ] (Windeyer J).
[232] Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future, and to reflect “detestation” for the action: Lamb v Cotogno at 8. Generally speaking, what is required for an award is “conscious wrongdoing in contumelious disregard of another’s rights”: Gray v Motor Accidents Commission [1998] HC 70 ; 196 CLR 1 at [14] (Gray v MAC).
[233] In New South v Riley [2003] NSWCA 208 ; 57 NSWLR 496 Hodgson JA (Sheller JA and Nicholas J agreeing) expressed the view (at [138]) that the description in Gray v MAC does not fully cover the field. His Honour said that “Conduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing”. However, Hodgson JA also observed that, ordinarily, conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the Court’s disapproval or, in cases where the defendant stood to gain more than the plaintiff lost, demonstrate that the wrongful conduct should not be to the advantage of the wrongdoer.
[234] In New South Wales v Radford [2010] NSWCA 276 ; 79 NSWLR 327, Sackville AJA (Beazley and Macfarlan JJA agreeing) summarised the effect of the authorities as follows:
[97] These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages or injury to the plaintiff’s feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award.”

General and aggravated damages

Negligent Battery

In relation to the assessment of damages for the negligent battery, the plaintiff submits that he has a severity of non-economic loss (as a proportion of a most extreme case) under Section 16 of the CLA of 25%: [226] of his written submissions in chief; cf [278] of the defendant’s written submissions.
In my view, the plaintiff’s current condition, as stated above, is not established to be connected to the negligent battery and there can be no award of damages for non-economic loss under the CLA.
No evidence was placed before the court in relation to out of pocket expenses for the past and therefore no award can be made under this head although there is some evidence that the plaintiff consulted his general practitioner at least in 2014 in relation to his knees and a specialist in 2015.
As set out above I have preferred the evidence of Dr Drummond over that of Dr Lee. Accordingly, there can be no award of damages for future economic loss including on a buffer basis as sought by the plaintiff. The evidence from the plaintiff did not link any problems with the plaintiff’s knees caused by the negligent battery to the closure of his business in 2013 or the loss of past earnings or profits and therefore no damages can be awarded under this heading. Also there was no evidence as to the plaintiff’s prior earnings as assistance to determine any loss of earning capacity.
In relation to a claim for future out of pocket expenses, the evidence of Dr Drummond should be preferred to that of Dr Lee for the reasons set out above. Accordingly, no amount should be allowed under this heading as contemplated future treatment does not relate to the incident on 10 June 2012 but to the plaintiff’s degenerative pathology: see the answers of Dr Drummond to the questions numbered 8 and 9 on pages 8 and 9 of Exhibit 6. I also reject any claim for an amount to be awarded for gratuitous care or commercial employment of domestic care or gardening for the same reasons. There is simply not sufficient evidence from the plaintiff or his wife to establish these heads of damages. Much more detailed evidence from the plaintiff and/or his wife would have been required to establish these heads of damage. Further, more detailed evidence would have been required from the plaintiff linking his complaints in relation to his knees with earlier consultations with medical practitioners.
Accordingly, I award no damages to the plaintiff in relation to the negligently inflicted battery.
False Imprisonment
It is necessary that I now consider an assessment of damages for the false imprisonment found.
The evidence is clear and undisputed that the plaintiff was arrested, handcuffed and placed in the back of the police vehicle and kept for a period of less than two hours at Parramatta Police Station. The issue of the alleged damage to the plaintiff’s knees has already been considered above in relation to the negligent infliction of injury through a battery.
In relation to the question of general damages for the false imprisonment, I take into account the following matters:

The plaintiff was arrested unlawfully;

The plaintiff was arrested with the assistance of a number of police officers, not merely one or two police officers;

I have found above that the plaintiff did not resist arrest in any way;

The plaintiff was placed in the back of a police van;

The plaintiff was kept in custody for a period of slightly less than two hours;

I do not consider it relevant that the plaintiff’s arrest was unlawful because of a “technicality”. The freedom of a member of the public is important and arrests must take place for valid and lawful reasons.

Taking into account all of these matters and the entirety of the evidence, I award the sum of $15,000 in general damages to the plaintiff for the false imprisonment.
In arriving at this figure the following appear to be also relevant:

On the evidence before me the plaintiff was continuing the offence under Section 77(8)(a) of the Liquor Act at the time of his arrest;

The arrest was undertaken to prevent the continuation of that offence, albeit unlawfully for the reasons given above;

There is no evidence that the plaintiff was struck in any way by any officer;

The plaintiff had been remaining in the vicinity of the licensed premises for some time and the police had appeared to be acting reasonably in allowing him time to get on his way.

In relation to the award of aggravated damages which are sought by the plaintiff, I take into account the following matters:

The plaintiff did not resist arrest;

The plaintiff was arrested in a public place albeit in the early hours of the morning;

The plaintiff was pushed by Constable Blades into the van;

The plaintiff was handcuffed to his rear in public;

The plaintiff was arrested in the presence of his wife.

Counsel for the defendant emphasised in his oral submissions that there was no evidence that a police car was available as opposed to a police van, in the circumstances the use of handcuffs in an arrest if lawful would have been appropriate and there was no evidence that the plaintiff was humiliated or ridiculed or insulted in any way. There were, it is submitted, no factors of aggravation. Reliance was placed on the comments of Lord Diplock in Cassell & Co Ltd v Broome (1972) AC 1027 at 1124.
In my view, an award of aggravated damages is warranted in the present case but that it should be modest. I have set out the aggravating factors above. I particularly take into account that the arrest was made in public, in front of the plaintiff’s wife, for an offence which did not involve a potential term of imprisonment and with the plaintiff being pushed into a police van. I allow $5,000 for aggravated damages.
I now turn to consider damages for the tort of malicious prosecution if I am found on appeal to be in error in concluding that this tort has not been established.
In relation to the tort of malicious prosecution, any award of damages to the plaintiff would need to be assessed to take account the following if the plaintiff’s version is preferred:

That the prosecution was continued against the plaintiff maliciously and without reasonable or probable cause;

The charge led to criminal proceedings against the plaintiff heard over two days;

The plaintiff was subjected to the upsetting and challenging experience of representing himself.

In my view the amount of general and aggravated damages which should be awarded for the tort of malicious prosecution is one of impression in all the circumstances of the case. In my view, an award of $25,000 on the facts of this alternative case would be appropriate.
In relation to the tort of false imprisonment, I do not believe that an award of exemplary damages is appropriate. The police officers involved believed reasonably that the plaintiff was committing a further offence and would remain in the vicinity of the licensed premises pleading his case if they did not act. In my view there was no high-handed, outrageous and contumelious conduct by Constable Blades or any of the police officers which warrants an award of exemplary damages. I expressly find that there was no intention to arrest the plaintiff irrespective of the facts or simply because he had irritated the police officers in question.

If I am wrong in relation to this conclusion I would only award $10,000 in addition for exemplary damages.
If the plaintiff’s entire case is accepted and preferred to that of the defendant then the plaintiff was arrested without cause, Constable Blades recorded false details in his police notebook and the COPS computer system entry in relation to the plaintiff, and a charge was continued which was known to be unjustified for a dominant malicious motive. That is obviously serious conduct on behalf of police officers. It seems that the conduct was primarily that of Constable Blades.
If the plaintiff’s case is entirely preferred then the conduct of Constable Blades clearly amounted to high-handed, outrageous and contumelious conduct by him. The evidence does not support this allegation. In the circumstances, in my view, an award of exemplary damages for malicious prosecution would be warranted and I would award the sum of $10,000.
In conclusion, I find that the plaintiff should be awarded $20,000 damages for the tort of false imprisonment. Interest will need to be calculated and added to this figure.

Disposition

For the above reasons, I make the following orders in the proceedings:

There is to be judgment for the plaintiff;

Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed judgment sum including interest;

The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed;

Liberty to the parties to apply to vary the costs order in (3) above;

The exhibits may be returned after 28 days.

**********

Decision last updated: 24 March 2017

Medium Neutral Citation:	Raad v State of New South Wales [2017] NSWDC 63
Hearing dates:	17-21 October 2016, 6-7 December 2016, 23 February 2017
Date of orders:	23 March 2017
Decision date:	23 March 2017
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) There is to be judgment for the plaintiff; (2) Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed judgment sum including interest; (3) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed; (4) Liberty to the parties to apply to vary the costs order in (3) above; (5) The exhibits may be returned after 28 days.
Catchwords:	Torts – assault – battery – false arrest – false imprisonment – malicious prosecution – lawfulness of police actions – whether arrest lawful
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW) Liquor Act 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	A v New South Wales (2007) 230 CLR 500 Bale v Mills [2011] NSWCA 226 Browne v Dunn (1893) 6 R 67 Cassell & Co Ltd v Broome (1972) AC 1027 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Croucher v Cachia [2016] NSWCA 132 Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 Danckert v Tonkin [2015] NSWSC 1570 Dowse v State of New South Wales [2012] NSWCA 337 Elleray v Rail Corporation NSW [2017] NSWCA 23 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Jones v Dunkel (1959) 101 CLR 298 R v Gabriel [2004] ACTSC 30 R v Phillips (1971) 45 ALJR 467 Ruddock v Taylor (2005) 222 CLR 612 Sangha v Baxter [2009] NSWCA 78 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Koumdjiev [2005] NSWCA 247 State of New South Wales v McMaster [2015] NSWCA 228 State of New South Wales v Robinson [2016] NSWCA 334 State of New South Wales v TD [2013] NSWCA 32 Varty v Director of Public Prosecutions (NSW) [2015] NSWSC 304 Woodley v Boyd [2001] NSWCA 35 Zaravinos v State of New South Wales (2004) 62 NSWLR 58
Category:	Principal judgment
Parties:	Johnny Raad (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: A Canceri (Plaintiff) M Hutchings (Defendant) Solicitors: O'Brien Solicitors (Plaintiff) Henry Davis York (Defendant)
File Number(s):	2015/00119450