Reilly v State of New South Wales - [2016] NSWDC 234

District Court

New South Wales

Medium Neutral Citation: Reilly v State of New South Wales [2016] NSWDC 234
Hearing dates: 1 August 2016 – 5 August 2016, 31 August 2016
Date of orders: 27 September 2016
Decision date: 27 September 2016
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) There be judgment for the defendant.
(2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.
(3) The exhibits may be returned after 28 days.

Catchwords: Torts – assault – false arrest – false imprisonment – malicious prosecution – lawfulness of police actions
Legislation Cited: Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Police Act 1990 (NSW)
Road Transport Act 2013 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: A v New South Wales (2007) 230 CLR 500
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1
Danckert v Tonkin [2015] NSWSC 1570
Makri v State of New South Wales [2015] NSWDC 131
Ruddock v Taylor (2005) 222 CLR 612
State of New South Wales v Abed [2014] NSWCA 419
State of New South Wales v Koumdjiev (2005) 63 NSWLR 353
State of New South Wales v McMaster [2015] NSWCA 228
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
Young v State of New South Wales (No 2) [2013] NSWSC 330
Category: Principal judgment
Parties: Janine Frances Reilly (Plaintiff)
State of New South Wales (Defendant)
Representation:
Counsel:
A Coombes (Plaintiff)
N Newton (Defendant)
Solicitors:
Coode & Corry Solicitors (Plaintiff)
McCabes Lawyers (Defendant)

File Number(s): 2015/00199618

Judgment

The plaintiff claims damages in relation to the conduct of police officers for whom the defendant is liable which allegedly occurred in the early morning hours of 24 November 2013.
By Statement of Claim filed 8 July 2015, the plaintiff brings proceedings against the defendant for damages for assault (paragraphs 26-27), wrongful arrest (paragraphs 28-29), false imprisonment (paragraphs 30-32), malicious prosecution (paragraphs 33-35) and misfeasance in public office (paragraphs 36-38). At the commencement of the hearing of the matter, counsel for the plaintiff indicated that the plaintiff was not pressing the claim for misfeasance in public office.
In answer to the Statement of Claim, the defendant in its Defence filed 5 November 2015, pleads in summary as follows:

It admits that the police officers concerned were in the service of the Crown;

It admits that it would be vicariously liable for the torts allegedly committed by the police officers in the event that the plaintiff succeeds in proving that the officers committed the torts alleged;

It denies the torts alleged by the plaintiff;

It says the plaintiff was lawfully placed under arrest for returning a positive result to a roadside breath test;

It says that the force used by the police officers in question was reasonably necessary in the circumstances and therefore lawful pursuant to Sections 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) and Schedule 3, Part 2, Section 4(2)(b) of the Road Transport Act 2013 (NSW);

It says that the plaintiff’s detention after being arrested was lawful pursuant to Schedule 3, Part 2, Sections 4(1)(c) and 4(2) of the Road Transport Act 2013 (NSW); and

It claims that at all material times the police officers in question were acting in accordance with Section 6 of the Police Act 1990 (NSW).

The plaintiff in her Statement of Claim claims damages, including aggravated and/or special damages and exemplary damages. It is not in dispute that the plaintiff suffered a fractured left wrist. It does not appear to be seriously in dispute that the fracture to the wrist occurred following her arrest. The plaintiff claims that the wrist was fractured by Senior Constable Ruben Melide applying excessive pressure on the plaintiff’s wrist in the course of the application of a wrist lock following her arrest. The defendant claims that the wrist fractured either while the plaintiff was resisting arrest whilst standing or in the course of the plaintiff, Senior Constable Melide and Constable Kylie Shearer falling to the ground whilst the plaintiff was resisting arrest.

The circumstances relating to the plaintiff’s arrest: the factual issues between the parties

At about 1.30am on 24 November 2013, Senior Constable Melide and Constable Shearer were undertaking random breath testing duties near the intersection of Werrington Road and Rance Road in Werrington in Sydney.
At that time the plaintiff and her then de facto, Mr Stephen Winchester, were travelling in a southerly direction on Werrington Road in Mr Winchester’s utility. The plaintiff and Mr Winchester had been at the Kurrajong Heights Bowling Club where Mr Winchester had played in a band. The evidence showed that Mr Winchester had numerous alcoholic drinks at the club and the decision was taken that the plaintiff would drive Mr Winchester’s motor vehicle back to their home which was in Rance Road near the place where Senior Constable Melide and Constable Shearer were undertaking the random breath testing. The plaintiff claims that she had only consumed four alcoholic drinks in the course of the evening at the Club.
The plaintiff was directed to pull in to the side of the road by one of the police officers. The events which followed are heavily disputed between the parties.
The defendant claims that the plaintiff recorded a positive result with an alcohol breathalyser device and was arrested and conveyed to St Marys Police Station. It is also alleged that the plaintiff resisted arrest and assaulted Senior Constable Melide.
The plaintiff asserts that she did not resist arrest or assault Senior Constable Melide and that her wrist was fractured through excessive force being applied without cause by Senior Constable Melide using a wrist lock.
It is not disputed that the plaintiff was conveyed in a caged police motor vehicle to St Marys Police Station. It is also not in dispute that a further breath analysis was undertaken at St Marys Police Station and that the instrument recorded a concentration of alcohol in the breath of the plaintiff at 0.064 grams of alcohol in 210 litres of breath.
The plaintiff was released from St Marys Police Station to an ambulance and was conveyed to Nepean Hospital where a fracture of her left wrist was diagnosed.
In due course, the plaintiff was charged by police with the following offences:

Driving with a low range PCA contrary to Section 110(3)(A) of the Road Transport Act 2013;

Resisting a police officer in the execution of his or her duty contrary to Section 58 of the Crimes Act 1900 (NSW); and

Assaulting a police officer in the execution of his or her duty contrary to Section 58 of the Crimes Act 1900 (NSW).

After a hearing extending over several days it is not in dispute that the Magistrate in the Local Court found the PCA offence established but dismissed the other two charges of resisting police and assaulting a police officer.

Preliminary comments

There are starkly differing accounts between witnesses for the plaintiff and the defendant as to what occurred prior to and after the plaintiff’s arrest in the early hours of 24 November 2013. It is necessary for the Court to determine what occurred and which account it prefers. In doing so, 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) 103 FCR 1 at [118]-[123]; Danckert v Tonkin [2015] NSWSC 1570 at [152].
In determining these important questions the Court will take into account a number of matters including the following:

These events occurred over two and a half years ago and there are likely to be deficiencies to some degree in witnesses’ recollections;

Police officers appear in courts to give evidence fairly frequently and therefore have some advantage in that regard;

Both the plaintiff and, it seems to a greater degree, Mr Winchester, had consumed alcohol on the evening in question. On the plaintiff’s evidence she had consumed two glasses of beer and two glasses of Baileys. On Mr Winchester’s evidence he had consumed about 10 standard drinks;

Weight should be given to contemporaneous records unless it is accepted that they have been manipulated or doctored in some way or are erroneous or questionable. As the majority of the High Court stated in Fox v Percy (2003) 214 CLR 118 at [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 [of witnesses]. 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.”

The facts of the matter have already been reviewed in the Local Court and the witnesses have been cross-examined in relation to them previously;

The plaintiff has alleged that the police versions of the plaintiff resisting arrest and assaulting police have been concocted.

I will consider the oral evidence of each of the witnesses who gave evidence.

The plaintiff’s oral evidence

The plaintiff was born in April 1968. Accordingly, she was 45 years old at the time of the events in issue. She is a public servant by occupation.
The plaintiff’s oral evidence in chief was that she decided to drive Mr Winchester’s utility home from the Kurrajong Heights Bowling Club because he had consumed a large amount of alcohol and “there was no way he could drive”. The plaintiff gave evidence that a female police officer who she later identified as Constable Shearer had waved her car over to the side of the road and that the plaintiff had initially parked behind the police car as she had thought she had been directed to that location and then moved the utility to the front of the police car when directed. The plaintiff stated that she complied with police directions at all times, never swore at the police officers (T 36.50), never resisted arrest, and never assaulted anyone.
The plaintiff said that Constable Shearer asked her why she did not pull in front of the police car first to which she responded that she did not know to. The plaintiff said that Constable Shearer responded, “Well you should”, and was quite aggressive (T 10.21). She indicated that Constable Shearer asked where she had been and that she was going to undergo a breath test. The plaintiff said that she told Constable Shearer that the last time she had tried to undergo a breath test she had been unable to blow. She was then required to blow into a tube attached to a breath test device. The plaintiff gave evidence in chief that Constable Shearer told her that she had failed to give a sample and that if she failed to do so again that she would be placed under arrest. The plaintiff claims that she responded by saying “who’d do this for a job” (T 11.1).
At about that time a male police officer who the plaintiff identified as Senior Constable Melide appeared at the window of her car when she was told that she may be arrested if she did not supply a test. The plaintiff noted that Senior Constable Melide had handcuffs in his hand. The plaintiff said that Senior Constable Melide said to her that she should “stop her bloody swearing” (T 11.23). She replied that he was the only one who had sworn so far.
The plaintiff then followed the same procedure of blowing into a tube attached to the breath test device. She then gave evidence that she was told she was under arrest as the second test was unsuccessful. This was told to her by Constable Shearer.
The plaintiff then went to get her handbag to get her wallet and her licence out and was told to drop it and that she would not need anything.
The plaintiff was told to put her hands on the window sill which she complied with and she was then placed in handcuffs. She could not recall which officer placed the handcuffs on her.
The plaintiff believes that she unbuckled her own seatbelt just prior to the handcuffs being applied and then the police officers assisted her out of the motor vehicle and led her towards the police car. The plaintiff said that at that stage Constable Shearer indicated that they should wait a moment and then Constable Shearer walked back in the direction of the utility. Whilst the plaintiff was there being held by Senior Constable Melide he started to apply pressure to her left wrist by it being forced back in a wrist lock with pressure being placed on the palm of her left hand downwards (T 14.15). Senior Constable Melide asked her “ will you comply” and she claimed she replied that she would do anything and that the pressure was hurting her.
The plaintiff then said that she called out to Mr Winchester to help and that Mr Winchester arrived and tried to put his hand in between Senior Constable Melide and herself to alleviate the pressure on the wrist lock (T 15.16). Mr Winchester was then told to get on his knees or he would be arrested too and he immediately complied by falling to his knees.
At this stage the plaintiff gave evidence that she heard a crack or a pop to her wrist and cried out “help” at the top of her voice. She felt her knees go and after that she was pushed to the ground face down and placed in a leg lock which was described as her right leg being lifted up behind her left buttock by Senior Constable Melide. At this time the plaintiff was still handcuffed. She said that she was crying and was in terrible pain (T 15.40).
The plaintiff was then taken to St Marys Police Station. The plaintiff claims that she told the officers at the counter at the station that she had failed to provide a breath test at the road side and had subsequently been injured and she thought her arm was broken (T 17.2).
The plaintiff said she underwent a further breath test at the police station with Senior Constable Kennedy which was positive with a low-range PCA.
She was then taken to a corridor at the police station to speak to an ambulance officer and was conveyed to Nepean Hospital for attention. The plaintiff said that she told a nurse what had occurred to her whilst at Nepean Hospital and she was subsequently discharged at about 11.30am. For at least part of the time, according to the plaintiff, Mr Winchester was present with the plaintiff at the hospital.
The plaintiff denied at any stage resisting arrest or kicking Senior Constable Melide. The plaintiff gave evidence that she had difficulty blowing because of dental issues and a problem with her jaw. She gave evidence that she actually went to see a doctor in relation to her jaw on 23 November 2013.
The plaintiff also gave evidence of substantial legal fees being incurred by her in retaining solicitors and a barrister in representing her at the hearing in the Local Court (Exhibits E and F).
The plaintiff was then subjected to extensive cross-examination. In the course of her cross-examination, the plaintiff gave a substantially expanded account of the conversations which had occurred between her and Senior Constable Melide and Constable Shearer prior to her being conveyed to St Marys Police Station. However, the plaintiff was consistent in her evidence that she had not resisted arrest, had not kicked Senior Constable Melide and had not attempted to bite him while she was in custody after having been arrested.
The following matters were noted about the plaintiff’s cross-examination:

In cross-examination the plaintiff gave evidence that she informed Constable Shearer that she lived in Rance Road by saying “I only live there”. This was not stated in her evidence in chief (T 10.21-26 cf 31.19);

The plaintiff agreed in cross-examination that she had difficulty hearing Constable Shearer because she spoke very fast and very poorly and said “What?” to Constable Shearer after she had spoken to her (T 10.21-26 cf 32.42);

The plaintiff agreed in cross-examination that Senior Constable Shearer asked her to turn down the music playing in the car. This was not in the plaintiff’s evidence in chief (see T 33.1);

The plaintiff gave evidence that there was a discussion between her and Constable Shearer in relation to whether she had consumed any alcohol that night particularly in the last 15 minutes. The plaintiff gave evidence that she thought Constable Shearer asked her when was her last drink (T 33.3-11);

The plaintiff conceded in cross-examination that she was then asked again by Constable Shearer “How much have you had to drink?”. This also was not in the plaintiff’s evidence in chief (T 33.40);

The plaintiff claimed in cross-examination that she told Constable Shearer that she had had two schooners of beer and two Baileys (T 34.1);

The plaintiff gave evidence in cross-examination that Constable Shearer said to her “Turn the music down and lose the attitude. There’s no need for it”. That evidence was not in the plaintiff’s evidence in chief (T 34.25);

The plaintiff gave evidence in cross-examination that she said to Constable Shearer “I don’t understand you, you don’t enunciate your words properly”. This was not in the plaintiff’s evidence in chief (T 34.42);

The plaintiff gave evidence in cross-examination that Constable Shearer told her that she was Constable Shearer from St Marys Police. That was not given by the plaintiff in her evidence in chief (T 35.7);

The plaintiff initially claimed in cross-examination that she said to Constable Shearer “Well, just effing arrest me then”. She then changed her evidence to state that she did not believe she swore the entire evening. In the end the plaintiff said this: “I did not say “effing”. And I cannot be 100 per cent sure I didn’t, I did say that. I’d prefer you didn’t say that.” (see T 36.43-37.37);

The plaintiff conceded in cross-examination that Senior Constable Melide had identified himself to her and that he had said words to the effect: “You are not blowing through the tube, I can see that you are not and the alcolyzer is not indicating a noise that you are”. This was not given by the plaintiff in her evidence in chief (T 38.8-16);

The plaintiff conceded that she had given inconsistent evidence before the Local Court because there she had agreed that she was told that she was being arrested for failing to give a breath sample whereas her evidence in this court was that no reason for her arrest was given (T 39.1-9 cf T 41-42.10; Exhibit H, page 4.43);

The plaintiff indicated in her evidence that the wrist lock applied by Senior Constable Melide had her left palm facing upwards initially but later changed her evidence to say that the palm was facing downwards with Senior Constable Melide placing his hands on the top of the plaintiff’s left hand and pushing downwards. This was a fairly significant change in evidence by the plaintiff in relation to how the wrist lock was applied to her by Senior Constable Melide (T 14.1-15 cf T 44.34-45.6, T 46.30-50.11);

The plaintiff initially gave evidence that she believed that she may have said “I think you’ve broken my arm” to Senior Constable Melide and Constable Shearer and later admitted she could not recall saying that (T 53.38-49);

The plaintiff initially said that she had informed officers at St Marys Police Station that she felt her “arm” was broken, but then changed that evidence to say that she felt “her wrist was broken” (T 56.10, T 56.18, T 58.27-28 cf T 59.33);

The plaintiff also gave evidence that Mr Winchester was present at Nepean Hospital when she told people at the hospital her version of events. She identified that she told this to a nurse and that Mr Winchester was physically present (T 62.36-63.33, T 69.39-70.4);

The plaintiff denied in cross-examination that she undertook a third breath test which was positive at the roadside (T 38.22-48). This should be contrasted with the photographic evidence at pages 4-8 of Exhibit 2 which establishes that there were three attempted breath tests with the third being positive.

I observed the plaintiff very carefully whilst she gave her oral evidence. Her evidence in chief of the events in question was fairly sparse. In cross-examination she expanded her version of events considerably. She also altered her evidence on a number of points (for example, whether she swore at all and the nature of the wrist lock) in cross-examination. The plaintiff struck me as attempting to downplay a likely challenging attitude which was shown to the police by her on the morning in question. Overall, I had some reservations in accepting her evidence and believed it should be approached with a degree of caution.

Evidence of Stephen Winchester

Oral evidence was given by the plaintiff’s former de facto partner Mr Stephen Winchester. Mr Winchester is a gym instructor and personal trainer and was 41 years of age at the time of the incident.
Mr Winchester struck me overall as a more impressive witness than the plaintiff. He gave his evidence directly and generally without unnecessary elaboration. Mr Winchester gave evidence that he had background training in martial arts and was familiar with a wrist lock technique.
In general terms, his oral evidence was consistent with the oral evidence of the plaintiff. In relation to the reliability of his evidence, regard should be had, in my view, to the following matters:

He admitted that he had consumed about 10 standard drinks during the course of the evening at the Kurrajong Heights Bowling Club. This must affect, to some degree at least, his recollection of the detail of events;

He was not always present during all of the events in question, particularly after the plaintiff had exited the utility in handcuffs for a period of 20 to 30 seconds. He also was not present during the events involving the plaintiff at St Marys Police Station.

Whilst recording that in general terms the oral evidence of Mr Winchester was consistent with that of the plaintiff, the following matters should be noted about his evidence:

Mr Winchester gave evidence that to the best of his recollection it was Senior Constable Melide who told the plaintiff that she was under arrest. However, the plaintiff (T 11.40), Constable Shearer and Senior Constable Melide all gave evidence that it was Constable Shearer who told the plaintiff she was under arrest;

Mr Winchester gave evidence that it was Senior Constable Melide who removed the plaintiff’s seatbelt. However, the plaintiff gave evidence that she believed it was her who removed her seatbelt (T 12.34). His evidence was confirmed by Mr Winchester under considerable cross-examination (T 111-113). Mr Winchester also confirmed that in the Local Court proceedings he had given evidence that the plaintiff had removed her seatbelt to get out of the car (T 112.22) and said he was mistaken in that evidence (see Exhibit J, page 25.19);

Mr Winchester conceded that he had been in error in the evidence he had given in the Local Court proceedings when he stated that the first thing that was said when a police officer approached the window of his car was “you have been pulled over for a random breath test”. In his evidence in this Court he said the first thing said was “Why did you pull in behind the police vehicle?”. He denied that he had changed his evidence to better assist the plaintiff’s case (T 103.4-44; Exhibit J page 20.1);

Mr Winchester gave evidence that when the police officer approached the window and began talking to the plaintiff that he himself turned the music down. He also disagreed that the police officer asked the plaintiff to turn the music down. He denied that it was Ms Reilly who turned the music down (T 104.12-40; T 107.7). The plaintiff gave evidence that she turned the music down (T 34.37);

Mr Winchester appeared to initially accept that the plaintiff had said to the police officer after a failed attempt at a breath test “Well, just arrest me then” but then soon after said he did not remember the plaintiff saying those words (T 109.29-37);

Mr Winchester gave evidence that he accepted that he was mistaken in the Local Court when he gave evidence that Senior Constable Melide was holding the plaintiff’s right arm and Constable Shearer was holding the plaintiff’s left arm after the plaintiff had left the vehicle. He said he was “confused” (T 120.17) and in these proceedings gave evidence consistently with the plaintiff and the police witnesses;

Mr Winchester gave evidence that he was not physically present at Nepean Hospital when the plaintiff gave her version of what had happened to staff. He said he was not physically present to overhear the plaintiff telling hospital staff what had occurred to her. That evidence is both inconsistent with the plaintiff’s evidence (T 62.38-63.7) and Exhibit G which is the hospital discharge summary relating to the plaintiff for 24 November 2013 which states that the partner of the plaintiff was “present on examination” and makes reference to matters allegedly stated by the partner.

Whilst Mr Winchester appeared a more direct witness in giving his evidence in chief and in cross-examination than the plaintiff, the inconsistencies referred to above require, in my view, that caution be exercised in assessing the evidence of Mr Winchester. I also take into account Mr Winchester’s own evidence that he had had 10 standard drinks in the few hours prior to the events in question. This may well have affected his recollections to some degree.

The Nepean Hospital Discharge Summary

Reliance is placed by the plaintiff on the consistency between her evidence and the detail in the Nepean Hospital Discharge Summary. Some weight should be given to the Discharge Summary because it relied on information which was provided by the plaintiff to the hospital on her presentation early in the morning on 24 November 2013. The history is generally consistent with the plaintiff’s evidence. However, as indicated above, it appears to have been provided in the presence of Mr Winchester thus making him aware of the plaintiff’s version of events. Secondly, the Discharge Summary refers to the following statement: “Police then threw patient to the ground onto right side”. No evidence emerged from the plaintiff or Mr Winchester that the plaintiff was thrown to the ground on the right side as opposed to face first into the ground (see T 15.36 for example). Some regard should however be had to the fact that the oral evidence was given two and a half years after the events in question and the time the information was provided in the Discharge Summary.

Transcripts of the Local Court

The plaintiff tendered the transcript of the evidence of Mr Winchester, Senior Constable Melide and herself in the Local Court.

Evidence on behalf of the defendant

The relevant evidence relied upon on behalf of the defendant consisted of oral evidence from the police officers involved, a folder of documents, some of which were created soon after the arrest of the plaintiff and some of which were created some time later and the transcript of evidence of Constable Shearer in the Local Court.

Evidence of Constable Kylie Shearer

Constable Shearer was a police officer of some 18 months experience at the time of the events in question in November 2013. She was the police officer with Senior Constable Melide who undertook the breath testing of the plaintiff at Werrington Road.
Constable Shearer appeared to the Court to be a fairly impressive witness. She conceded matters where appropriate and readily agreed that some matters she did not recall. The plaintiff’s primary case was that Constable Shearer and Senior Constable Melide had manufactured their versions of the events of 24 November 2013 at or about that time, possibly in response to becoming aware that the plaintiff had been injured. However, it is noted that Constable Shearer did not assert that she saw or heard the plaintiff kick Senior Constable Melide as is claimed by him to have occurred.
Constable Shearer also gave evidence that she was the officer who administered the breath testing to the plaintiff at the roadside on 24 November 2013. This gains support from the Breath Testing Record Sheet which was in evidence (Exhibit 2, page 3).
Constable Shearer gave evidence that an alcolyzer breath testing device was used in relation to the plaintiff in the following manner on 24 November 2013 at the roadside:

First, a passive breath test was undertaken in relation to the plaintiff to determine whether she had any alcohol on her breath. Constable Shearer said that the device issued an indication that there was alcohol on the plaintiff’s breath;

Secondly, Constable Shearer indicated that the device timed out after the passive breath test because an active breath test was not administered in their required time. This necessitated the alcolyzer device being reset;

Thirdly, Constable Shearer indicated that the plaintiff placed her lips over a plastic tube which was attached to the alcolyzer but the alcolyzer showed that an insufficient sample was given by the plaintiff;

Next, Constable Shearer gave evidence that the plaintiff attempted again to give a sample for the breathalyser which was unsuccessful;

Constable Shearer then gave evidence that the plaintiff provided a successful breath sample which showed that the plaintiff recorded a level of .082 which showed a low range PCA offence and the plaintiff was then arrested by her.

This evidence of Constable Shearer is supported by the alcolyzer number in the St Mary’s equipment register (Exhibit 2, page 2 for alcolyzer number 10892) and the photographs which she took of the screenshots of the history of alcolyzer 10892 recorded on it when she and Senior Constable Melide located the alcolyzer after the Local Court hearing in 2014 (see Exhibit 2, pages 4-8). The recordings on alcolyzer 10892 as photographed by Constable Shearer are fundamentally at odds with the accounts of what occurred on 24 November 2013 in relation to the breath testing at the roadside given by the plaintiff and Mr Winchester. There was an initial attempt by counsel for the plaintiff to suggest that Constable Shearer and Senior Constable Melide had searched through other alcolyzer devices until they found one that fitted their story (T 228.11-17). This is inconsistent with the equipment register number (Exhibit 2, page 2). In addition, the chances of finding a machine which accorded with the time and date in question would be very limited, let alone a machine with a number similar to the one originally recorded. I reject this suggestion as highly improbable. Senior Constable Connolly also gave evidence that the records in the Breath Testing Record Sheet also matched “almost identically” with the records shown on the alcolyzer machine (T 326.8). In the end, the suggestion that another alcolyzer device was located not connected to the plaintiff was not pursued by counsel for the plaintiff in final submissions.
Constable Shearer gave evidence that at about 1.30am on 24 November 2013 she commenced roadside breath-testing duties with Senior Constable Melide on Werrington Road, Werrington adjacent to Rance Road. Evidence was given that Constable Shearer undertook the breath tests while Senior Constable Melide directed the cars into a location on the shoulder next to Werrington Road. Constable Shearer said that the vehicle in which the plaintiff and Mr Winchester were travelling was directed at about 1.40am by Senior Constable Melide to pull in front of the police car. The vehicle initially pulled in behind the police car and then after further directions by Senior Constable Melide, pulled in front of the police car and stopped.
Constable Shearer said that she walked up to the driver’s side window of the car the plaintiff was driving and noticed that fairly loud music was playing. She then said: “You’ve just been stopped for the purpose of a random breath test”. The plaintiff replied, “What?” and Constable Shearer said to turn the music down. The plaintiff then turned the music down slightly. Constable Shearer then asked the plaintiff whether she had alcohol that night and the plaintiff replied “Yes”. Constable Shearer said “have you had any in the last 15 minutes” and the plaintiff said, “I don’t know. When was our last drink?” She turned to Mr Winchester next to her to ask him that. Constable Shearer said that at this point the plaintiff appeared a bit agitated.
Constable Shearer then gave evidence that the plaintiff started to swear. Evidence was given that Mr Winchester said to Constable Shearer that they had been drinking at the Kurrajong Bowling Club and that they had just driven from there towards their home in Rance Road in Werrington.
Constable Shearer said that she then said to the plaintiff “Can you count one to five, please” and held out the alcolyzer towards her. Constable Shearer said that she asked the plaintiff how much she had had to drink and the plaintiff said she did not know and swore. Constable Shearer said that she could smell alcohol coming from the plaintiff and that her eyes were glazed. The plaintiff having spoken towards the alcometer, it came up with a positive reading of alcohol. Constable Shearer then asked the plaintiff to turn the music down again and to stop having “attitude”. Constable Shearer’s evidence was that the plaintiff replied: “What fucking attitude? I am not the one with the attitude. You can’t pronounce your words properly. I can’t understand you.” Constable Shearer then gave evidence that she said “I’m Constable Shearer from St Marys Police. The device has indicated that you have alcohol on your breath. I now require you under the Road Transport Act to provide a sample of your breath. Now I require you to blow into this device.” A tube was then placed on the device for the plaintiff to blow into. Constable Shearer added: “One long continuous breath until I tell you to stop”. Constable Shearer saw the plaintiff place her lips around the tube but the device indicated that an insufficient sample had been provided. Constable Shearer gave evidence that she told the plaintiff that she had provided an insufficient sample and that she needed to blow the tube again. Constable Shearer said that a failure to supply a sample may lead to a person being arrested.
The plaintiff undertook a further test and it again recorded that an insufficient sample had been provided. Constable Shearer again said to the plaintiff that failure to supply a sufficient sample may lead to her arrest. Constable Shearer gave evidence that the plaintiff replied in response to this “Just fucking arrest me then.” Constable Shearer asked the plaintiff whether she was refusing to supply a sample of her breath and the plaintiff allegedly swore. Constable Shearer then required the plaintiff to undergo the test again and this time the plaintiff provided a sufficient sample which came up with a reading of 0.082 on the device. At about this time Senor Constable Melide came and stood beside Constable Shearer near the window of the car the plaintiff was driving.
Constable Shearer then gave evidence that she said to the plaintiff that she had returned a positive breath test and that she was under arrest for the purpose of a breath analysis and that she did not have to say anything if she did not want to but that anything she did say would be recorded and could be used as evidence.
The plaintiff then allegedly swore again at Constable Shearer.
Constable Shearer gave evidence that after asking the plaintiff for her licence she decided to handcuff the plaintiff while she was still in the car because she was quite aggressive and agitated. The plaintiff tried to open the door of the vehicle while Constable Shearer was standing right outside of it and Constable Shearer shut the car door after it hit her on her leg. At this time the plaintiff was allegedly swearing considerably. Constable Shearer asked the plaintiff to put her hands out of the window so she could be handcuffed and the plaintiff did that. Constable Shearer then placed the handcuffs on the plaintiff. Whilst this was occurring Constable Shearer gave evidence that Mr Winchester was trying to calm the plaintiff down.
Constable Shearer then gave evidence that she and Senior Constable Melide opened the door to the car and the plaintiff alighted from the vehicle. Constable Shearer was standing on the right hand side of the plaintiff and Senior Constable Melide on the left hand side. Constable Shearer gave evidence that about 30 seconds after the plaintiff had alighted from the vehicle, Senior Constable Melide applied a wrist lock to the left hand of the plaintiff. Constable Shearer told the plaintiff to walk towards the police car. At that time Constable Shearer gave evidence that the plaintiff was still swearing, was moving her arms back and forth and was trying to pull her arm out of Constable Shearer’s grip. Evidence was then given that after a couple of steps the plaintiff dug her heels into the ground and dropped her weight and refused to move any further, whilst still trying to get out of the grip of the police officers. Constable Shearer found it difficult to contain the plaintiff despite the plaintiff’s relatively slight build and weight. Constable Shearer said a number of times to the plaintiff that she should “stop resisting”. At the same time Constable Shearer said that she applied a partial one handed wrist lock on the plaintiff’s right hand.
At about this time Constable Shearer gave evidence that she, the plaintiff and Senior Constable Melide fell to the ground. At the time Constable Shearer had assumed that Senior Constable Melide had performed a leg sweep in an attempt to control the plaintiff but she did not see him do that. Constable Shearer did not have a completely clear view on what was happening on the other side of the plaintiff where Senior Constable Melide had been standing. Whilst on the ground Constable Shearer said that the plaintiff continued to thrash around and Senior Constable Melide called for a caged truck to collect the plaintiff. Constable Shearer gave evidence that at no time from when the plaintiff alighted from the vehicle to the arrival of the caged truck did she leave the plaintiff and Senior Constable Melide as it was “bad practice” to do so (T 160.43).
Once the caged truck arrived the plaintiff was placed inside the cage and the officers in that vehicle took the plaintiff back to St Marys Police Station.
Constable Shearer then gave evidence that after the plaintiff had been put in the caged truck she wrote some notes in her police notebook. These notes were made according to Constable Shearer at about 1.45am. This is the time recorded in the notebook (Exhibit 2, page 13). It should be noted that this may be an approximate time as it is slightly inconsistent with the times in the police radio records (see Exhibit 2, pages 10-11).
Constable Shearer said that her notes referred to a positive breath test of 0.89 with the alcolyzer device number 10895. She gave evidence that she was relying on her memory when completing those numbers but that they were later realised by her to be incorrect because the alcolyzer reading of the positive breath test was 0.082 and the alcolyzer device number was 10892. Constable Shearer gave evidence that at no time while she was near the corner of Werrington Road and Rance Road with the plaintiff did she hear the plaintiff say anything to her about having broken her wrist or arm or screaming out in pain. Similarly, Constable Shearer said that at no time did she hear either a popping or cracking sound that was consistent with a bone breaking.

On returning to St Marys Police Station, Constable Shearer accessed the police COPS computer system and completed details relating to the incident (Exhibit 2, pages 34-36). At that time Constable Shearer intended on charging the plaintiff. Constable Shearer later was informed that the breath analysis reading for the plaintiff undertaken during a test at St Marys Police Station was 0.064.
In the COPS entry Constable Shearer referred to the plaintiff raising her left leg and kicking Senior Constable Melide “on his upper right leg” with Senior Constable Melide feeling immediate pain to the area. Constable Shearer gave evidence that she did not see the plaintiff kick Senior Constable Melide but had obtained that information from Senior Constable Melide (T 169.45- T 170.32). She believed that was the truth of what had occurred because Senior Constable Melide had told her of it. Constable Shearer said she did not see everything that occurred while the plaintiff was between the two police officers and what was told to her by Senior Constable Melide did not appear to be implausible to her (T 170.23).
Constable Shearer then indicated she prepared charges for three offences involving the plaintiff being a low range PCA, assault police and resist police. Constable Shearer was the informant in relation to the three charges (Exhibit 2, page 45). Evidence was given that at no time between deciding to charge the plaintiff on 24 November 2013 and serving the Court Attendance Notice did anything occur that caused Constable Shearer to change her mind in relation to charging the plaintiff. Constable Shearer said that at the time she charged the plaintiff she considered that each of the charges was a proper charge to be put before a court, that she had no grudge against the plaintiff and that there was a prospect in her opinion that the plaintiff would be found guilty of each of the offences with which she had been charged.
The following matters should be noted in relation to the evidence of Constable Shearer:

Constable Shearer gave evidence that she handcuffed the plaintiff whilst the plaintiff was in the car (T 155.9). Senior Constable Melide gave evidence that the plaintiff was not handcuffed whilst she was in the car but was handcuffed outside the car and for a period of time by only one of the cuffs. I prefer the evidence of Constable Shearer on this matter as it is consistent with the evidence of the plaintiff and Mr Winchester and Constable Shearer would likely know whether she handcuffed the plaintiff while she was in the car. It is also consistent with Constable Shearer’s police book (Exhibit 2, page 13);

As stated above, Constable Shearer gave evidence that Senior Constable Melide told her that the plaintiff had kicked him on his right upper leg although she did not see it occur (T 169.45-170.14). Senior Constable Melide gave evidence that he did not tell Constable Shearer directly of this. Although he told his supervisor (and Constable Shearer may well have been present), it allegedly was common knowledge at the St Mary’s Police Station because he was made fun of in relation to it by other officers. I prefer Constable Shearer in relation to this point as it is much more likely that she heard it from Senior Constable Melide directly as he had been her shift partner. It is also consistent with the COPS entry which was completed by Constable Shearer (Exhibit 2, page 36);

Constable Shearer gave evidence at the hearing that her memory had consisted partly of material from her statements and partly from her actual recollection (T 184.37-46);

Constable Shearer was cross-examined in relation to the similarity between her evidence in chief and the evidence in her statements for the Local Court proceedings. She stated that the similarity in phrases was her recollection not merely repeating what was in her statements (T 185.43-186.29);

Constable Shearer conceded that evidence she had given in the Local Court that it was her who had got on the radio and called for a caged vehicle for the plaintiff was incorrect. Having regard to the transcript she agreed it was Senior Constable Melide who had called for the caged vehicle (T 187.12-21; Exhibit 2, pages 10-11). This was an appropriate concession;

Constable Shearer was cross-examined in relation to some of the conversations she had given evidence of in chief not appearing in the COPS entry. However, she said that she did recall the plaintiff making the statements including the statement “What fucking attitude? You’re the one with the attitude, you don’t know how to pronounce your words properly. I can’t understand you.” (T 187.49-188.40);

Constable Shearer conceded that she prepared her first statement for a brief for the Local Court proceedings about two months after 24 November 2013 (T 189.38);

Constable Shearer conceded that her recording of the alcometer reading was incorrect in her police notebook as was the alcometer number (T 198.25-50; Exhibit 2, page 13). By the time she had completed the COPS entry the alcometer number of 10892 was correct (Exhibit 2, page 35) but the alcometer reading was still stated incorrectly as 0.089. This continued in Constable Shearer’s first statement (Exhibit 2, page 53) but the alcometer reading was corrected in her second statement dated 31 May 2014 (Exhibit 2, page 68);

Constable Shearer was cross-examined about what she said was the plaintiff’s aggressive attitude. However, Constable Shearer made a reference in her police notebook to the plaintiff having “resisted straightaway” (T 200.40-47; Exhibit 2, page 13);

Constable Shearer was cross-examined in relation to her opinion that the plaintiff was well affected by alcohol compared to the view of the officer undertaking a breathalyser test at St Marys Police Station, Senior Constable Kennedy, that the plaintiff was only “slightly affected” by alcohol in his opinion (T 205.45-206.1; Exhibit 2, pages 36 and 43);

Constable Shearer was cross-examined in relation to her failure to charge the plaintiff with an offence relating to offensive language which would have been consistent with her evidence that the plaintiff had used abusive language on many occasions at the roadside. Constable Shearer said that she did not see the need to charge the plaintiff with swearing in addition to the other offences (T 212.6-25);

Constable Shearer was cross-examined in relation to the evidence of Senior Constable Melide that he saw the plaintiff reaching towards the ignition and steering wheel a number of times. Constable Shearer said that she could not recall if she did see the plaintiff do this (T 213.3-41).

Evidence of Senior Constable Melide

Oral evidence was given by Senior Constable Melide who was the officer who arrested the plaintiff with Constable Shearer.
Senior Constable Melide gave evidence in relation to a wrist lock and stated that it was an approved technique taught to police to gain control of a person. He said that it was an approved technique both at the time the plaintiff was arrested and at the time of the hearing. This was not disputed.
Senior Constable Melide gave evidence that he set up a vehicle stop for random breath testing at Werrington Road near the intersection with Rance Road at about 1.20am on 24 November 2013. The first driver tested was at 1.27am. Senior Constable Melide gave evidence that he was directing the vehicles into the stop and Constable Shearer was undertaking the breath testing. Senior Constable Melide said that he was wearing a high visibility police vest in addition to a police cap and a torch and was also making use of a “Stop Police sign” to halt vehicles for testing.
Contrary to Constable Shearer, Senior Constable Melide said that vehicles were pulled into an area behind the police vehicle (T 235.25). Senior Constable Melide gave evidence that he first saw the plaintiff’s vehicle at 1.38am as that was the time he placed in the Breath Testing Record Sheet he was completing (Exhibit 2, page 3). He directed the vehicle the plaintiff was driving into the road stop area. Senior Constable Melide said that at the time the vehicle driven by the plaintiff had its right indicator on and the plaintiff subsequently put her right arm out of the window indicating that she wanted to turn right and shook her hand vigorously towards Rance Road. Senior Constable Melide said that he again directed the vehicle the plaintiff was driving towards the stop area.
Senior Constable Melide said that he observed Constable Shearer talking to the driver of the vehicle and soon after removing the tube from her pocket and placing it on the alcolyzer device. This gave him the belief that alcohol must have been detected. He gave evidence that he could hear a female voice coming from the vehicle yelling at Constable Shearer (T 239.14-29). Senior Constable Melide said that he then walked towards the plaintiff’s vehicle and Constable Shearer. He also heard Constable Shearer request the plaintiff to supply a sample. Senior Constable Melide gave evidence that he observed Constable Shearer attempt to undertake a breath test “approximately four times” and noticed that the device was not reacting in a way it would if a sample was being supplied. He then said the following words to the plaintiff: “I am Senior Constable Melide of St Marys Police. You are not supplying a sample of your breath and the device is not indicating that you are”. He gave evidence that the plaintiff then responded “Fuck off, I am”. The plaintiff appeared in an agitated state to Senior Constable Melide, her voice was raised and she was almost shouting in his direction.
He then saw the plaintiff supply a sample of her breath and saw the device responding. He gave evidence that he saw the device register alcohol within the plaintiff’s breath and he saw and heard Constable Shearer place the plaintiff under arrest, with words to the following effect: “I am Constable Shearer of St Marys Police. You are under arrest for returning a positive breath test. You will now be taken back to St Marys Police Station for a further test.” He gave evidence that the plaintiff responded: “Fuck off, I’m not”.
Senior Constable Melide said that he saw the plaintiff reach for the ignition keys. He then saw Constable Shearer take hold of the plaintiff’s right wrist. He then claimed to see the driver’s door being opened by the plaintiff at a rapid pace and he observed it striking the leg of Constable Shearer. The plaintiff then came out of the vehicle with her left hand flailing in the air and Senior Constable Melide stepped in to take control of the plaintiff’s left hand. At that time he gave evidence that the plaintiff was not handcuffed (T 243.42) but the plaintiff was handcuffed soon after (T 244.4). Senior Constable Melide gave evidence that the plaintiff was highly agitated, was yelling and screaming, was moving her upper torso about vigorously back and forth and was swearing. He then applied a wrist lock to the plaintiff’s left wrist. Senior Constable Melide asked the plaintiff to “comply with directions” and the plaintiff did not comply but was resisting. At that stage the plaintiff leant towards his right hand and attempted to bite him. The plaintiff complained about the wrist lock hurting and he said that he would back it off but the plaintiff needed to comply with directions.
Senior Constable Melide said he then backed off the wrist lock on the plaintiff’s left hand and the plaintiff kicked him in a “donkey or horse kick” in the groin. This caused Senior Constable Melide immediate pain and resulted in him leaning forward and sighing (T 245.36). He stood upright again and reapplied pressure to the wrist lock on the plaintiff’s left hand. He gave evidence that he did not regard the plaintiff as being under control and she continued to thrash around and resist.
There was then, on his evidence, an uncontrolled fall to the ground of Senior Constable Melide, Constable Shearer and the plaintiff. Senior Constable Melide had previously made two radio calls for a police caged vehicle. Whilst the three persons were on the ground Senior Constable Melide made an “urgent” radio call for the caged vehicle which arrived soon after (T 247.46). Whilst they were on the ground the plaintiff was swearing, yelling and thrashing around.
While the three of them were on the ground, Mr Winchester approached. Senior Constable Melide gave evidence that he said to Mr Winchester who was trying to calm the plaintiff “Look mate, I know you’re only trying to help, but you hear those sirens, they’re coming urgent. They’ll perceive you as a threat if you continue to stand over me, so get back” (T 249.10).
The police caged vehicle then arrived and conveyed the plaintiff to St Marys Police Station.
Senior Constable Melide then gave evidence that after the incident at 2.47am he completed his police notebook (Exhibit 2, pages 14-16). This was the time recorded in the notebook. In this he made reference to some of the plaintiff’s swearing and him being kicked in the groin area.
In cross-examination, it was put to Senior Constable Melide that:

The plaintiff had never sworn at him;

The plaintiff had never resisted arrest or thrashed around;

The plaintiff had not kicked him in the groin or attempted to bite him; and

That he had fractured the plaintiff’s left wrist whilst using a wrist lock without any reason and had used excessive force.

All of these matters were denied by Senior Constable Melide.
The following matters were noted in the course of Senior Constable Melide’s evidence:

There was different evidence between Senior Constable Melide and Constable Shearer about the location where the plaintiff was required to pull in her car. Senior Constable Melide gave evidence that the plaintiff was required to pull in her car behind the police vehicle whereas Constable Shearer gave evidence that initially the plaintiff pulled in behind the police vehicle and was then required to move in front of the police vehicle (see T 236.21-237.3);

Senior Constable Melide gave evidence that the plaintiff had her right indicator on to go into Rance Road and then confirmed that by using her hand outside the vehicle pointing towards Rance Road. None of this was mentioned in the evidence of Constable Shearer (see T 238.7-38);

Senior Constable Melide said that he saw Constable Shearer attempt to obtain a sample of the plaintiff’s breath “approximately four times” before a positive sample was obtained (T 240.14). Constable Shearer gave evidence that there were only two attempts prior to a positive sample being obtained. This is confirmed by the recordings on the alcolyzer device;

Both Senior Constable Melide and Constable Shearer were consistent that it was Constable Shearer who placed the plaintiff under arrest following the positive result being obtained (T 241.23-32);

Senior Constable Melide gave evidence that handcuffs were not placed on the plaintiff before she exited the car but at some time after she exited the car (T 242.10; 244.3-9). The plaintiff and Constable Shearer said that the handcuffs had been placed on the plaintiff while she was still in the car;

Senior Constable Melide said he saw the plaintiff reaching for the ignition keys (T 242.32) whereas Constable Shearer did not see this;

As stated above, Senior Constable Melide saw the plaintiff push the driver’s door of the car she was driving at a rapid pace into the leg of Constable Shearer (T 242.48);

Both Senior Constable Melide and Constable Shearer were consistent that the plaintiff was swearing frequently, was highly agitated and following her arrest was moving her upper torso about vigorously back and forth and resisting;

Constable Shearer said she did not see the plaintiff kick Senior Constable Melide. As indicated above, Senior Constable Melide gave evidence that the plaintiff used her left leg to kick him in the groin (T 245.24-33);

After this kick both Senior Constable Melide and Constable Shearer said that they were having trouble controlling the plaintiff who was moving her upper torso around and thrashing her arms (T 246.1-16);

Both Senior Constable Melide and Constable Shearer confirmed that there was then an uncontrolled fall to the ground of the two police officers and the plaintiff (T 248.8). Constable Shearer believed this was as a result of a leg sweep of the plaintiff by Senior Constable Melide;

Whilst the three persons were on the ground Senior Constable Melide gave evidence that he believed he was “fighting for his life” (T 304.9). Having regard to the gender, height and weight of the plaintiff and the fact that Constable Shearer was also present, this would appear to be an exaggeration. Clearly if the evidence of Senior Constable Melide is to be accepted on this point the plaintiff was struggling considerably and the police officers were attempting to reassert control. However, there is no indication at any stage, in my view, that there was any danger to the life of either of the police officers by the plaintiff or due to the location of the fall;

Senior Constable Melide gave evidence that he spoke to Mr Winchester who was trying to calm the plaintiff but ordered him to get back. A conversation in the terms alleged was apparently not heard by Constable Shearer (T 249.8);

Senior Constable Melide gave evidence that his statement for the Local Court proceedings had been prepared just from his memory whereas in the evidence he gave in these proceedings he said he also relied on his notebook (T 252.46-253.17). Comparing both documents it appears that Senior Constable Melide did place some reliance on his notebook;

It appears that there are a number of matters referred to by Senior Constable Melide in his statement which do not appear in his notebook. In general, his statement is far more detailed than his notebook (Exhibit 2, pages 14-16; Exhibit 2, pages 56-58). The statement for the brief in the Local Court proceedings is dated 10 February 2014, a few months after the incident. It is not surprising that a statement prepared for proceedings in court was more detailed than the police notebook details having regard to the likelihood that all relevant details would be required to be considered;

Senior Constable Melide gave evidence that he did not recall at any point hearing loud music coming from the plaintiff’s vehicle (T 281.12). This is contrary to Constable Shearer’s recollection. However, by the time Senior Constable Melide approached the vehicle it may have been that the music had been turned down somewhat;

Senior Constable Melide gave evidence that he heard Constable Shearer arrest the plaintiff. That is likely as he was standing in the vicinity of the driver’s side window (T 288.45). Although Senior Constable Melide said he was not looking at the alcometer (T 289.5) it seems that he made the assumption that there was a positive direct test result because he heard Constable Shearer arrest the plaintiff. I think it is likely that he also heard Constable Shearer say that the alcometer had returned a positive breath sample. Therefore both police would likely have been of the view that they had the power to arrest the plaintiff at that point;

Senior Constable Melide was cross-examined on paragraph 9 of his statement (Exhibit 2, page 57) when it states: “I observed the accused flail her arms about as Constable Shearer attempted to hold on to the accused right wrist”. In cross-examination Senior Constable Melide altered that evidence to say that he saw a flailing arm but not both arms, although it may have been that a second arm could not be seen because it was handcuffed at the time (T 296.44-298.2);

When he was on the ground wrestling with the plaintiff with Constable Shearer, Senior Constable Melide stated that the following was the position:

“She had already kicked me in the groin. I already felt incapacitated, and she was resisting me. It was drawing all my strength to try and control her. I was out of breath. I was calling for urgent assistance from other police. I was fighting for my life, yes.” (T 304.37);

Senior Constable Melide was cross-examined in relation to how long he had the plaintiff in a wrist lock. In his Local Court evidence he said it was for approximately 10 minutes; however he corrected that in cross-examination and said it was for a minute. He agreed he was mistaken in relation to his evidence in the Local Court (T 304.50-T 306.1). It seems likely that the wrist lock was applied for a far shorter period than 10 minutes, probably only one or two minutes;

Senior Constable Melide gave evidence that he first became aware that the plaintiff was injured almost at the completion of his shift at 6am on 24 November 2013 (T 308.26). This was well after his police notebook was apparently written up;

Senior Constable Melide was cross-examined in relation to what he claimed he said to Mr Winchester while he was on the ground and the fact that it was significantly more expansive than his evidence in the Local Court. Senior Constable Melide stood by his evidence at the hearing (T 309.16-T 312.26). I think it is more likely than not that the direction given by Senior Constable Melide to Mr Winchester was more direct and not as lengthy as that asserted by Senior Constable Melide.

Overall, I formed the opinion that Senior Constable Melide did not have a good recollection of all aspects of what occurred at the roadside before and after the plaintiff was arrested. In my view, he remembered some aspects of what occurred and otherwise was relying heavily on the contents of his notebook and his statement. I formed the opinion that caution should be exercised in relation to considering his evidence. The claim that he believed he was “fighting for his life” appears questionable and exaggerated.

Evidence of Senior Constable Joseph Connolly

Senior Constable Connolly was one of the two police officers in the police vehicle with a “cage” who came to convey the plaintiff from the roadside to St Marys Police Station.
The importance of Senior Constable Connolly’s evidence was that in his statement dated 1 February 2014 he said that he saw the plaintiff who was handcuffed appearing to strain herself and thrash around and swear constantly as she abused Senior Constable Melide and Constable Shearer. He also said that the plaintiff “maintained her hostility” towards the police present in the charge room at St Marys Police Station and continued the swearing and abusive comments (Exhibit 2, pages 59-60). This evidence is directly contrary to the plaintiff’s evidence.
In cross-examination Senior Constable Connolly stood by his evidence. He conceded that his recollection was a lot fresher in his mind when he prepared his statement than at the hearing in this matter. He admitted in his evidence in chief that he had little independent recollection of his involvement in the incident (T 324.49-T 325.3).
Overall, Senior Constable Connolly appeared to be an honest witness who gave his evidence in a forthright fashion. However, his statement was prepared some time after the events in question.

Leading Senior Constable Scott

Senior Constable Scott was the Custody Manager at St Marys Police Station when the plaintiff was brought to the station after being arrested on 24 November 2013. Senior Constable Scott explained in her evidence that as the Custody Manager she was “an independent person” (T 345.13) and the plaintiff was “not out of my sight at all” (T 345.12).
Senior Constable Scott completed the Custody Management Record which formed part of Exhibit 2 (pages 21-26). The importance of that document was that it indicated that there was no complaint of pain or injury by the plaintiff at the time she arrived at St Marys Police Station and that she showed aggression towards police and was intoxicated (page 22). Senior Constable Scott said that the first time that the plaintiff complained of pain in her wrist was when she returned from having a breathalyser test conducted by Senior Constable Kennedy. Senior Constable Scott indicated that the material appearing in the Custody Management Record at pages 22-23 was as a result of her observations over a period of 20 minutes and any complaints made to her by the plaintiff (T 336.28).
Senior Constable Scott indicated in her evidence that she had some but limited memory of the plaintiff coming into the custody area (T 332.33). The Custody Management Record indicated the plaintiff’s time of arrival at St Marys Police Station (1.55am) and that information was commenced to be entered into the computer relating to the plaintiff by Senior Constable Scott at 2.07am (Exhibit 2, page 21). Senior Constable Scott gave evidence in chief that she did not at the time of the hearing recall what it was about the plaintiff that made her comment that she was aggressive towards police (T 335.6). She confirmed that at no time during the 20 minutes that she had the plaintiff initially under observation did the plaintiff complain that she had a sore wrist or that she had broken her wrist (T 336.34). Senior Constable Scott indicated that if the plaintiff had complained that she believed she had a broken wrist or broken arm when she arrived at the station then she would have called an ambulance straight away (T 347.37). Senior Constable Scott maintained her evidence in chief under cross-examination that the form was accurate and completed in accordance with her observations of the plaintiff at the time.
Senior Constable Scott appeared to be an honest witness who gave her evidence in a direct and forthright fashion. Her evidence was generally consistent with the Custody Management Record which was apparently created contemporaneously with the plaintiff’s arrival and initial presence at St Marys Police Station and this was a significant piece of evidence. There was no evidence that Senior Constable Scott had any discussions with Senior Constable Melide or Constable Shearer before the Custody Management Record was completed by her.
There was considerable attention paid in cross-examination in relation to whether the Caution and Summary of Part 9 form (Exhibit 2, pages 19-20) related to the plaintiff. The form refers to the “detained person” refusing to sign the acknowledgment in the document as the person was said to be “aggressive and well intoxicated”. The form was signed by Senior Constable Scott with the time and date noted as “2.20 24-11-13”. In my view, it is unnecessary to determine this issue as the Custody Management Record itself included that the plaintiff was “Aggressive towards Police” (Exhibit 2, page 22). It also indicated that a copy of what was described as “Caution and Summary of Part 9 of [LEPRA]” had been given (Exhibit 2, page 24).

Evidence of Constable Larobina

Constable Larobina was one of the two constables (with Senior Constable Connolly) who arrived at the roadside on 24 November 2013 and conveyed the plaintiff in a caged police vehicle to St Marys Police Station.
Constable Larobina had prepared a written statement for the purposes of the Local Court proceedings (Exhibit 2, pages 61-62). In that statement Constable Larobina indicated that when he arrived at the scene he saw Senior Constable Melide and Constable Shearer restraining a woman who was the plaintiff. He also indicated that the plaintiff was very agitated and frustrated, was throwing her arms around making it difficult to place them in handcuffs.
It appeared from the oral evidence that Constable Larobina had no reliable recollection of the events of when he arrived at the roadside. His statement should also be regarded with some caution because it suggests that the plaintiff was not in handcuffs when he and Senior Constable Connolly arrived at the roadside which is contrary to the evidence of the plaintiff, Mr Winchester, Senior Constable Melide and Constable Shearer.
Constable Larobina gave oral evidence in chief that before he placed the plaintiff in one of the cells at St Marys Police Station he asked her to remove her jewellery which she did and she gave it to him. He gave evidence that at the time, the plaintiff indicated no pain and he did not notice any swelling when he removed the handcuffs. This is contrary to the plaintiff’s evidence that two women police officers assisted her to remove her jewellery in a cell because she could not do so herself due to her swollen and painful wrist.
Overall, in my view the evidence of Constable Larobina should be treated with some caution as it was clear from his cross-examination that he had little if any independent recollection of the events of 24 November 2013, particularly when he had conveyed the plaintiff to the police station and placed her in a cell. His statement as to the timing of the handcuffs being applied to the plaintiff also appears to be incorrect.

Evidence of Senior Constable Kennedy

Senior Constable Kennedy was the police officer who undertook the breath testing procedure on the plaintiff after she had arrived at St Marys Police Station. He prepared the breathalyser certificate dated 24 November 2013 under Schedule 3 of the Road Transport Act 2013 (NSW) (Exhibit 2, pages 29-32).
The relevance of Senior Constable Kennedy’s evidence is that he indicated, contrary to the other police, that the plaintiff was only “slightly” affected due to alcohol. He also confirmed that in his report (Exhibit 2, page 30) where he indicated that the plaintiff’s attitude was “hostile, irritable, other: aggressive with police” this was based on what had been told to him by other officers (T 364.9). He also confirmed that the plaintiff had indicated to him that she had her lift wrist injured in the course of the arrest (Exhibit 2, page 31).
Overall, Senior Constable Kennedy appeared to be a witness of truth. His evidence assists the plaintiff in indicating that whilst she was at St Marys Police Station she appeared only “slightly” affected by alcohol as opposed to “well affected” by alcohol.

Documents relied on by the defendant

Nepean Hospital Records

The defendant relied on progress notes from Nepean Hospital relating to the plaintiff. While these were generally consistent with the plaintiff’s version, the notes include the following: “Patient states she was then thrown into cell at police station and fell onto right side”. This is inconsistent with the plaintiff’s evidence and it is not supported by any other evidence.
In my view limited weight should be given to this inconsistency as it is only one note of many in the notes taken and it is unclear what questions were asked which elicited the response and whether the response given is accurately recorded.

Police records and statements

The defendant relied on the police records and statements in Exhibit 2 which were claimed to be generally consistent with its case and negate a concoction of the accounts of Senior Constable Melide and Constable Shearer. These are considered, where relevant, in the course of these reasons.

Submissions of the parties

Counsel for the parties have provided both extensive written and oral submissions to the court.
Each relies on inconsistencies between witnesses and in relation to documentary material.
The plaintiff submits:

The evidence of the plaintiff and Mr Winchester should be preferred to that of the police witnesses. It was submitted that the differences between the evidence of the plaintiff and Mr Winchester were minor;

There were significant inconsistencies between the evidence of Senior Constable Melide and Constable Shearer which render their accounts unreliable and likely fabricated;

The police witnesses had poor recollections of the events of 24 November 2013 and should not be believed in relation to their evidence;

There were significant inconsistencies between the police witnesses’ evidence in the Local Court proceedings and in these proceedings and also relevant inconsistencies between their statements and their evidence in these proceedings;

Constable Shearer did not see the kick alleged by Senior Constable Melide as it did not occur;

The plaintiff at no stage resisted the police officers;

The hospital records from Nepean Hospital are important contemporaneous records consistent with the plaintiff’s version;

It is undeniably the fact that the plaintiff’s wrist was broken and this strongly suggests that excessive force was used by Senior Constable Melide. A heavy onus rests on the defendant to justify the degree of force used. The force used by Senior Constable Melide was not reasonably necessary in the circumstances;

Constable Shearer and/or Senior Constable Melide acted maliciously and without reasonable and proper cause in instituting and maintaining the prosecution of the plaintiff for allegedly assaulting and resisting Senior Constable Melide.

Counsel for the defendant relied on the following:

There were significant inconsistencies between the evidence of the plaintiff and Mr Winchester. Both should be regarded as having given false evidence;

The plaintiff and Mr Winchester gave versions of the breath testing which occurred on 24 November 2013 which were inconsistent with the alcolyzer readings shown in Exhibit 2 and were incorrect. This showed both collusion between them as to their evidence and it rendered their evidence unreliable;

The fact that the plaintiff was aggressive and was resisting arrest is confirmed by the urgent call for assistance by Senior Constable Melide on his radio;

The fact that the plaintiff was swearing and aggressive is consistent with the evidence of Senior Constable Connolly, Constable Larabina and Senior Constable Scott;

It is also consistent with the documentary records when the plaintiff was placed into custody upon arriving at St Marys Police Station which should be accepted;

The suggestion that Senior Constable Melide, without proper cause, put the plaintiff in a forceful wrist lock at the same time as the plaintiff was (on the plaintiff’s account) a co-operative, non-swearing, non-resisting person who willingly complied with all directions, was highly unlikely and should be rejected;

Overall the police witnesses would impress as more reliable witnesses and should be preferred;

The charges for assault police and resist police were properly brought against the plaintiff by Constable Shearer as the informant without any malicious intent.

I have considered the various submissions and the inconsistencies in the evidence which have been noted above.
The plaintiff’s essential case is that the police officers concocted their versions to justify the plaintiff’s broken wrist. This is a very serious allegation to make. It was submitted that the accounts of the police officers were inconsistent and unreliable and established the alleged concoction. Having regard to the plaintiff’s allegations, I have reviewed and considered the evidence of all witnesses and carefully compared it to the documentary records. I also had in mind the possibility of concoction whilst the police officers were giving their evidence.
In general terms, having considered all the evidence carefully, I do not accept this aspect of the plaintiff’s case.
In my opinion overall Constable Shearer should generally be preferred in relation to her account of what occurred on 24 November 2013. Constable Shearer impressed the Court as a fairly careful witness who made concessions where appropriate and admitted where she did not recall events. An example is that she did not claim to have seen the alleged kick from the plaintiff to Senior Constable Melide when she could easily have alleged this if there was indeed some type of agreement between the police to create an account to show that excessive force was not used.
Overall, I did not find the plaintiff and Mr Winchester to be reliable witnesses. In my view there were numerous relevant and important inconsistencies in their evidence, which I have set out above and which I take into account. I mention now some of the more important inconsistencies. First, and importantly, there was their evidence in relation to the breath testing which was undertaken at the roadside which was inconsistent with the records in Exhibit 2 (pages 4-8) which I find to be the records applicable to the plaintiff. This means that substantial parts of the evidence of the plaintiff and Mr Winchester relating to the breath testing are incorrect.
Having regard to the general consistency between the evidence of the plaintiff and Mr Winchester on this issue, it also renders it likely that there have been discussions between the plaintiff and Mr Winchester in relation to what occurred at the roadside breath testing and either a common incorrect version was agreed on or one of them was told the other person’s version and adopted it.
The fact that this aspect of the evidence of the plaintiff and Mr Winchester was incorrect in the light of the recordings on the alcolyzer used, raises questions about the reliability of the remainder of their evidence.
Secondly, the plaintiff claimed not to have sworn in the course of the incident although she initially conceded that she had sworn on one occasion and then retracted this evidence. Overall her claim that she was not aggressive or swearing is inconsistent with the evidence of Constable Shearer, Senior Constable Melide, Senior Constable Connolly, Constable Larabina (in his statement) and Senior Constable Scott. It is also inconsistent with the contemporaneous records made by Senior Constable Scott when the plaintiff arrived at St Marys Police Station (Exhibit 2, pages 21-26).
Thirdly, the police notebooks of Senior Constable Melide and Constable Shearer and the COPS records support the defendant’s case. While there is always the possibility that these were deliberately factually incorrect I reject that. The records seem to have been created at the time and before Senior Constable Melide and Constable Shearer were aware of the plaintiff’s injury.
Fourthly, the suggestion that the plaintiff was resisting Senior Constable Melide is supported by the request of Senior Constable Melide for “urgent” and “expedited” police presence in a caged police vehicle in the police radio records (Exhibit 2, page 10).
Fifthly, the version of Constable Shearer is supported by her statement prepared on or about 11 February 2014. This was less than two months after the events in question when the events would have been reasonably fresh in her mind (Exhibit 2, page 50). I have taken into account the possibility that this account was also fabricated or exaggerated.
Sixthly, the plaintiff and Mr Winchester rely on their recollections whereas the police witnesses have access to contemporaneous records in their notebooks and other records.
Seventhly, the plaintiff and Mr Winchester were intoxicated to various degrees at the time.
Eighthly, it seems highly implausible to me that Senior Constable Melide would use a forceful wrist lock on the plaintiff if she was the co-operative person she claims who was not swearing or resisting her detention but was compliant at all times.
Ninthly, I am not satisfied that the plaintiff has established her case to the necessary standard having regard to the serious allegations made by her of a police concoction: see Section 140 of the Evidence Act 1995.
I refer to further matters relied on in the factual findings below.
Where there is an inconsistency, I prefer the account of Constable Shearer to that of Senior Constable Melide. It seemed to me that Senior Constable Melide did not have as good a recollection of the events in question as he asserted in the course of his oral evidence. In many cases he had a different recollection to Constable Shearer, the plaintiff and Mr Winchester. Examples include where the plaintiff was initially handcuffed and where the plaintiff’s vehicle was positioned in relation to the police car.

Factual findings on the evidence

In the light of all the evidence, I make the following specific factual findings:

The plaintiff and Mr Winchester arrived in their vehicle near the intersection of Werrington Road and Rance Road soon after 1.30am on 24 November 2013. The plaintiff was driving the vehicle. At that time she had consumed several drinks and was moderately intoxicated. Mr Winchester had consumed at least 10 standard drinks and was well affected by alcohol;

On the facts of the present case, the allegation of wrongful arrest alleged seems in reality to be a case of false imprisonment.
As I understand it, it is not in dispute that the plaintiff was lawfully arrested at the roadside by Constable Shearer. Constable Shearer gave evidence that she placed the plaintiff under arrest because of the reading on the alcolyzer of 0.082 (Exhibit 2, page 8). Having regard to Section 4 of the Road Transport Act 2013, Schedule 3, it would appear that Constable Shearer had the power to arrest the plaintiff without a warrant. It seems that the allegation of wrongful arrest is really an allegation of the commission of the tort of false imprisonment: see Ruddock v Taylor (2005) 222 CLR 612.
Having regard to Sections 3-5 of Schedule 3 of the Road Transport Act, Constable Shearer was given the power to arrest the plaintiff in the present case. In Ruddock v Taylor Kirby J stated as follows at paragraph 140:

“[140] Throughout the common law world, the conclusion consistently reached by courts addressing this question is that, in the absence of statutory provisions that clearly afford an immunity or defence to the administrator, the result must favour the individual whose rights have been violated. Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions.
[141] The heavy burden placed on the defendant, at least in contrast to some other torts, is explicable in two senses. First, the onus on the defendant to establish a lawful justification is mitigated to some extent by the fact that a plaintiff must prove that the defendant was a direct cause of the injury, as well as prove the existence of the requisite intent. Secondly, as discussed above, the principal function of the tort is to provide a remedy for "injury to liberty". It is not, as such, to signify fault on the part of the defendant. Damages are awarded to vindicate personal liberty, rather than as compensation for loss per se.”

Counsel for the plaintiff submitted as follows:

The plaintiff accepts the lawfulness of her arrest (submissions paragraph 45);

An issue arises as to whether, accepting the lawfulness of her arrest, the plaintiff was, at any stage, detained in respect of the alleged offences of resisting Senior Constable Melide and/or assaulting Senior Constable Melide;

If so, whether it was lawful (submissions paragraph 46); and

There is an issue whether there is sufficient evidence to establish, to the requisite standard, that the plaintiff was detained in respect of those offences.

I have some difficulty with this submission. It seems that the plaintiff was arrested for the PCA offence and detained for that offence. It seems artificial to suggest that the plaintiff was also later and separately detained for the alleged resisting police and assault. However, if I am wrong in relation to this view, I proceed to consider this aspect of the plaintiff’s case.
Having regard to the findings of fact set out above, in my opinion Constable Shearer was justified in arresting the plaintiff and thereby intentionally interfering with her liberty. The power of arrest was given statutorily in relation to the offence of providing a breath test with the requisite concentration of alcohol. On Constable Shearer’s evidence, which I accept, the plaintiff was yelling, was swearing and was belligerent. The plaintiff’s attitude and conduct permitted handcuffs to be used.
Having regard to my factual findings above in relation to the plaintiff resisting and kicking Senior Constable Melide I find that the defendant has discharged the onus, to the Briginshaw standard, that any detention for the other two alleged acts was also lawful.
However, I accept the submissions of counsel for the defendant that there is no evidence the plaintiff was arrested and detained for the other two alleged offences:

No witness gave evidence that either police officer involved purported to arrest the plaintiff for either or both these two alleged offences; and

Nothing was said to the plaintiff by either Senior Constable Melide or Constable Shearer to indicate the plaintiff was arrested for either or both of these two alleged offences.

In my opinion the allegation of the torts of wrongful arrest and false imprisonment should be dismissed. The evidence shows that the plaintiff was released as soon as the further breath test was conducted at St Marys Police Station.

Assault

Following the arrest of the plaintiff, the plaintiff was placed in handcuffs. Later the arms of the plaintiff were held by Constable Shearer and Senior Constable Melide and the plaintiff was placed in a left wrist lock by Senior Constable Melide. The question in the present case is whether the police officers used such force as is reasonably necessary to exercise their functions within Section 230 of LEPRA and thus are able lawfully to justify their actions.
The Court accepts the submission by counsel for the plaintiff that although it is pleaded as an assault, the actions of Senior Constable Melide are more properly categorised as a battery (submissions paragraphs 30-31).
In Woodley v Boyd [2001] NSWCA 35 at [37], Heydon JA stated as follows:

“[37]According to some writers, at common law, which applies in New South Wales, a person effecting an arrest may use whatever force is "reasonable" in the circumstances (Archbold: Criminal Pleading Evidence and Practice 2000 para19-39) or "reasonably necessary" (Wiltshire v Barrett [1966] 1 QB 312 at 326 and 331). "Thus if the arrestee offered resistance, the arrestor could increase his force in proportion to the force of that resistance": R W Harding, The Law of Arrest in Australia (eds Duncan Chappell and Paul Wilson) The Australian Criminal Justice System (2nd ed, Butterworths, 1977) page 254. A more elaborate test has been propounded in the context of whether the killing of a felon in the course of committing a felony is a justifiable homicide, or manslaughter, or murder. It was put thus by the Full Court in R v Turner [1962] VR 30 at 36:
"When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (ie the commission of a felony or the escape of the felon)."

It may perhaps be questioned whether the tests stated apply where the arresting party causes injury to the arrested party, as distinct from death. However, for present purposes it is convenient to assume, as counsel for both the plaintiff and the defendants did, that R v Turner states the law in that context as well. In evaluating what is reasonable, necessary or reasonably necessary the duties of police officers must be remembered. In Lindley v Rutter [1981] QB 128 at 134 Donaldson LJ said:
"It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case."

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."”

In State of New South Wales v McMaster [2015] NSWCA 228, Beazley P (with whom McColl and Meagher JJA agreed) stated as follows at [32]-[38]:

“[32]This submission rested on a formulation of the duties, powers and functions of police officers which, in the State’s contention, in summary, are as follows:
(1) Police officers in New South Wales have all of the “duties and powers of a constable at common law, and also any other duties and powers conferred on them by statute“: NSW v Tyszyk [2008] NSWCA 107 at [72]; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 4 (LEPRA).
(2) Officers have common law duties to investigate and prevent crime and to prevent or assist in preventing disturbances or breaches of the peace: Tyszyk at [84]–[85].
(3) Officers are entitled to use such force as is reasonably necessary to prevent a breach of the peace: Albert v Lavin [1982] AC 546; R (Laporte) v Chief Constable of Gloucestershire [2007] 2 AC 105; Poidevin v Semaan [2013] NSWCA 334 at [18]–[19].
(4) LEPRA, s 230 also provides statutory protection to a police officer exercising police functions. That section provides:
230 Use of force generally by police officers
It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

(5) In evaluating the reasonableness of the use of force, “the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight“: Woodley v Boyd [2001] NSWCA 35 at [37], a case that concerned the use of force in an arrest, per Heydon JA (Davies and Foster AJJA agreeing). See also McIntosh v Webster (1980) 43 FLR 112 at 123.
(6) A breach of the peace occurs when an act “either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done“: R v Howell [1982] QB 416 at 426. It is likely that this definition is not exhaustive: see Tyszyk at [87]–[98] per Campbell JA and the cases cited therein.

[33] Justin contended that there was no basis in the State’s assertion of incongruity if he could sue in battery but not in negligence, noting that such findings had been made in a number of cases. He cited NSW v Riley [2003] NSWCA 208 ; 57 NSWLR 496 and NSW v Koumdjiev [2005] NSWCA 247 ; 63 NSWLR 352, both cases concerning battery during an arrest; NSW v Ibbett [2006] HCA 57 ; 81 ALJR 427, a case concerning assault and trespass to land by a police officer; and NSW v Delly [2007] NSWCA 303 ; 70 NSWLR 125, a case concerning unlawful arrest. However, it should be noted that in none of these cases was the question of police protection from liability, in sense raised by ground 1 of the notice of appeal, considered.
[34] Justin submitted that, accepting the principles stated in Crowley and the cases on police powers, the State should, on the facts in this case, nonetheless be found liable. He submitted that:
[The State’s] submission on battery involves no more than a statement that reasonable force used in the context of a reasonable belief that harm is imminent is an available defence. That is not in dispute.

[35] Justin contended that “the unassailable findings of fact reveal no such reasonable belief was held by Constable Fanning“. He noted the distinctive facts of Crowley:
Mr Crowley was not just wielding a kendo stick. He had hit one member of the public in the abdomen [at [204]], could not be contained with capsicum spray [at [232]] and hit a police officer on a number of occasions including a heavy blow to the back [at [233]].

[36] In my opinion, this court should not accept that the actions of Constable Fanning were protected on the basis of, or by analogy to, the principles stated in Crowley. There are several reasons for this. First, Crowley was a case where the matter in issue was whether the police officers, who had responded to reports of erratic and potentially dangerous behaviour by the plaintiff, owed him a duty of care or whether their actions were protected by a common law operational immunity. The ACT Court of Appeal upheld the claim of immunity. In its detailed review of the case law, it observed, however, at [302], that it was difficult to “try and harmonise the authorities by reference to a single test“. It should be noted that the principle for which the State contended was initially framed in the alternative, as an immunity, but the language used in the amended notice of appeal was that of “lawful excuse“.
[37] Secondly, there are observations in the authorities in New South Wales, to which the ACT Court of Appeal referred, that a duty of care is not necessarily ousted by the existence of such an immunity: see, for example, Tyszyk per Campbell JA at [128]. See also New South Wales v Spearpoint, to which reference has been made above.
[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.”

The question whether the police officers in the present case used such force in relation to the plaintiff as was reasonably necessary to exercise the police function requires an objective test to be applied. As was stated by Heydon J in Woodley v Boyd at [37]:

“The matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight.”

In my opinion the factual findings which are made above lead to the conclusion that there was no unlawful battery in the present case. I am comfortably satisfied that the police officers only used such force as was reasonably necessary to exercise the police function in the circumstances.
Having regard to the swearing by the plaintiff and her attitude following her arrest, together with the resistance which I have found she gave to Senior Constable Melide and Constable Shearer, in my view the force used was reasonably necessary. The reapplication of a wrist lock by Senior Constable Melide once he had been kicked in the groin by the plaintiff was also reasonably necessary in order for him to regain control of the plaintiff.
The fracture of the plaintiff’s wrist is highly regrettable but, as I have found above, it probably occurred in the course of the fall of Senior Constable Melide, Constable Shearer and the plaintiff to the ground and was accidental.
In my view there is no basis for a finding of unlawful assault or battery in the present circumstances.

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].

The charges in relation to resisting arrest and assaulting police in the execution of their duty satisfied the first two elements in A v New South Wales as they were criminal proceedings and were terminated in favour of the plaintiff. However, having regard to my factual findings set out above that the resisting and kick occurred, I find that Constable Shearer as the informant did not initiate or maintain the proceedings acting maliciously and that she acted at all times with reasonable and probable cause.
Counsel for the plaintiff submitted that Senior Constable Melide should also be regarded as “maintaining the proceedings” even though he was not the informant as he was essentially the complainant, relying on Young v State of New South Wales (No 2) [2013] NSWSC 330 at [140]-[142]. It was argued in essence that Senior Constable Melide was a prosecutor as his evidence of the kick was relied upon to justify the assault police charge.
The evidence shows that the assault police charge related to an assault on Senior Constable Melide (Exhibit 2, page 48).

Counsel for the defendant submits that Constable Shearer was the informant who was prosecuting the proceedings and Senior Constable Melide was only a witness not a prosecutor.
I accept in accordance with the reasoning of Adamson J in Young that Senior Constable Melide should be regarded as “maintaining” the proceedings on the basis of his evidence of the kick as reflected in his statement. The kick appears to have been the basis for the assault police charge.
However, as I have found that the kick occurred I find that Senior Constable Melide did not initiate or maintain the proceedings maliciously.
Accordingly, I find that the elements in an action for damages for malicious prosecution have not been satisfied in the present case.
Therefore, in my view, all of the claims by the plaintiff against the defendant should be dismissed.

Assessment of damages

I now turn to consider an assessment of damages in the event that I am wrong in my factual conclusions and in relation to whether the torts alleged have been established. The plaintiff claims general, special, aggravated and exemplary damages.

Aggravated and exemplary damages: particulars and principles

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 relied upon for aggravated and/or special compensatory damages are set out in paragraph 39 of the Statement of Claim as follows:

“(a)   At all material times, in the circumstances pleaded in the preceding paragraphs, Shearer knowingly acted unlawfully in arresting, imprisoning and prosecuting the plaintiff;
(b)   At all material times, in the circumstances pleaded in the preceding paragraphs, Melide knowingly acted unlawfully in assaulting, arresting, imprisoning and prosecuting the plaintiff;
(c)   Each of Shearer and Melide knowingly gave false evidence at the plaintiff’s trial before Correy LCM, as to their own and the plaintiff’s conduct;
(d)   Shearer and Melide gave directly conflicting evidence before Correy LCM such that the evidence of one or of both of Shearer and Melide must knowingly have been untruthful;
(e)   The plaintiff repeats paragraphs 33(a) to (i) and paragraphs 34(a) to (f) above [these relate to malicious prosecution];
(f)    By reason of the unlawful conduct of Shearer and Melide, the plaintiff was subjected to physical pain and injury, shock, anxiety, stress, humiliation and economic loss (including, but not limited to, the plaintiff’s legal costs of the proceedings before Correy LCM).”

Particulars of exemplary damages sought are set out in paragraph 40 of the Statement of Claim:

“(a)   At all material times, in the circumstances pleaded in the preceding paragraphs, Shearer knowingly acted unlawfully in arresting, imprisoning and prosecuting the plaintiff;
(b)   At all material times, in the circumstances pleaded in the preceding paragraphs, Melide knowingly acted unlawfully in assaulting, arresting, imprisoning and prosecuting the plaintiff;
(c)   Each of Shearer and Melide knowingly gave false evidence at the plaintiff’s trial before Correy LCM, as to their own and the plaintiff’s conduct;
(d)   Shearer and Melide gave directly conflicting evidence before Correy LCM such that the evidence of one or of both of Shearer and Melide must knowingly have been untruthful;
(e)   The plaintiff repeats paragraphs 33(a) to (i) and paragraphs 34(a) to (f) above;
(f)   By reason of the unlawful conduct of Shearer and Melide, the plaintiff was subjected to physical pain and injury, shock, anxiety, stress, humiliation and economic loss (including, but not limited to, the plaintiff’s legal costs of the proceedings before Correy LCM).”

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

I approach the assessment of damages on the basis that I am wrong in my finding that Senior Constable Melide and Constable Shearer used such force as was reasonably necessary in exercising their powers of arrest and detention in relation to the plaintiff. In other words, I approach the matter on the basis that the finding was that more force than was reasonably necessary was used. I also approach the question of damages on the basis that the case of the plaintiff is accepted that her wrist was fractured by Senior Constable Melide applying excessive force whilst the plaintiff and Senior Constable Melide were standing and before the plaintiff fell on the ground (whether with Senior Constable Melide and Constable Shearer or was forced to the ground by Senior Constable Melide).
The evidence is clear that the plaintiff had a fractured left wrist. The plaintiff gave evidence that she had not received any further treatment on her left arm or her left wrist once the cast was removed (T 24.31).
Accordingly, there is no evidence of continuing disabilities arising out of the fracturing of the wrist.
In relation to aggravated damages I take into account the following matters in the event that the plaintiff’s case is accepted that she did not resist arrest and did not assault either police officer:

On the plaintiff’s case she was at all times reasonably respectful and compliant;

On the plaintiff’s case, at no time did she swear,

On the plaintiff’s case, at no time did she resist arrest or assault Senior Constable Melide;

On the plaintiff’s case she went willingly with Senior Constable Melide and Constable Shearer;

On the plaintiff’s case she was handcuffed at the time;

On the plaintiff’s case she informed Senior Constable Melide that she was in pain and that she would comply with anything he said;

On the plaintiff’s case Senior Constable Melide was over 100kg at the time whereas the plaintiff is of slight build, only 5 foot 3 inches and was only 54kg at the time;

On the plaintiff’s case she was unnecessarily thrown to the ground by Senior Constable Melide and her head was held onto the ground by Constable Shearer;

On the plaintiff’s case her right leg was placed in a painful leg lock by Senior Constable Melide without cause;

On the plaintiff’s case she would have been subjected to a terrifying and humiliating experience;

On the plaintiff’s case Mr Winchester had pleaded with Senior Constable Melide to stop hurting the plaintiff.

In my opinion, taking into account all the circumstances, an amount of $30,000 would be appropriate for general and aggravated damages for the fractured wrist and the battery.
In relation to the tort of false imprisonment, as the plaintiff had already been validly arrested for the PCA offence, I would not allow any additional sum. In my view, there is no evidence that the plaintiff was detained for the other two alleged offences.
In relation to the tort of malicious prosecution, any award of damages would need to take account of the following:

That Senior Constable Melide and Constable Shearer (if I am wrong) concocted their story in order to explain away the fractured wrist and to support the criminal charges for resist an officer and assault police;

The charges led to criminal proceedings against the plaintiff over several days;

The plaintiff was (on the hypothesis) subject to completely unjustified criminal charges and placed in a situation where she had to justify her actions in the face of wrong evidence over a lengthy period of time.

The amount of general and aggravated damages which should be awarded for the tort of malicious prosecution is one of impression. In my opinion, an award of $40,000 on the facts of this case would be appropriate.

Special damages

As indicated above the plaintiff was charged with three offences: driving with a low range PCA, resisting an officer while in the execution of his or her duty and assaulting an officer while in the execution of his or her duty: Exhibit C.
It was not in dispute in the proceedings that the plaintiff was convicted of the first offence but was acquitted of the last two offences in the Local Court.
It is difficult to see how the plaintiff could have disputed the first offence having regard to the Certificate issued by Senior Constable Kennedy that the plaintiff had a concentration of alcohol in her breath as determined by the breath analysing instrument of 0.064 grams of alcohol in 210 litres of breath: Exhibit 2, page 29. The basis for resisting the charge is not made clear in the evidence. Counsel for the plaintiff indicated in submissions that the proceedings concerning the PCA offence were defended in the Local Court by the plaintiff on the basis that the arrest was unlawful with the result that the certificate of Senior Constable Kennedy (Exhibit 2, page 29) was unlawfully obtained.
The real issue related to the last two charges. If, contrary to my findings above, it is determined that I was erroneous in finding that the plaintiff did resist arrest and did assault Senior Constable Melide, then the plaintiff claims the legal costs involved in the Local Court proceedings. Exhibit E consists of the amended tax invoice forwarded by the plaintiff’s solicitors Coode & Correy to the plaintiff dated 22 April 2016 in the sum of $61,667.72. Exhibit F is a tax invoice for fees said to be owing to Mr M J Gollan of counsel of $28,820.00. Exhibit E, being the solicitor’s amended tax invoice, purports to include as disbursements barristers fees owing to Mr Gollan from 7 March 2014 to 21 January 2015. This is the same period as appears in Mr Gollan’s tax invoice dated 10 February 2015 which is Exhibit F. The amounts claimed are the same. Accordingly the amount claimed by the plaintiff is $61,667.72.
Some of these fees would undoubtedly have been incurred in relation to the plaintiff pleading not guilty to the PCA offence of which she was found guilty. Counsel for the defendant submits that any amount awarded should represent only half of the fees claimed.
If it is found on the civil standard that the plaintiff did not resist arrest and did not assault Senior Constable Melide then the plaintiff was justified in incurring the legal expenses in defending the charges.
Doing the best I can on the limited evidence I would allow the plaintiff $40,000 for special damages relating to the legal fees and disbursements.

Exemplary damages

In relation to exemplary damages, if the plaintiff’s case is accepted then there was an agreement between at the least Senior Constable Melide and Constable Shearer to concoct a story in relation to the plaintiff’s conduct, to record it in their police notebooks and the COPS computer system and to continue the concocted story by placing charges against the plaintiff for resist police and assault police. This is, if the plaintiff’s case is accepted, very serious conduct on behalf of the police officers. It is unnecessary to find whether other police officers were also involved in continuing the concocted story but there would likely also need to be findings that the plaintiff resisting arrest was falsely recorded by Senior Constable Connolly and Constable Larabina.
In my view, if I am incorrect in my findings and the story was concocted and continued over the years from 2013 to the Local Court proceedings by Senior Constable Melide and Constable Shearer then such conduct clearly amounts to high-handed, outrageous and contumelious conduct by the police officers. In those circumstances exemplary damages would be warranted and I would award the sum of $40,000.
The total amount of damages referred to above is $150,000.
In the event that I have erred in relation to liability issues the plaintiff would also be entitled to interest. See the discussion in relation to interest by Gleeson JA in State of NSW v Abed [2014] NSWCA 419 at [238]-[242].

Disposition

For the above reasons I make the following orders:

There be judgment for the defendant.

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

The exhibits may be returned after 28 days.

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Decision last updated: 29 September 2016

Medium Neutral Citation:	Reilly v State of New South Wales [2016] NSWDC 234
Hearing dates:	1 August 2016 – 5 August 2016, 31 August 2016
Date of orders:	27 September 2016
Decision date:	27 September 2016
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) There be judgment for the defendant. (2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed. (3) The exhibits may be returned after 28 days.
Catchwords:	Torts – assault – false arrest – false imprisonment – malicious prosecution – lawfulness of police actions
Legislation Cited:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Police Act 1990 (NSW) Road Transport Act 2013 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	A v New South Wales (2007) 230 CLR 500 Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 Danckert v Tonkin [2015] NSWSC 1570 Makri v State of New South Wales [2015] NSWDC 131 Ruddock v Taylor (2005) 222 CLR 612 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Koumdjiev (2005) 63 NSWLR 353 State of New South Wales v McMaster [2015] NSWCA 228 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 Young v State of New South Wales (No 2) [2013] NSWSC 330
Category:	Principal judgment
Parties:	Janine Frances Reilly (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: A Coombes (Plaintiff) N Newton (Defendant) Solicitors: Coode & Corry Solicitors (Plaintiff) McCabes Lawyers (Defendant)
File Number(s):	2015/00199618