Reznytska v State of New South Wales

[2012] NSWCA 103

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Reznytska v State of New South Wales [2012] NSWCA 103

Hearing dates:

13 March 2012

Decision date:

20 April 2012

Before:

Young JA at [1]; Meagher JA at [46]

Decision:

(1) Leave to appeal refused with costs.

(2) Appeal instituted without leave dismissed as incompetent.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

LEAVE TO APPEAL- verdict for the defendant in District Court based on findings of fact adverse to applicant- not established that more than $100,000 at issue- leave to appeal refused- no question of principle.

Legislation Cited:

Law Enforcement (Powers and Responsibilities) Act 2002, s 230
Uniform Civil Procedure Rules 2005, r 51.22

Category:

Interlocutory applications

Parties:

Mina Reznytska (Applicant)
State of New South Wales (Respondent)

Representation:

Counsel:

Applicant in person
M Hutchings (Respondent)
Solicitors:

Applicant in person
I V Knight, State Crown Solicitor (Respondent)

File Number(s):

CA 2011/400151

 Decision under appeal 

Date of Decision:

2011-05-24 00:00:00

Before:

Finnane DCJ

File Number(s):

2009/338284

Judgment

1. YOUNG JA: This is an application for leave to appeal against orders of Finnane DCJ who found for the defendant in proceedings brought by the appellant against the State for alleged assault and battery by the police.

1. The basal facts are simple. On 27 January 2008 at about 9:30am, the applicant was being driven by her son in a motor car on Parramatta Road, Summer Hill. (The son was also an unsuccessful plaintiff in the District Court). The car was stopped for a random breath test. A policeman asked to see his licence. The son took umbrage at this request. An argument developed between a member of the police force and the son. This resulted in the son finding himself on the grass footpath in handcuffs.

1. The applicant's case was that she was forcibly removed from the front of the car, the police holding and twisting her arms and pushing her towards the rear of the car. The son gave evidence before the primary judge that the police used violence towards his mother for 10-15 minutes and that when the son complained about an attack on an old woman, a police constable told him, "We're police officers, we can do anything".

1. The police version was that the applicant got out of the car herself and was then walking towards where her son was in an altercation with police and that some police officers restrained her from approaching closer to that scene. One of the police admitted that he had the applicant in an arm lock which may have caused her pain.

1. In due course, the police took the son's licence from his wallet (police version) or from off the ground where it had fallen from his left hand (son's version) and a check found nothing adverse. He was not driving under the influence of alcohol or drugs.

1. The son was taken in custody to Burwood Police Station. The applicant went to Ashfield Police Station. The applicant's evidence was that when the police found that she could not drive her son's car, they ordered her to get in the police car and she reluctantly complied because she thought she was being driven to a prison. The police version is that she was driven to Ashfield Police Station by Constable Murphy as a matter of courtesy and was never under arrest.

1. No charges were ever preferred against the applicant.

1. The primary judge heard the applicant's claim and the son's claim together and seems to have taken evidence given as being evidence in both proceedings.

1. Although the son's proceedings were dismissed, there is no appeal in his case.

1. Seven police officers on their oath denied the version given by the applicant and her son and the judge accepted their evidence rather than that of the applicant and her son.

1. We heard the application on 13 March 2012, Mr M Hutchings of counsel appearing for the State.

1. The applicant is a Russian lady: she appeared before us in person. As she does not speak English, we permitted her son, who is not legally trained, to speak for her. He also tendered written submissions.

1. We were handicapped at the hearing as we did not have a copy of the transcript of the trial before the primary judge. Mr Hutchings in due course provided that. Unfortunately, as a result of an administrative error, there was a delay in that transcript reaching my chambers, which has caused these reasons to be delivered later than originally planned.

1. As is most often the case with litigants in person, it was a little difficult to glean the exact grounds of the proposed appeal. However the following appears at the foot of typed page 18 of the applicant's submissions:

the trial judge took the Police words, where it differs from the Plaintiff's evidence; failed to consider the material facts from the place of the incident; failed to consider the law, case law from the superior court and apply it to the conduct of the Police officers; failed to consider that unsupported Police "evidence" does not represent admissible evidence at all...

Other portions of those submissions allege that the primary judge did not adequately or at all consider the applicant's injuries and the medical evidence.

1. The gravamen of the above is that the primary judge's judgment is said to be deficient in the reasons for its consideration of the evidence and assessment of the credibility of the witnesses.

1. Apart from showing an arguable case that what is written in the previous paragraph is correct, the applicant also needs to show that more than $100,000 is at issue.

1. In his written submissions, Mr Hutchings puts that the primary judge's reasons were commendably brief, but adequately and properly set out his reasoning process. As to medical evidence, the primary judge considered the material presented and ruled that "no medical evidence of any satisfactory nature has been presented to establish injury."

1. Mr Hutchings' submissions included a comment that reference to the transcript would bear out the accuracy of his submissions. As we did not have the transcript, we had to reserve to examine it.

1. I have now read the transcript carefully. The evidence occupied three hearing days, 16,17 and 18 March 2011. The primary judge gave his verdict on 24 May 2011.

1. The trial was a difficult one. Not only was the judge trying two cases at once, the plaintiffs were appearing as litigants in person. One of them did not speak English. The other kept interrupting the proceedings when his mother was giving evidence.

1. The son also appeared to be a most volatile person though I must say that he conducted the case before this Court calmly and decorously. Unfortunately he approached the District Court hearing as if it was a police tribunal likely to find against him and his mother. This feeling was contributed to by the fact that the judge was sitting in a courtroom usually the venue for criminal cases and the son believed that the judge was principally a criminal law judge.

1. This feeling was almost certainly baseless. Indeed, early on the primary judge noted that he was surprised how a person who refused to produce his driver's licence ended up arrested and in handcuffs. It may be that the feeling has to do with adverse experiences by the plaintiffs with overseas authorities.

1. The difficulties with the trial included the fact that the plaintiffs were not capable of addressing the real issues or analysing the evidence. However, I do not have a transcript of the addresses below.

1. The difficulties were exacerbated by the fact that everybody, including the primary judge (vide [11] of his reasons), viewed the son as the "main plaintiff" and the applicant's case something that followed on from that case, as opposed to considering the applicant's case on a stand alone basis.

1. The applicant's case was relatively simple. She gave evidence that she was sitting in the front passenger seat of the car. Her son got out of the driver's seat to go to the boot to retrieve his wallet in which was his driver's licence. Police started searching the car. Three policemen, "one was with a beard, one was not too tall, but sort of a thick set man, one was tall and thin" dragged her out of the car and assaulted her causing bruising. One would have thought that such a description would have provided a fertile source for cross examination to one side or the other, but there was none.

1. The applicant said that they pulled her out of the car by the left upper and lower arm, and when they got her out of the car they twisted her right wrist and a female officer came over and snapped the applicant's knuckles.

1. She suffered bruising to the leg which she believes occurred when someone bumped her leg as she was being pulled from the vehicle.

1. A more senior policeman told the other police to release the applicant. She then approached Constable Murphy and asked him to call an ambulance which he did.

1. The judge made it clear that he considered the evidence of the son unreliable. He also held that the unreliability of the son corrupted the applicant's evidence as it was plain that the affidavit which she had filed in the proceedings was at least in part material provided by the son.

1. It would have been difficult for any judge to find the applicant's case proven on the balance of probabilities when he considered the plaintiffs' evidence unreliable and that evidence was opposed to the sworn evidence of seven police officers.

1. However, I was disturbed by three matters. First, on the evidence of at least two of the police officers, the police did use force against the applicant, she was pushed in the chest, her arms were restrained and she was put in a painful arm lock. The primary judge does not refer to this.

1. There is an allied point that disturbs me, I think I should mention it even though it is irrelevant as neither side said anything about it at the trial. It seems to be assumed that the police have a right to stop a mother going to the aid of her son who she may consider is being put to the ground and handcuffed by police during an argument over non production of a driver's licence. Section 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 only goes so far and only enables police to use such force as is reasonably necessary. The primary judge's finding puts an end to any further debate on this matter.

1. Secondly, although the primary judge says at [59] that there was no satisfactory medical evidence that the applicant suffered physical injury, in fact Exhibit D showed bruising not only to the arms but also to the applicant's left lower leg. A medical report tendered without objection was to the same end. There was no denial of the fact of this observation. Constable Davis merely said that the bruising must have occurred on some other occasion. This was unlikely as an ambulance officer who attended the scene noted the bruising to the leg (Exhibit G). Indeed, Constable Davis' view was never put to the applicant.

1. The significance of this evidence was not considered by the primary judge. It is difficult to find that it is consistent with the police version of the events.

1. Thirdly, the reasons for judgment are remarkably light on the reasons why the judge was so impressed with the police witnesses and so little impressed with the evidence of the plaintiffs. It was clear that the plaintiffs, particularly the son were volatile people, but experienced judges are used to having to consider the evidence of such witnesses and it would have been useful for the judge to consider the various versions of the actual incident and to have analysed the discrepancies.

1. There were clear discrepancies in the police evidence. I should note at once that this is to be expected even with the most honest witnesses. However, discrepancies are significant. There were divergent views as to whether the applicant was sitting in the front passenger seat as deposed to by the majority of the witnesses, or in the rear as one police officer said. There was a difference in the evidence as to the colour of the plaintiffs' car.

1. The evidence would need to be considered in the light of the fact that the string of police officers were in situ as groups of motorists were directed to pull over for random breath testing. Initially almost every officer would be concentrating on the driver who stopped adjacent to him or her. When the cars, except the plaintiffs' were sent on their way, the police attention was focused on the son. The police evidence that they first became aware of the applicant when she was outside the car is inherently credible. However, on the other hand, the applicant's case is strengthened by the inference that, as there was no denial that the police were searching the car (they must have suspected that because of his attitude the son had something to hide), they would need the applicant out of the car in order to search it properly. There was no cross examination on this point.

1. There is no doubt that trial judges must give adequate reasons for their findings. As I have said, the reasons given by the learned primary judge are fairly light on. However, it is clear that he discounted or did not accept the plaintiffs' evidence because of the way the son presented the evidence and the clear fact that he had greatly influenced the applicant's evidence. He accepted the police evidence, but in the light of the fact that there was little challenge to it in cross examination, there was little requirement for deep analysis of it.

1. In the circumstances, I consider that the judge's reasons were adequate.

1. As to the amount involved in any appeal, the statement of claim merely claimed the ceiling amount of the District Court's jurisdiction. It sought compensatory damages including out of pocket expenses which were said to be particularised later (they never were) plus exemplary damages.

1. A person seeking leave to appeal must show (the Rules say by affidavit) that there are realistic prospects of a successful appeal succeeding in benefiting the applicant by $100,000. That evidence is not here.

1. Accordingly, although there are some disturbing features about this case, the probabilities are that on the evidence before the District Court the judge's decision was correct and that the applicant has not demonstrated that the appeal involves more than $100,000.

1. I propose that we refuse leave to appeal with costs.

1. Originally the applicant filed an actual notice of appeal. When this was challenged by motion, the application for leave was made. For completeness the appeal instituted by that notice should be dismissed as incompetent.

1. Accordingly I would propose:

1. Leave to appeal refused with costs.

2. Appeal instituted without leave dismissed as incompetent.

1. MEAGHER JA: By her summons filed on 12 December 2011 the applicant, Mina Reznytska, seeks leave to appeal from the decision of Finnane DCJ given on 24 May 2011. She also resists the respondent's application that her earlier Notice of Appeal filed on 15 June 2011 be dismissed as incompetent.

1. I agree with Young JA, for the reasons he gives and those which follow, that the application for leave to appeal should be dismissed with costs and that the Notice of Appeal should be dismissed as incompetent.

1. The applicant did not, as required by UCPR r 51.22, file with the Notice of Appeal an affidavit setting out the facts relied upon to show that the appeal involves a claim to damages in an amount of $100,000 or more. Following a direction made by the Registrar on 10 August 2011, an affidavit sworn on 25 October 2011 was filed. That affidavit asserted that the amount sought "could be considerable and well above $100,000". It did not disclose any facts which indicate that the probable value of her claim before Finnane DCJ exceeds $100,000. Nor did the evidence before Finnane DCJ enable that conclusion to be drawn. On the applicant's case she was dragged from her son's vehicle and physically assaulted before being driven to Ashfield Police Station. As Young JA notes at [33], the evidence tendered before Finnane DCJ suggested that she had suffered bruising to her upper arms and lower left leg as a result of being restrained. There was no evidence of any significant psychological injury. This evidence does not support a conclusion that any award of damages would probably exceed $100,000. For these reasons the appeal must be dismissed as incompetent.

1. The principal challenge made to the decision of Finnane DCJ is to his findings of fact and failure to make findings in accordance with the applicant's version of events. As Young JA notes, her case was that she was forcibly dragged from her son's car by three policemen and then held and subjected to unnecessary and unreasonable physical abuse by those three policemen and a policewoman. That abuse included the bending and twisting of her fingers and wrists, the snapping of her knuckles, and the police "occasionally" kicking her with their boots. That version was contradicted by the evidence of the four officers as well as some of the other police officers present. Their version of events was that the applicant got out of the passenger door and walked towards the rear of the car where her son was on the ground involved in a violent altercation with the police who were seeking to restrain him; that she was upset and distressed at what she was seeing and was intent on helping her son; that they sought to restrain her from doing so by standing in front of her and then holding her by the arms and wrists; that this continued for a period of three minutes or so; and that eventually, and after her son had been placed in a police vehicle, the applicant calmed down and was able to be released.

1. Finnane DCJ accepted the evidence of the police officers as "credible and reliable" and found that the officers had "used no more force than they needed to to restrain her from interfering with an arrest". The effect of that finding was to provide the police officers with a defence by reason of s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) which was pleaded by paragraph 11 of the respondent's defence.

1. Although there was evidence establishing that the applicant had sustained bruises in the course of her being restrained, those injuries are consistent with the evidence of at least two of the police officers that they had to use some force to restrain the applicant. Those injuries were not inconsistent with the officers having used no more force than was reasonably necessary to complete the arrest of the applicant's son. The applicant's

prospects of successfully overturning the finding that the officers did not use excessive force are not sufficient to warrant the grant of leave to appeal.

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Decision last updated: 20 April 2012