Rook v State of New South Wales (No 3) - [2015] NSWDC 154

District Court

New South Wales

Medium Neutral Citation: Rook v State of New South Wales (No 3) [2015] NSWDC 154
Hearing dates: 18-22 May 2015; 25-29 May 2014; 1-4 June 2015; 10 June 2015
Date of orders: 10 June 2015
Decision date: 10 June 2015
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Verdict and judgment for the plaintiff against the defendant for $18,590

Catchwords:
TORTS – Police torts claims – Assault and battery – Detinue – False imprisonment – Malicious prosecution – Elements of the torts – Defendant required to justify arrest of the plaintiff – Arrest not justified under PCA legislation or LEPRA 2005

TORTS – Malicious prosecution – Elements of malice and absence of reasonable and probable cause – Onus on plaintiff – Prosecutor acted reasonably – Prosecutor’s case arguable

WORDS AND PHRASES – “Home” – “Place of abode” – “Usual place of abode” – Road Transport (Safety and Traffic Management) Act 1999 s 17(d); cf Road Transport Act 2013 Sch 3 Pt 2 Div 1 cl 2(e)

WORDS AND PHRASES – Insulting language – “fag”, “faggot” – Whether American usage now prevalent

DAMAGES – Unintentional torts – Interaction with Civil Liability Act 2002 – Whether plaintiff entitled to aggravated and/or exemplary damages – Comparable verdicts – Special damages – Costs of unsuccessful prosecution may be awarded in a claim for false imprisonment
DEFENCES – Civil Liability Act 2002 – s 54 – Ex turpi cause non oritur actio
Legislation Cited: Civil Liability Act 2002
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002
Law Reform (Vicarious Liability) Act 1983
Motor Traffic Act 1909
Road Transport Act 2013
Road Transport Legislation Amendment (Drug Testing) Act, Number 79 of 2006
Road Transport (Safety and Traffic Management) Act 1999
Torts (Interference with Goods) Act 1977 (UK)
Cases Cited: A v New South Wales [2007] HCA 10; (2007) 230 CLR 500
Beckett v New South Wales [2013] HCA 17
Cameron v James [1945] VLR 113
Clavel v Savage [2013] NSWSC 775
Director of Public Prosecutions (NSW) v Linnett [2006] NSWSC 1086; (2006) 68 NSWLR 85
Director of Public Prosecutions v Skewes [2002] NSWSC 1008
Fernando v Commonwealth of Australia [2010] FCA 753; (2010) 271 ALR 521
Flight Centre Ltd v Louw [2011] NSWSC 132; (2010) 78 NSWLR 656
Haberhauer v Simek (1991) 9 Petty Sessions Review 4235
Hage Ali v State of New South Wales [2009] NSWDC 266
Hall v Coughlan (1970) 91 WN (NSW) 886
Hamod v State of New South Wales [2011] NSWCA 375
Hunter Area Health Service and Another v Presland [2005] NSWCA 33
Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268
Jindi v State of New South Wales (unreported, 28 March 2014, Sorby DCJ, 2013/74966)
Merchant v The Queen (1971) 126 CLR 414
Pringle v Everingham [2006] NSWCA 195
R v Clampett (1984) 11 A Crim R 103
R v Vatner (1992) 29 NSWLR 311
Saunders v Edwards [1987] 1 WLR 1116
State of New South Wales v Corby [2010] NSWCA 27; (2009) 76 NSWLR 439
New South Wales v Delly [2007] NSWCA 303
State of NSW v Hathaway [2010] NSWCA 184
State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168
State of New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353
New South Wales v Riley [2003] NSWCA 201
State of New South Wales v Williamson [2012] HCA 57; (2012) 248 CLR 417
Tilse v State of New South Wales [2013] NSWDC 265
Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249
Texts Cited: Australian National Dictionary (Oxford University Press, 1988)
Bullen & Leake, Precedents of Pleading (13th)
Shorter Oxford Dictionary, 5th Ed
Category: Principal judgment
Parties: David Duncan Rook (Plaintiff)
State of New South Wales (Defendant)
Representation:
Counsel:
Mr P Braham SC (Plaintiff)
Mr L Robison (Plaintiff)
Mr M Hutchings (Defendant)
Solicitors:
Marsdens Law Group (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s): 2014/158703
Publication restriction: No. Certain names anonymised.

Judgment

HIS HONOUR: This is an action for damages for what can be shortly described as “police tort claims”, a term of art taken from the Law Reform (Vicarious Liability) Act 1983. The State of New South Wales admits that it is vicariously liable for the acts of the police officers nominated in the statement of claim. The statement of claim alleges four different torts. They are a false imprisonment, malicious prosecution, assault and battery, and detinue. As the case was opened by learned counsel for the plaintiff, Mr Peter Braham SC, who appeared with Mr Lachlan Robison, the principal torts relied upon by the plaintiff are false imprisonment and malicious prosecution.
The claim in respect of the tort of detinue was informally abandoned during evidence, as the plaintiff did not give any evidence sufficient to ground his entitlement to claim for that tort, and that tort was formally abandoned during the oral submissions. The tort of assault and battery was, in the grand scheme of things, if any battery actually occurred, only minor or trivial. The present action results from the interaction of the plaintiff with officers of the Rose Bay Local Area Command in the early hours of Sunday, 5 June 2011.

Background

The plaintiff, Mr David Duncan Rook, was born on 11 November 1970. At the time of the matters now in question he was aged 40 years. At the time of the matters now in question he was a project manager employed by Serco. He appears to have worked as a project manager both prior to the events now in question and, subsequently, for another company. The plaintiff is clearly an intelligent man and relatively articulate. However, he does suffer from a stammer.
At all relevant times the plaintiff was in a long term, committed, and intimate relationship with Mr John Tanner, to whom the plaintiff referred as his “partner”, a term which I dislike using as the word “partner” is a term of art in the law. If it be necessary for me to refer to the plaintiff’s relationship with Mr Tanner by something other than using Mr Tanner’s name, I shall refer to Mr Tanner as the plaintiff’s “life partner”.
At the time of matters now in question the plaintiff and Mr Tanner were living in Unit 2, 2B Victoria Road, Bellevue Hill. I shall have much more to say about those premises later in these reasons for judgment.
The plaintiff put himself forward as a man of prior good character. When asked whether he had any previous criminal record the plaintiff told me that he had none. He then made this voluntary statement: “Except for like a speeding fine. When I was 21 I had a speeding fine. It wasn’t a bad one. It was like 80 k in a 60 k zone.” I then pointed out to the plaintiff that paying a traffic infringement notice did not constitute the start of a criminal record. This was not a good start to the plaintiff’s evidence. Eventually the plaintiff’s traffic record was tendered. Initially it was marked for identification “2” and became eventually exhibit 10. On 26 November 1988 and also 23 December 1988 the plaintiff exceeded the speed limit by more than 30 kph. That led to the cancellation of his provisional driver’s licence on 28 January 1989. On 12 March 1991, when the plaintiff was aged 20, he exceeded the speed limit by more than 15 kph which was the subject of a further traffic infringement notice. On 15 July 2000 he exceeded the speed limit by more than 15 kph but not more than 30 kph for which a further traffic infringement notice issued. Again, his licence was suspended on 18 June 2001, because of fine defaults. On 14 August 2009 when the plaintiff was 38 years old, he exceeded the speed limit by more than 10 kph but by less than 20 kph. That matter went to court. He appeared before the Local Court at Mullumbimby on 17 December 2009 and was fined $197. That constitutes the imposition of a criminal record. The plaintiff’s recollection of his driving history was clearly inaccurate and his statement that he was a man of prior good character was somewhat gilded.

The plaintiff and Mr Tanner attend the Vivid Festival

In early June 2011 the Vivid Festival was taking place in Sydney. The plaintiff and Mr Tanner decided to visit two events on the evening of Saturday, 4 June 2011. They left home about 7.40pm. They drove to the Opera House and parked in the Opera House carpark. The first event that they were attending was a “show”, a performance by an international female singer, who could not be identified by Mr Rook. Mr Tanner was a “fan” of that singer and, hence, their going to her performance. It would appear that her show commenced about 8.30 and probably finished about 10.30. At the same venue at the Sydney Opera House there was a second event commencing at 11pm and finishing at 2am on the morning of Sunday, 5 June. That was a dance party which was identified by the plaintiff as the “House of DJs”. It appears to have been the presentation of various recordings by different disc jockeys.
Whilst at the Opera House the plaintiff and Mr Tanner consumed alcohol. The extent of the consumption of alcohol by the plaintiff and Mr Tanner is highly relevant because the consumption of alcohol can affect a person’s behaviour and can also interfere with and sometimes obliterate the memory of what the person did whilst the person was under the influence of alcohol. According to the plaintiff’s evidence in cross-examination, the plaintiff and Mr Tanner arrived early at the Opera House and had “a little bit of time to kill”. The plaintiff bought a glass of wine and Mr Tanner bought a beer. They also ate some potato wedges. That was at the Opera Bar. During the show involving the female singer each of the plaintiff and Mr Tanner had “about two drinks each” which Mr Rook believed were glasses of white wine. At the conclusion of the show the plaintiff and Mr Tanner returned to the Opera Bar and had a glass of red wine each.
During the dance party the plaintiff said that he had only one glass of red wine between 11pm and 12.45am. That would have been his fifth alcoholic drink that evening. The carpark at the Opera House shut at 1am. The plaintiff left the dance party to extract his vehicle from the Opera House carpark and to park it on Macquarie Street. Some time was involved in extracting his car from the carpark and parking it on Macquarie Street, because of a queue of vehicles seeking to leave the Opera House carpark prior to its closing.
The plaintiff then said that he returned to the dance party in order to re-join Mr Tanner. However, the plaintiff could not find Mr Tanner. He told me that he "searched throughout the entire club high and low" but was unable to find him. He decided that he had no choice but to remain at the dance party in the expectation that Mr Tanner would appear and join him. Last drinks were called at 1.30am. On 18 May 2015, the plaintiff said this:

"Well what happened, okay, so when I went back to get John I - they were calling last drinks. The bar shut at about 1.30 and, and so I went to go buy a drink and the guy, the guy said, 'Look, it's last drink,' so I actually got two glasses of red and what I thought we were going to do was have a glass each and just sit and watch the lights and, and I did drive home that way and I know there's breath testing all the time on New South Head Road, so I have one drink per hour and I was timing and pacing my drinks, so I bought two drinks and when I couldn't find John I became very despondent, I drank my drink and ended up leaving - I drank a bit of the other drink and then ended up leaving that so, it was probably getting towards seven drinks by the time - and then all of a sudden my phone rings and he's appeared again and, that's the chain [of] events."

The plaintiff said later that the last two glasses of red wine poured by the bar steward at the Opera House were fairly generous glasses of wine. On another day during cross-examination, the plaintiff maintained that the two glasses of wine that he bought whilst waiting for Mr Tanner to reappear at the Opera House venue during the dance party were both for Mr Tanner and when confronted with the evidence he gave on 18 May 2015, told me that his evidence given on the first day of the hearing was erroneous. On 30 November 2011, the plaintiff gave a statement to Inspector Gary Ford. When cross-examined about that, the plaintiff volunteered that he bought “two drinks for John” (T 191.07). Shortly thereafter, this evidence was given:

“HIS HONOUR
Q. You told me that you bought the two glasses of red wine when you returned the bar for John?
A. Correct, that's correct, your Honour.
Q. That's correct, is it?
A. Yes, yes.
Q. Transcript 68 commencing at line 9.
HUTCHINGS
[…]
Q. Since you were charged with offences on 5 June you have given great thought and consideration to the events of that night, haven't you?
A. Yes.
Q. Both preceding your charging and after your charging?
A. I've - I, I have thought about it, yes.
Q. You've given evidence in the Local Court about it?
A. Yes.
Q. You've been asked on a number of occasions what you drank on the night in the sense of what alcoholic beverage you drank on the night, correct?
A. Only a couple of times. I mean I was, I was - it's a matter of fact that I, I'd had too many drinks when I was breath tested so that's just a matter of fact.
Q. Indeed. In these proceedings I've asked you questions about how many alcoholic beverages you consumed on the night, haven't I?
A. Mm-hmm.
Q. You've done your best to answer those, haven't you?
A. Yes.
Q. You've told his Honour that - I asked you this question on 18 May, "Did you ever tell anyone that you'd consumed eight drinks on the night?" Do you remember me asking you that question?
A. Well I've, I've said when I added it all up, it was seven to eight drinks in total over five hours.
Q. Yes, but do you remember me asking you that question I just identified?
A. Asking me what? Can you please restate it?
HIS HONOUR
Q. On Monday.
A. On Monday, yeah.
HUTCHINGS
Q. You were sitting in that witness box and I asked you, "Did you ever tell anyone that you'd consumed eight drinks on the night?"
A. I've said time and time again when it has come up, the few times I discussed it, seven to eight drinks is what I've figured out that I drunk that night, seven to eight.
Q. I'm just asking you do you remember the question being asked of you on Monday?
A. I - I think I do, yes.
Q. What you said to his Honour on Monday was that when you went back to find John, the bar was calling last drinks.
A. Yes.
Q. Remember giving that evidence?
A. Yes, yes, yes.
Q. The bar was to shut at about 1.30. Do you remember giving that evidence?
A. Yes, it was - it was shutting at 1.30 but that was - it was calling last drinks around 1.20, yes.
Q. You've just told his Honour that at that point in time, you'd finished consuming alcohol for the night.
A. When I had parked the - when I went to go get the car, I was done drinking, and my plan was to not drink any more drinks, and when I came back and bought more drinks from the bar, they were for John, that's why I bought those drinks.
Q. That's your evidence now, isn't it?
A. Yes.
Q. You were not going to get another alcoholic beverage.
A. No. No, I wasn't. No, I wasn't.
Q. Because you'd gone and moved your car and you were done with alcohol for the night.
A. Because I'd been counting my drinks and I by that stage was - was at five, and five to six total, and I was done, I - I needed to sober up, eat some food and stop drinking for a while.
Q. So at that point you realised you needed to sober up.
A. Well, I was - I am aware of the drink driving rules and I also drove him through New South Head Road and there's almost always a breath testing unit on the side at Rushcutters Bay, so when I went out with John and we'd drink, I would count my drinks, I'm two in the first hour and then one every hour following.
Q. I just want to be very clear about this. After you drove your motor car out of the Sydney Opera House carpark and on to Macquarie Street, you formed the state of mind that you needed to sober up.
A. I - when I drove the car out, I thought I'd be very close to the limit and I needed to stop drinking, I thought I was at - at or under the limit, and so I parked the car and my plan was to sober up for an hour or two, yes, yes, absolutely.
Q. Why did you tell his Honour on Monday that you went back to the bar when they called last drinks, you bought two glasses of wine, you intended to consume one yourself, have John consume the other, while you looked at the lights?
A. No. No. Well, John drinks a lot and I knew that he'd want more alcohol, and rather than get him one drink, I got him two. I was the designated driver, John can't even drive that car, so I was the driver and they were both for John, simple as that.
Q. Your evidence on Monday at line 11, "Got two glasses of red, and what I thought we were going to do was have a glass each and just sit and watch the lights." That's wrong, is it?
A. Well, both drinks were for John, and I don't - I don't recall saying that, so can I please see the transcript, cause both drinks were for John.
HIS HONOUR
Q. Sure, have a look at my copy.
A. Yep.
Q. It's highlighted.
A. Yep. Well, I'm mistaken there, I bought them both for John, so I've made an error there.
HUTCHINGS
Q. Have you not been careful in the giving of evidence in these proceedings?
A. Yes. I - I don't recall saying it in those exact words and I've made an error there. Both drinks were for John, I was not planning to drink anymore.
Q. The transcript service hasn't failed you, has it?
A. Well, I - I wouldn't - I wouldn't think so. Sir, I'm being very honest, I've - I've made an error there. Both drinks were for John, that's what I had in my mind then, and that's what I did.”

There are numerous other inconsistencies in the evidence.

One should note that the plaintiff told me that he was aware that he should only drink one standard drink per hour and later he was to confess that he needed to sober up in order to drive home, but nevertheless he drank at least one whole oversize glass of red wine shortly after 1.30am and part of another oversize glass of red wine following his consumption of the first of those generously poured drinks.
The plaintiff left the venue at the Opera House shortly before 2am. He told me in cross-examination on the first day that he stayed at the venue until either ten minutes before 2, or five minutes before 2, when he and others were told to leave the venue. The plaintiff went on to tell me that he was walking on the forecourt of the Opera House, when his phone started to ring. He did not answer the first call because the number did not identify itself, but he did answer the second call made from the same unidentified number and then said that he was told about something that had happened to Mr Tanner and he decided to go to Mr Tanner's assistance, because he had been assaulted, and that is when the plaintiff returned to his vehicle in Macquarie Street.
The plaintiff's memory was then prompted about buying a hamburger. He then volunteered that he probably left the venue at the Opera House about 1.50am and then walked to Hungry Jacks Burger Restaurant at Circular Quay and bought a hamburger and that is when his phone commenced ringing, not when he was on the Opera House forecourt. When cross-examined by Mr Matthew Hutchings, for the defendant, the plaintiff volunteered this, then being asked questions about moving his vehicle from Macquarie Street:

"I had about half a burger to be precise because you're wanting me to be very precise so I had half a burger and I had a glass and a bit of wine whilst looking for John because I couldn't find him. I'm trying to be very precise."

In cross-examination on the third day of the hearing, 20 May 2015, the plaintiff gave this evidence:

"Q. You've told his Honour that you had a hamburger on the night, that was about 12.45, wasn’t it?
A. No, it would've been later than that. It would've been about 1.40.
Q. All right. And you'd been told that the bar was closing that you were at before you had the hamburger, weren't you?

A. Yes.
Q. That was about 1.30, wasn’t it?
A. Well, they, they called last drinks about 1.20 actually.
Q. But you had your last drink just before they got everyone to leave the venue?
A. Well, when I moved - I moved the car at about 12.45, finally got back to the bar, walked in, bought two glasses of red wine, stood around, waited and waited and looked and looked and looked.
So would, it would have been about 12.40 - sorry, 1.45am that I walked over and, and bought a burger and, and, and had a nibble on it and then I started getting the calls. And then I put the burger into this - I’m wearing the exact clothes I wore that night with the exact shirt, same jacket.
Q. Mister..
A. Well, I’m just trying to explain I put the burger in my pocket.
Q. I haven’t asked you about a burger, I’ve asked you..
A. Well, you actually did ask me about the..
Q. The last question I asked you was about what time you had your last drink.
A. Last drink?
Q. Alcoholic beverage.
A. Yeah, okay, so I was, I was sipping that drink until about 1.35.”

One can see that no time was given with any exactitude. If the plaintiff left the Opera House at 1.50 or 1.55, he could not have bought the hamburger at Circular Quay until 2 o'clock or very close thereto. Furthermore, when the plaintiff was eventually searched by police, something that was not found was a partially eaten hamburger in his pocket.

On his own admission, the plaintiff appears to have drunk at least seven and perhaps eight alcoholic beverages since about 8pm. Between 8pm and 2pm is six hours. One would not expect a very high blood alcohol content if eight standard drinks had been consumed over a six hour period. However, it may well be that the size of the glasses was greater than a standard glass of wine and the problem with the concept of a “standard glass of wine” is both the size of the glass and the alcoholic content of wine, which can vary considerably, especially between white wine and red wine, and between imported wines and local wines.
One can also see from the evidence that I have just quoted that there was no exactitude as to when things occurred and various attempts or estimates or guesses made as to when things did occur. This highly indicates reconstruction of evidence, rather than actual recollection of what occurred at what time and in what order.

Mr Tanner is assaulted

Mr Tanner said that he was assaulted by Opera House security staff outside the actual venue at the Opera House which he had been attending. He denied that it was due to his having consumed too much alcohol, but no reason was advanced by him or suspicion advanced by him as to why he had been assaulted by the Opera House security staff. He was found lying or perhaps seated on the footpath in Macquarie Street and “rescued” by some “Good Samaritans” and taken to the Oxford Art Factory, a nightclub on the northern side of Oxford Street, between Whitlam Square and Taylor Square. He was met there by the plaintiff. Mr Tanner looked very upset. His eyes were red and he had been crying. He told the plaintiff that he had been assaulted. The plaintiff said this about Mr Tanner’s injuries:

“I didn’t actually see any injury until later in the police station because he was wearing a woollen coat, so the injury I couldn’t see. But later in the police station he, he had an open graze, he had several open marks on his, on his, on his arm and body.”

CCTV footage from the Rose Bay Police Station shows Mr Tanner demonstrating his injuries to police at the police station and what appears to be shown are some minor abrasions to the upper left arm. These were sometimes referred to by the plaintiff as Mr Tanner’s “wounds”, but that is clearly hyperbole. This is a case in which there was much hyperbole on both sides of the record, as far as the witnesses are concerned.

After picking up Mr Tanner from the Oxford Art Factory, the plaintiff drove to the Rose Bay Police Station on the corner of New South Head Road and Wunulla Road. That police station is 650 metres from the plaintiff’s residence (see exhibit 16). Victoria Road turns off New South Head Road about 550 metres west of the Rose Bay Police Station, near the entry to the Redleaf Pool reservation. I note from the same exhibit that Redleaf Pool has been renamed the Murray Rose Pool, but the café retains the original name of the Redleaf Pool Café. The Rose Bay Police Station can be seen as the plaintiff’s local police station, the existence of which he would have been well aware, as I infer from the evidence that he had lived at 2B Victoria Road, Bellevue Hill for some little time prior to the events now in question.
On this evening the plaintiff was driving a 1973 black Lotus sports car, which he had purchased in the United States of America and imported into Australia. It is driven from the left-hand side. It is low slung. Mr Tanner is an American. That was clear from his accent. He also told me that he had a California driver's licence, which had enabled him to obtain a New South Wales driver's licence, but he has never driven a motor vehicle in Australia. The inference I drew from how he gave his evidence was that he was concerned about driving on the left-hand side of the carriageway. He told me he had not driven Mr Rook’s black Lotus motorcar. Mr Rook told me that it was a difficult car to drive. One needed some experience of driving it before being able to manage it. The inference I drew from the evidence is that the plaintiff’s car was an unusual one which would draw attention to itself. When the plaintiff arrived at the Rose Bay Police Station he parked his car on the western kerb of Wunulla Road which, in essence, runs north from New South Head Road towards the Point Piper marina and then further north to Woollahra Point. Where the plaintiff parked was governed by a no stopping sign, although it had been damaged and was bent. It became common ground that the plaintiff had parked in a no stopping zone.

Events at Rose Bay Police Station

He and Mr Tanner entered the police station at 2.34am on the morning of 5 June. The CCTV footage from the Rose Bay Police Station became exhibit O. That clearly shows interaction between the plaintiff, Mr Tanner, Probationary Constable Christopher Homard, Constable Natalie Wynn-Williams and Constable Sarah Walker-Lear. At one stage a further male police officer can be seen in the footage but no one has been able to identify that officer. The evidence suggests that he may have been a transient appointment to the Rose Bay Police Station or perhaps merely a visitor or relief person on that evening. In any event, no suggestion of any participation in the events now in question is assigned to the unidentified male police officer. Unfortunately, there is no audio content to the CCTV footage. It would have been most interesting to hear, had there been. What the footage does show is that whenever there was anything being said by either the plaintiff, Mr Tanner or Constables Wynn-Williams and Walker-Lear there was much gesticulation. Indeed, I observed perhaps flippantly that there appeared to be in it more gesticulation than one would expect in a comic Italian opera. The only person who does not gesticulate at all is Probationary Constable Christopher Homard. It is unusual for males with a British background to gesticulate much at all when sober. Gesticulation by ladies is much more common. The extent of the gesticulation by the plaintiff and Mr Tanner is consistent with their having consumed some not inconsiderable amount of intoxicating liquor. I have formed the view that those who gave evidence about what was said at the police station are largely reconstructing what they believe they heard was said at the time. The moment would have been of no significance to the police concerned and it is clear to me that the plaintiff and Mr Tanner probably had a poor recollection of what was actually said and have largely reconstructed what was said.
In essence, the plaintiff and Mr Tanner went to the Rose Bay Police Station to report what has happened to Mr Tanner and to invite, perhaps even to demand, that the police at the Rose Bay Police Station do something about what had occurred to Mr Tanner. Much emphasis was placed on whether the police told the plaintiff to take Mr Tanner to a hospital or casualty ward or emergency room or whether the police who interacted with the plaintiff and Mr Tanner told him to drive Mr Tanner to a hospital casualty department or emergency room. There is evidence of both from the plaintiff himself.
In chief the plaintiff was asked how he was feeling as he entered the police station. He said this:

“I was upset, I was rattled and I, I wanted to have something done about these men who had, we allege, attacked John. But I, I think I was reasonably, reasonably calm but upset about what had happened to John.”

He then went on to tell me of entering the police station at 2.36am, however, the counters on exhibit O clearly indicate entry at 2.34am. He then explained that there were two female police officers present as well as a male police officer, clearly, Probationary Constable Homard, the male, and Constables Wynn-Williams and Walker-Lear, the two lady police officers. In chief the plaintiff initially said this:

"And I walked in and I proceeded to explain what had happened. I was courteous, I was matter of fact, I thought that they would help us so I was looking to them to help us. John, John showed the police his wounds, he's seen on the video and I saw him there with me, he was showing them his, his wounds and we’re explaining what happened and when and the various things.
And, they said several times - the lady police officer said, 'Look, there's nothing we can do, nothing we can do for you. You need to take your partner to an ER ward.' That was their exact words and, 'you need to drive him to an ER ward, there's nothing we can do for you.' And I was annoyed by that because I said, 'Look, I'd like you to take our statement, or I'd like you to do something. Are you going to speak to the Sydney Opera House guards?' and they said, 'There's nothing we can do for you, you need to take John to the ER ward.'"

One will note in that passage of evidence that the plaintiff said a number of times that he was advised by police to take Mr Tanner to an emergency room or emergency ward, but he then added once that he was told to "drive" Mr Tanner to an ER ward. The plaintiff told me then about his stammer and that he stammers more when he is stressed and that he was moderately stressed on this evening. He also told me at another place in the evidence that because of his stammer he tends to speak somewhat slowly and somewhat loudly.
The plaintiff told me in his evidence-in-chief that initially Probationary Constable Homard was attentive to his complaint, that he pulled out his police notebook and started to write things down but after "two minutes" he put his notebook away. He went on to tell me that Probationary Constable Homard asked for the plaintiff and Mr Tanner to give him their driver's licences and he left with those driver's licences and went to the back of the police station out of their sight. It appeared clear to me that Probationary Constable Homard was probably photocopying the driver's licences to save having to take down details such as the full name, residential address and date of birth of each of the persons who had turned up to make a complaint at the police station. That merely saves time and effort and, if it were perceived, which it clearly was, by the two female constables that the plaintiff and Mr Tanner were intoxicated, that it would make the recording of their personal details easier than trying to take the details from persons who were affected by alcohol.
At some stage the plaintiff became aware of two male officers at the back of the police station from where he stood, who we subsequently know to be Constable Sean Irwin and Probationary Constable Mark Trifunovic. The plaintiff could not recall what was said to him by Constable Irwin. The plaintiff in his evidence-in-chief said this:

".. then I saw Irwin and Trifunovic. Now, I think Irwin yelled something at me, as in to say something, I didn't really hear it at the time because I was busy talking to Homard but later in Court [the Local Court] Irwin explained that he'd yelled to me to move my car."

He went on to say that he "didn't catch" whatever it was that Constable Irwin said to him, that he did not hear it and then he said that it did not register which means that although he may have heard it, he did not understand it at the time. He could only remember Senior Constable Irwin "yelling" something out.The plaintiff then gave this evidence:

"Q. Now, how did your discussion with the officers at the counter end?
A. I said to them, I, I was annoyed. I mean, I was professional to them, I was seeking their help, I, I don't want to get police angry, the few times I ever deal with police. So we agreed to disagree, they said, 'There's nothing we can do for you, we can't do anything now. Take John to an ER ward.' I wanted them to take our statement, to take my statement and I wanted them to do something about Sydney Opera House guards, given that they were still there. But they said, 'No, there's nothing we can do for you, take John to the ER ward.' I said, 'Fine, we're leaving, bye.' So there was nothing rude, I wasn’t rude, we just left."

The counters on exhibit O show that Mr Rook and Mr Tanner left the Rose Bay Police Station front entrance at 2.45am, Mr Rook preceding Mr Tanner, Mr Tanner leaving the premises 11 seconds later.

The following points must be noted which would have been clear to the officers at the Rose Bay Police Station but never appear to have crossed the mind of Mr Rook. Mr Rook needed not to make any statement because anything that he said about an assault upon Mr Tanner was clearly hearsay. He did not see it happen. He came on it well after the event. The person who could be considered the complainant was Mr Tanner. The police suggested that Mr Rook did most of the talking. So did Mr Tanner (T 103.34 and T113.42). Indeed the police who gave evidence about this interaction, former Constable Wynn-Williams and Constable Walker-Lear, both gave evidence indicating that it was difficult for Mr Tanner to get a word in edgewise. The CCTV footage to me indicates that although Mr Rook said much more than Mr Tanner, Mr Tanner did have an opportunity to state what he wished to state and to demonstrate to the police the abrasions on his left upper arm.
However, both Constables Wynn-Williams and Walker-Lear indicated that they readily perceived that both the plaintiff and Mr Tanner were affected by alcohol and, as far as the plaintiff is concerned, that was clearly the case and, if the plaintiff’s evidence is to be believed as to the rate at which Mr Tanner was drinking, and he suggested that Mr Tanner could take more alcohol than the plaintiff himself could, then one might think Mr Tanner was as equally affected as the plaintiff. In those circumstances one could see the police suggesting to the plaintiff that he and Mr Tanner return later when both had had an opportunity to sleep and sober up, so that they could take a meaningful statement from Mr Tanner when he was not affected by alcohol or, indeed, by emotional upset. Constable Walker-Lear made the point that the plaintiff and Mr Tanner wanted the Rose Bay Police to travel to the Opera House to interview and/or arrest the security guards who were alleged to have assaulted Mr Tanner. That would be an impossibility until an adequate description of the assailants had been provided by Mr Tanner. Furthermore, there would be the usual “jurisdictional” problems of police from Rose Bay travelling to somebody else’s LAC to do something in the other LAC without first obtaining a clearance from the local police. I do not know who the local police would be for the Opera House, but the nearby police stations are those in The Rocks, at Town Hall, in the Haymarket and the Sydney Police Centre, leaving aside police at either Darlinghurst or Surry Hills, if there still be police stations there. I understand that there is still a police station at Kings Cross.
The plaintiff, in his evidence-in-chief, made more statements about the police asking the plaintiff to take Mr Tanner to an ER room than to drive Mr Tanner to an ER room. The evidence of both former Constable Wynn-Williams and Constable Walker-Lear is that the plaintiff and Mr Tanner were asked if an ambulance was required and, if so, they would call one, but Mr Tanner said that he did not need an ambulance. One can understand police being reluctant to convey injured persons in a police vehicle because, if there was a sudden deterioration in the condition of an injured person, the question would automatically be asked why did the police not call for an ambulance. In any event there is no suggestion that at any stage was it necessary to take Mr Tanner to an emergency department or casualty ward or a hospital or a clinic or a medical practitioner or even some provider of first aid. The injuries which Mr Tanner received were at most extremely minor, no more than some abrasions, which could no doubt be treated by Mercurochrome or Betadine liquid or ointment and perhaps a Band-Aid.
The effect of the evidence of Constable Walker-Lear was to characterise the demeanour of the plaintiff as loud, belligerent and obnoxious and that he appeared to her to be heavily intoxicated and highly argumentative. Those are characterisations made by the plaintiff in his written submissions with a cross-reference to T 248 and 258. In essence, the observations of Constable Wynn-Williams were similar to those of Constable Walker-Lear, although not in as hyperbolic terms as those of Constable Walker-Lear.
There is little doubt in my mind that the plaintiff dominated the conversation between himself and Mr Tanner and the three constables at the front desk of the Rose Bay Police Station in the early hours of Sunday, 5 June 2011. There is no doubt that he was upset that they would not take a statement immediately from him and one can understand no one being interested in taking a statement from him because he could not give any direct evidence. The only person from whom a statement could be taken would be the actual complainant, Mr Tanner, and one can understand that they were reluctant to do so when they perceived that he was intoxicated. One can further understand the police refusing to go to the Opera House and interview and/or arrest the security guards thought to be responsible for assaulting Mr Tanner.
I am persuaded, particularly on the evidence of former Constable Wynn-Williams, despite what was said by the plaintiff and Mr Tanner, that Mr Tanner was offered an ambulance, but declined it on the basis that he did not need ambulance attention. I am not persuaded on the balance of probabilities that the plaintiff was told to “drive” Mr Tanner to a hospital, but merely to “take” him there, if he did not need ambulance attention.
It is clear from the evidence of all four persons who gave evidence about what transpired at the counter at the Rose Bay Police Station between 2.34 and 2.45am on 5 June 2011 that the interview was a noisy one, a querulous one, and one which probably annoyed all concerned. I also accept that it would have been extremely difficult for Constables Walker-Lear and Wynn-Williams to differentiate between the effects of alcohol on the plaintiff and his stammer and loud speaking resulting from a speech impediment, as distinct from a speech impediment acquired by intoxication.
An important exchange, to which I have already adverted, is the exchange between the plaintiff and Constable Irwin. This I need to develop. On the evening in question Constable Irwin was assigned with Probationary Constable Trifunovic to man a caged police truck, RB15. Each of Constable Irwin and Probationary Constable Trifunovic have advanced in rank since the evening now in question, but I shall refer to them by the rank that they had at the time of the events in question. It appears that the shift commenced at 6pm, although initially Constable Irwin said it started at 4pm. The driver throughout the 12 hour shift was Constable Irwin. Although the junior officer is generally the driver of a police vehicle and the senior officer the observer, sometimes these roles are shared. However, on this evening they were not. The reason for that is quite simply that Probationary Constable Trifunovic had not the necessary permission or licence from the Commissioner of Police to drive a police vehicle with, for example, its lights flashing and sirens blaring in pursuit of a vehicle or to attend to an emergency.

On the evening now in question RB15 had returned to the station so that Constable Irwin could use the toilet. The parking area for police vehicles at the Rose Bay Police Station is to the north of the station, one turning into it from Wunulla Road. When returning to the police station Constable Irwin noticed the plaintiff’s vehicle, which was registered number DR-73-TC. He noticed that it was parked illegally.
On his way to the toilet Constable Irwin spoke to Mr Rook, whose identity he knows from their subsequent interaction. He noticed the plaintiff and plaintiff’s life partner, “[h]aving some kind of confrontation, talk, argument with a couple of police in the station.” He identified this interaction as being “very loud”. Constable Irwin said this in his evidence-in-chief:

“Q. What did you say to Mr Rook when you spoke to him?
A. I asked Mr Rook if he owned the black vehicle parked outside the station.
Q. Did he say anything in response to that question?
A. He said yes.
Q. Did you say anything after that?
A. I asked him if he could move the vehicle, otherwise he’d be getting a ticket and as it makes it hard for us to exit in case of an emergency.
Q. Did you tell him why he would be getting a ticket?
A. Cause he’s parked in a ‘No Stopping’ zone.”

Constable Irwin then proceeded to the toilet. According to Constable Irwin’s evidence-in-chief, he had no further interaction with the plaintiff at the police station. He then told me that he left the station with Probationary Constable Trifunovic after having spoken to Constable Wynn-Williams. He could not recall what he said to her. I have already indicated that exhibit O shows the plaintiff and Mr Tanner leaving the police station at 2.45am via the front door from the area open to the public. Another camera indicates that Constable Irwin left another door of the police station onto the police carpark at 2:46:14, being preceded by another male officer, who was clearly Probationary Constable Trifunovic, at 2:46:12.

At the same time as Probationary Constable Trifunovic and Constable Irwin left the police station they were followed very closely by Constable Wynn-Williams, who went outside for some very short period, about a second, and that Constable Walker-Lear came to the back door and was seen looking out towards where the two male constables had gone. It was suggested by counsel for the plaintiff that Constable Walker-Lear smiled, but that is not completely clear. She makes a gesture with her hand over her mouth, perhaps wiping her mouth, which horrified her to see, as it appeared to be somewhat unladylike. Whether the resultant position of her lips suggests a smile is not conclusively established to me. No one, that is, neither Constable Irwin, Constable Wynn-Williams, or Constable Walker-Lear, has any recollection of what actual conversation, if any, may have been happening at the time, but it is quite possible that it was merely some pleasantry or joke that had been passed between the four people at the back of the police station or at the door leading to the police station carpark. What may have been said is purely a question of conjecture.

The plaintiff leaves the Police Station

As the plaintiff was leaving the police station he saw police, who were clearly Constable Irwin and Probationary Constable Trifunovic going towards RB15. The plaintiff gave this evidence:

“So as we were walking towards our car I saw two policemen walking all walking very fast, they were really walking very fast, through the police carpark, and then one of them, I don’t know who it was, but one of them yelled, ‘Hey mate, you’ve got to move your car.’ I think it was Irwin, said, ‘Hey mate, you’ve got to move your car,’ and I yelled back, ‘Yes, I am, I’m moving it now.’”

The plaintiff went on to say in his evidence-in-chief that as he was getting into his vehicle the two policemen had started up the police caged vehicle, known affectionately by all in this country as a “paddy wagon”. The plaintiff says that he did a U-turn to reverse his direction from north-facing to south-facing in Wunulla Road. He then drove up to the intersection of Wunulla Road and New South Head Road and turned right in order to head westwards along New South Head Road to its intersection with Victoria Road driving past the grounds of the Cranbrook School on his left.

Senior Constable Irwin and Probationary Constable Trifunovic say that the plaintiff made a three-point-turn in Wunulla Road and part of that three-point-turn was a right-hand turn into the driveway of the police carpark and then a reversal from that point back into Wunulla Road and then heading south for a very short distance along Wunulla Road prior to making the right-hand turn into New South Head Road. Exhibit 1 is a large photograph of the entrance to the police parking area on the northern side of the Rose Bay Police Station. It clearly shows a driveway into the police parking station. A caged police truck is parked in that photograph in the same place as RB15 was in the early hours of 5 June 2011. Marked with the letter “X” is the position to which, according to Constable Irwin, the plaintiff brought the front of his black Lotus prior to reversing into Wunulla Road as part of the three-point turn. The photograph clearly identifies a prohibition of making a right-hand turn into the police carpark with the words, "Police Vehicles Excepted" under the no right-hand turn sign, together with an affixed yellow sign stating "Caution, Emergency Vehicles Exiting." The same sign is erected on both the south side and the north side of the police driveway. In addition there is fencing and on the fence on each side of the driveway is erected a sign saying "Police Parking Only. No Public Thoroughfare." Technically if the plaintiff did turn his vehicle into the police driveway, he had made a right-hand turn and therefore contravened the prohibition contained in the sign. If I accept the evidence of Constable Irwin in this regard, then there was a technical breach of the law by failing to observe the no right-hand turn sign.
Unfortunately no one has put before me a photograph of the width of Wunulla Road in this area, nor is there any photograph of the no stopping zone on the western side of Wunulla Road opposite the Rose Bay Police Station. The plaintiff asked me to accept that the road was at this time at least four lanes wide, one lane for parking on each side of the street and two lanes enabling cars passing in the opposite direction to pass without difficulty. However, such a configuration makes it difficult to understand why there should be a no stopping sign where there clearly was one and how anybody parking in the no stopping sign could impede police leaving the carpark in an emergency. The plaintiff himself vacillated on whether he made a U-turn or a three-point-turn, and I shall address that evidence tomorrow morning.
One thing which I should have mentioned antecedent to this was a minor discrepancy in evidence between Constable Irwin and Probationary Constable Trifunovic. Constable Irwin said that his interaction with the plaintiff was as he was going to the toilet where he appears to have spent a number of minutes. Probationary Constable Trifunovic thought that that interaction was after Constable Irwin had visited the toilet, that is, as they were leaving the police station to go to their police vehicle. Of course the plaintiff would have me believe that he did not hear what Constable Irwin said in the police station but did hear him say the same words when he was crossing Wunulla Road, or perhaps the footpath, outside Rose Bay Police Station and as Constable Irwin was in the carpark, a circumstance not attested to by either Constable Irwin or Probationary Constable Trifunovic. Of the two versions I prefer that of Constable Irwin who would have more reason to recall it, being the actor in the interchange than that of Probationary Constable Trifunovic, who was merely a potential witness to the interchange. As between the police and plaintiff and Mr Tanner, I prefer the evidence of Constable Irwin on this issue. It appears to me to be more reliable.

ADJOURNED TO TUESDAY 2 JUNE 2015

When we adjourned yesterday afternoon, I had been discussing the exchange between Constable Irwin and the plaintiff about the need for the plaintiff to move his motor car from the place where it was illegally parked. Although the plaintiff said he was told to move his car after he had left the police station, as he was walking to it, later in evidence he admitted that he was told that he had also been told to move his motor car when he was in the police station. On 19 May 2015, the plaintiff said this, commencing at T 87.49:

"Q. Being your contention, was it not that you were in fact not parked illegally?
A. I - when I first parked there, I thought I was parked legally, but later I realised I had parked illegally, and the police yelled at me in the police station and outside to move my car which I did.
Q. Who was it who yelled at you inside the police station?
A. Later when I - when I read the transcript - or Irwin informed me that when he yelled at me in the police station, what he yelled was, 'Hey mate, you've got to move your car,' and then he did it again as they were running towards their van.
Q. So it's Constable Irwin inside and outside the police station who tells you to move your car.
A. Very kindly told me to move my car, which I did."

It is not entirely clear from that response whether this was a frank admission that he recalled Constable Irwin having told him in the police station to move the car or whether it was the plaintiff's reconstruction of being told twice to move the car, once in the police station and once when he was outside the police station, the reconstruction being based on what he understood Senior Constable Irwin to have stated either in his statement or in evidence.

The matter which I have just discussed was an interlude after I raised the question of whether the plaintiff made a U-turn or a three-point-turn. Eventually the plaintiff said this in cross-examination about this issue:

"Q. Have you ever told the Court a different version of the circumstances in which you turned around in Wunulla Road and entered New South Head Road?
A. Well, I, I did a three-point-turn U-turn so it's, I, that's the turn that I did, half three-point-turn, half U-turn, because I think I needed to reverse slightly to make the turn.
Q. When you told his Honour yesterday it was a U-turn, that wasn't quite accurate.
A. Well, it was U-turn and then I think I did reverse slightly to finish the turn.
Q. You know the difference between a U-turn and a three point turn, don't you, Mr Rook?
A. All I said was half a U-turn and half a three-point-turn.
Q. You turned the steering wheel of your vehicle toward the right, you turned across Wunulla Road, you brought it to a stop and you reversed, correct?
A. I'm, I almost made it but I had to reverse a little bit, that's correct.
Q. Then you again engaged a forward gear and completed a turn and you were then facing in the other direction in Wunulla Road?
A. Correct."

Clearly a three-point-turn had been made. The position adopted by the plaintiff was akin to saying that he was, if he were a female, "a little bit pregnant". Either it was a three point turn or a U-turn. It clearly was a three-point-turn. I have no hesitation in accepting the evidence of Constable Irwin that the plaintiff effected a three-point-turn.

The plaintiff drives towards his home

The plaintiff then turned right out of Wunulla Road onto New South Head Road. He was followed by Constable Irwin and Probationary Constable Trifunovic in RB15. The evidence of Constable Irwin is that he wished to speak to the plaintiff about his illegal right-hand turn, being part of the turn which required him to turn into the driveway of the police carpark of the Rose Bay Police Station.
There is then a further factual contest on three issues. The first issue is in which lane did the plaintiff travel and therefore in which lane did RB15 travel as it followed the plaintiff. The next issue is when did RB15 engage its flashing blue and red lights and its siren. The third issue is when did RB15 start flashing its high beam lights at the plaintiff's motor car.
As I mentioned yesterday, the plaintiff's car is a sports car, it is low slung. RB15 is a Ford utility truck on which has been mounted a fibreglass cage to house prisoners, the modern version of a paddy wagon.
Senior Constable Irwin maintained in his evidence before me, both in chief and in cross-examination, that he followed the plaintiff in lane 2 of 2 westbound lanes on New South Head Road where there were only two lanes, lane 1 being near the kerb and lane 2 being next to the centre line of New South Head Road. The evidence suggests that at some stage New South Head Road westbound, after its intersection with Wunulla Road, has three lanes, the more left-hand lane usually occupied by parked motor vehicles. Where there were three lanes it is clear from the evidence that both the plaintiff and Constable Irwin ignored any parking lane so that where there were three lanes, lane 1 of 2 was the middle lane and lane 2 of 2 was the lane closest to the centre line. I am unable to accept the evidence of Constable Irwin that he followed the plaintiff in lane 2 of 2 rather than lane 1 of 2. Why Constable Irwin maintained on oath before me that he travelled on in lane 2 of 2 following the plaintiff driving in the same lane I cannot explain other than by saying that he based it on a recollection which was erroneous, that he could not overtake the plaintiff’s vehicle on the right-hand side of the carriageway, such that the plaintiff’s vehicle obstructed him if, in an emergency, he needed to go past the plaintiff’s vehicle to respond to some other call. The effect of his evidence was to indicate a persistence by the plaintiff in conduct which may have otherwise impeded police activity.
The evidence which Constable Irwin gave to me is quite inconsistent with the evidence he gave in the Local Court. In evidence in the Local Court on 25 October 2011 Constable Irwin said this in cross-examination:

“Q. Then when you went outside and you saw him get into his vehicle and you followed him, what lane were you travelling in?
A. I was behind him so would have been in lane 1.
Q. I put it to you that he was actually in lane 2.
HER HONOUR: Is this to do where he lives?
WOOD: Yes, we’re going there.
HER HONOUR: All right.
Q. What do you say that he was..
A. We were both in lane 1.”

Constable Irwin also gave evidence before the Local Court on 3 February 2012. At p 84 of the transcript the following questions and answers appear:

“Q. Do you recall what lane you were in?
A. Lane one or two.
Q. Lane one or lane two?
A. Lane one or two.
Q. The whole time?
A. That’s correct.
Q. So you didn’t change lanes at all?
A. On the way to his house?
Q. Yes.
A. No.
Q. Did Mr Rook change lanes at all?
A. No, we followed Mr Rook the whole way behind him.
Q. He remained in the same lane at all times?
A. That’s correct.”

When confronted with that evidence Constable Irwin said that what he said was correct, that the plaintiff travelled in “lane one or two” [my emphasis]. Like learned senior counsel for the plaintiff the only conclusion I can draw is that there is a mis-transcription in the two of the answers which Constable Irwin gave where the answer is recorded “lane one or two” [my emphasis] when he was saying “lane one of two” [my emphasis]. That is the only interpretation of the words spoken that makes sense. Lest I was being unfair to Constable Irwin, I had my Associate make inquiries of Court Reporting Services to ascertain whether the audio recording was still available of Constable Irwin’s evidence given in the Local Court on 3 February 2012. Counsel were told by my Associate that he had been directed by me to make that inquiry and they both concurred that it ought be done. Unfortunately, sound recordings are destroyed after three years and the sound recording was no longer available. However, it is clear to me that the position adopted by Constable Irwin in the Local Court was that the plaintiff was driving in lane one of two and the position he adopted in giving evidence before me was that he and the plaintiff were both driving in lane two of two.
Indeed, Probationary Constable Trifunovic in cross-examination told me that they travelled in lane one, the left-hand lane of two lanes, that is lane 1 of 2. I accept that the plaintiff drove in lane 1 of 2 and was followed by RB15 in the same lane. That finding is reinforced by this consideration. To turn left into Victoria Road from New South Head Road both the plaintiff’s vehicle and RB15 would need to be in the left-hand lane, lane 1 of 2. If the plaintiff turned left from lane 2 of 2, he would have been committing a criminal offence. A motorist who is travelling in lane 2 of 2 and wished to turn left would need, first, to change lanes by changing into lane 1 of 2, and later turn left. No suggestion has ever been made that the plaintiff made an unlawful left-hand turn, that is turned left into Victoria Road from lane 2 of 2, and there is no suggestion that when the plaintiff was in New South Head Road that he ever changed lanes from lane 2 of 2 to lane 1 of 2. The conclusion is inevitable that the plaintiff travelled in lane 1 of 2, as did RB15, and I am unable to accept the sworn evidence in that regard by Constable Irwin before me. The evidence he gave in the Local Court is much more likely to be accurate, and accords with both the evidence of the plaintiff and the evidence of Probationary Constable Trifunovic.
The next issue is when did RB15 engage its flashing blue and red lights and its ordinary siren? Constable Irwin made it clear by marking on exhibit 16, a map, that he engaged the flashing lights and the sirens immediately after he turned onto New South Head Road. He marked exhibit 16 with “XA” for that position, which is clearly on New South Head Road after he turned right out of Wunulla Road. On the same exhibit Constable Irwin marked “XB” as the place where he started flashing his high beam lights at the plaintiff’s vehicle, that position being opposite a bus stop on New South Head Road on its southern side outside the playing fields of the Cranbrook School. That bus shelter can be seen in exhibit 17 and the bus shelter is identified on the map which is exhibit 16. Exhibit 16 also shows a third lane on New South Head Road westbound which clearly, at the place where the bus shelter is, was designed to accommodate a bus so that it did not interrupt traffic in lane 1 of 2.
Exhibit A, an aerial photograph, shows the distance between Rose Bay Police Station and the commencement of the plaintiff’s driveway as being 550 metres. Initially, the “550 metres” was not admitted as evidence. I was assured by learned senior counsel for the plaintiff that the actual distance would be otherwise established. Exhibit 16 shows the distance from the Rose Bay Police Station to the plaintiff’s actual residential building as being “650 metres”, but it is clear to me that the extra 100 metres represents the entire length between the commencement of the driveway to 2 Victoria Road and the building which constitutes 2B Victoria Road. Eventually, as the distances were not otherwise established by evidence, counsel agreed that the two distances shown on exhibit A and exhibit 16 were to be evidence of the facts stated by the distances shown on the two exhibits. In essence, Constable Irwin and Probationary Constable Trifunovic say that the flashing police lights and the ordinary siren were engaged for 500 metres, the approximate distance from the intersection of Wunulla Road and New South Head Road to the intersection of New South Head Road and Victoria Road, the commencement of the plaintiff’s driveway being almost at the same place as the intersection of New South Head Road and Victoria Road.

The evidence called from the plaintiff and Mr Tanner is otherwise, but the evidence of the plaintiff vacillated. In chief, this evidence was given at T 35 on 18 May:

“Q. At some point did you become aware that there were police behind you?
A. Yes. About 100 metres or so from my drive, right as I was putting my left hand indicator on, police came fast, really fast, right up behind me, flashing their lights.
Q. Did you hear a siren?
A. No, I heard a siren as we - so what happened was I see these police coming out behind me, I’m starting to brake because I’m about to turn up my driveway. And when, and when actually you turn into my driveway you can’t stop there because it’s very narrow and very steep so I drove up the top and they kept going behind me. And that’s when they went with their alarm, like, they didn’t do - it was just a few clicks, plus they kept flashing their lights so I stopped at the top of my drive, in the middle of the carpark.
Q. So you heard the siren sound twice in short bursts?
A. As I was driving up the drive, correct."

That evidence suggests that the plaintiff saw the police car with its flashing lights "about 100 metres or so" from the turnoff up his driveway. Essentially he saw the police lights flashing for 100 metres in the journey along New South Head Road. In cross-examination on the same day, this evidence was given:

"Q. Was that at or about the time you first realised there was a police car behind you, following you down New South Head Road with its lights illuminated?
A. Well, John and I were having this discussion about what we were, what we were going to do because we were going to go to the ER ward like the police had told us, and then, and then we had that discussion, and that was the thought that was going through my mind, is I'd like to just put the car away and get off the road and then, yes, I saw flashing lights at that stage as I was turning into my drive.
Q. But you first saw the flashing lights about - on your version - 100 metres before you reached your drive, didn't you?
A. About 80 metres. We're talking seconds here. I'm, I'm, I'm in - I'm going from 60 ks an hour to 50 ks an hour so this is all happening within, like, a five second range that I'm decelerating, changing down gears, put my indicator on, chatted to John, and said, 'Look, let's pull in,' and then, and then I see the police lights behind me.
Q. At that point when you saw lights behind you, you looked, you say, for a place to stop your vehicle so that you could see why the police were behind you with their lights on, that's
A. Correct.
Q. --correct, isn't it?
A. Correct, yes."

One will note from the evidence that I have just quoted that what was "100 metres or so" was reduced in cross-examination to "about 80 metres", and the plaintiff indicates that it was after he had started to decelerate and before turning on his left hand turning blinker, although a motorist is required to indicate a turn by engaging his blinker 200 metres before the turn is made.

There are at least three other considerations about this area of the evidence. The first is the plaintiff indicated that his motor vehicle was noisy and may have obliterated the sound of the siren. After the last piece of evidence which I have quoted, the transcript continues:

"Q. It would be safe to say that Mr Tanner at this point in time was in a highly excited state?
A. I, I wouldn't describe it as that. I'd say he was very upset. When you say highly excited, that means happy and - he, he was sad, he was hurt and sad.
Q. He was very upset.
A. He was upset.
Q. He was loud in the car, wasn't he?
A. When you say loud, my - that, that car's very loud. It has a forward twin cam engine with a big valve exhaust on it, you'll have to talk quite loud to even be heard, but our, our, our chat was at a normal conversation, it wasn't - he wasn't screaming at me."

It is difficult to understand how, if the car be loud and you have to talk quite loudly to even be heard within the car, a conversation could be had at a normal conversational level. Mr Tanner said the conversation was at a normal conversational level. Whatever the noise of the car might be, conversation within the cabin might be normal because the wound up windows of the cabin might obscure the noise coming from the engine, that is, the engine noise was external to the cabin. However, that external noise could interfere with other external noises such as police sirens.

There was then an issue as to the nature of the conversation that was occurring between the plaintiff and Mr Tanner in the cabin of his vehicle. For example, one needs to consider this evidence given in cross-examination on Tuesday 19 May:

"Q. Did he argue with you on the way to the Rose Bay Police Station?
A. I wanted to go to Rose Bay, I remember John wasn't as keen to go to the police station. I think he wanted to go home, but I don't think we argued about it, we simply went to Rose Bay.
Q. Did you - I'm sorry, I didn't mean to interrupt your answer.
A. So we simply went to Rose Bay Police Station.
Q. Did you argue after you'd left Rose Bay Police Station on your way to the driveway leading to your flat?
A. We had a to and fro conversation, he said, 'Look, I'd rather just go home.' I said, 'Well, maybe we should go to the ER ward,' he said, 'No, I want to go home. My shoulder hurts. I want to wash, I want to have one of those painkillers.' And I said, 'Well, you know what, that probably makes sense so let's get the car off the road.' So I wouldn't call that an argument. I'd call that a discussion.
Q. That discussion, as you've just described it, was something that was occupying your attention as you drove from the Rose Bay Police Station towards your flat?
A. In addition to operating the car, yes.
Q. And on 3 February you told Magistrate Milledge that you were listening - this question was asked of you, ‘During that drive what was going through your mind at that time?’ The context is between the Rose Bay Police Station and your flat, page 99. And you answered, ‘Well, I was listening to John saying ‘I want to go home.’ And I said, ‘No, you need to go to the ER ward’ and John was going, ‘No, I want to go home,’ bang. So that’s actually where my main concentration was, was John arguing. Basically arguing over going home so he could have a shower and take some pain medication and me getting him to the ER ward because he was cut, he was bleeding and he had bruises.’ That was what’s happening, wasn’t it? Do you agree?
A. Well, that’s, that’s, that’s what I said on 3 February. I remember a - a discussion but on 3 February I used the word “arguing”.
Q. Right. Which was it?
A. It’s a blend of the two. John was saying, ‘I want to do this’, I’m saying, ‘No, you should do this’. It was, it was to and fro. It was a borderline discussion - you know, he wanted to do one thing and I wanted to do another but then we compromised and I decided to pull into my drive.”

Either there was an argument or there was not. Either there was merely a discussion or the conversation was other than a discussion. The plaintiff told the Local Court that there was an argument. I think it likely that there was an argument between the plaintiff and Mr Tanner and the plaintiff was occupied by the exchange of words with Mr Tanner, the exchange of ideas, the exchange of intention as to destination. The attempt by the plaintiff to try to turn an argument into a discussion or to elevate the discussion into something like an argument was an attempt to reconcile essentially two inconsistent versions of what had happened.

There were a number of things which clearly could have distracted the plaintiff from realising that the police were following him with the flashing blue and red lights illuminated and with the siren blaring. They were, firstly, the noise of the motorcar; secondly, the argument - and I use that word advisedly - that was being had between the plaintiff and Mr Tanner in the motor car; and thirdly, it must be borne in mind that the plaintiff’s car was low slung whereas the police vehicle was not and he may not have been able to see the flashing red and blue lights because he was at a much lower level than those lights.
The next consideration to be thrown into this factual matrix is a police radio call made from RB15 by Probationary Constable Trifunovic. It is clear that in the Local Court both Constable Irwin and Probationary Constable Trifunovic had forgotten about this radio call and only had their attention drawn to it shortly before giving evidence before me, probably during a conference with Counsel. The radio call became exhibit 19. The audio of the radio call became exhibit 19/1 and a transcript of it became exhibit 19/2. One will recall that both Constable Irwin and Probationary Constable Trifunovic left the Rose Bay Police Station through the entrance to the police carpark at 2.46. As far as Trifunovic was concerned at 2:46:12 and as far as Constable Irwin was concerned at 2:46:14. At 2:47:07 Rose Bay 15 called for “a transport” meaning a transport inquiry. Radioed through was the registration number DR-73-TC, the registered number of Mr Rook’s Lotus motor car. A response was made by VKG at 2:47:40. VKG identified the vehicle as a black Lotus. At 2:47:48 Probationary Constable Trifunovic replied to VKG with the words, “Yeah, radio, copy that.” At that point a “whoop” can be heard, the sound of a siren. There was then a transmission by VKG that the Lotus was registered to David Rook of Double Bay and that the registration was current. There was then a gap of about four minutes and at 2:52:10 Rose Bay 15 called VKG again, was acknowledged and RB15, namely, Probationary Constable Trifunovic, said that they had “a positive BAS” and asked if a check could be made to see if Waverley Police Station was available to take the prisoner to it and that RB15 had on board a BAS operator, who we now know to be Constable Irwin. The call commencing at 2:52:10 was after the administration of a road-side breath test to the plaintiff. The time between RB15 first calling VKG and the acknowledgement at 2:47:48 was 41 seconds. At 60 kilometres per hour one travels at a speed of one kilometre per minute and therefore one can cover 500 metres in 30 seconds. There was a period of 41 seconds between the first call from RB15 to the acknowledgement of VKG’s response at 2:47:48. That 41 seconds was a sufficient period of time for 500 metres of New South Head Road to have been travelled.
In the earlier part of the transmission recorded one cannot hear any radio sirens. That has led Senior Counsel for the plaintiff to submit that that establishes that the sirens had not been engaged. However, there is a problem with that submission. Constable Irwin made it clear that when RB15 reached the bottom of the driveway, the ordinary sirens were turned off so as not to awaken those sleeping nearby, that is nearby residents. He told me that as he was driving up the driveway he activated the “whoop whoop” signal or siren twice, that is not the ordinary siren but a special siren designed to draw specific attention to the presence of the police vehicle. The “whoop” recorded in the audio is very faint. The question which arises is would the ordinary police siren, not the “whoop whoop” siren, be heard on a normal police radio transmission? That is not the subject of any expert evidence. If ordinary siren noise were recorded on VKG transmissions, it might make active policing very difficult. Police often are talking to VKG whilst they are pursuing errant motorists or driving to a crime scene, or responding to some urgent call. If the ordinary police siren could be heard on VKG transmissions, it might interfere with those transmissions and render the system of police radio communication defective or even inoperative. One can understand that there might be means of suppressing ordinary siren noise from police radio transmissions. That is especially so when the “whoop whoop” sound, which was designed to be different from the ordinary siren sound, could be heard but only faintly. I am not persuaded, on the balance of probabilities, that the absence of any ordinary siren noise from exhibit 19/1 establishes that the ordinary police sirens had not been engaged.
The real question for me is whether the ordinary police sirens and flashing lights were engaged at the places that Constable Irwin said they were, or whether he was being hyperbolic and they had been engaged at some later stage. I can accept that they were engaged at some point along the passage of RB15 on New South Head Road from the intersection of New South Head Road and Wunulla Road, and before the police reached the intersection of New South Head Road and Victoria Road, and it appears to me to be likely, at least, that they had been engaged for at least 100 metres prior to the intersection of New South Head Road and Victoria Road because that is what the plaintiff admitted in his evidence-in-chief, although he sought to reduce the length of that part of the journey during cross-examination. I accept, therefore, that for at least 100 metres before the intersection of Victoria Road and New South Head Road the police had engaged their ordinary lights and sirens, and the sirens were not initially heard for some reason or another by Mr Rook and Mr Tanner. That is also consistent, in my view, with the finding by the learned magistrate, admitted in the pleadings, that the plaintiff was found to have been guilty of an offence of not stopping a vehicle when directed to do so contrary to s 39(a) of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). In 100 metres the plaintiff could have pulled his vehicle over and stopped before reaching his driveway.
At some stage whilst he was driving, the plaintiff realised that he “shouldn’t be on the road”. The plaintiff was asked about telling the Local Court that on 19 May 2015 at the foot of T 94 and the top of T 95. Clearly, the plaintiff was aware that he had been drinking and that perhaps he should not be driving when he left Macquarie Street to pick up Mr Tanner in Oxford Street, and then that he ought not be driving when he was driving with Mr Tanner from the Rose Bay Police Station.
The plaintiff drove up his driveway and eventually stopped. That brings me to the need to describe in some detail the area where the plaintiff stopped, where Constable Irwin administered to the plaintiff a roadside breath test and the legal consequences flowing from the events that had happened after the plaintiff stopped, alighted from his vehicle, was confronted by the police and provided a roadside breath sample into a roadside breath testing device.
At [51] above I quoted part of the evidence plaintiff's evidence-in-chief. That evidence raises the issue which I must now determine, the circumstances in which the plaintiff stopped at the top of the driveway "in the middle of the carpark" which clearly raises a legal issue. I just add at this time that the plaintiff used a remote control to open a garage door at the bottom of 2B Victoria Road into which garage he intended to drive. However, he could not enter the garage because there was another vehicle, a small red car, seeking to leave the "carpark", which obstructed the plaintiff's access to his garage such that he needed to stop "in the middle of the carpark".

The plaintiff’s residence

The original 2 Victoria Road has been subdivided. It was clearly subdivided many decades ago. On the original number 2 there appear to have been established eventually three strata plans. 2 Victoria Road fronts onto the southern alignment of Victoria Road. The northerly part of the original property retains the number 2 and is comprised in strata plan 16210. Behind that are two other strata plans, strata plan 1916 which occupies the middle of the original property, and behind that, strata plan 5194. Strata plan 1916 is known as 2A Victoria Road, Bellevue Hill, and strata plan 5194 is known as 2B Victoria Road, Bellevue Hill. A copy of the strata plan for number 2B Victoria Road, together with a covering letter from the Woollahra Municipal Council is exhibit J.
Originally, presumably after the first subdivision, 2B was a “battle-axe” block with a long narrow handle joining the back of the whole of the block to Victoria Road. This block was originally land in vol. 5302 folio 146. The long handle of the “battle-axe” gave rights of carriageway, presumably to both the blocks which became strata plan 1916 and strata plan 16210. One can observe in exhibits 8 and 24 that the original handle of the “battle-axe” did not eventually end up containing the access to 2B. Rather, further rights of carriageway were annexed to 2B, they being right of carriageway D73957 and D656656. One can see in exhibits 8 and 24 that the original handle of the “battle-axe” has been assigned to parking spaces, garden and motor scooter parking spaces. What can be seen as the "driveway" to 2B is comprised in the two additional rights of carriageway, D73957 and D656656. Those rights of carriageway appear to be part of the land occupied by strata plan 1916, being number 2A Victoria Road, Bellevue Hill.
2 Bellevue Hill was assigned the name of Rossmore, 2A was assigned the name Midlothian, and 2B was assigned the name Lammermoor, indicating somebody with Scottish background was responsible for the naming of the three plans. Strata plan 5194, number 2B, Lammermoor is a three-storey building, each storey containing four strata units. The plaintiff's residence was unit 2, being the ground floor unit in the south western corner of the building. Underneath that three-storey building is, on the western side, a substructure/cellar/excavation which contains in essence three garages, each of which has been given a strata unit number. It is clear from the evidence that in addition to being a tenant of unit 2, the plaintiff was also a tenant of one of the garages, that is, of either unit 13, unit 14 or unit 15. There is a common garage door to the three parking spaces comprising those units. The inference to be drawn from the photographic evidence is that Rossmore, Midlothian and Lammermoor were erected in the 1930s and were probably originally company title developments and at least, as far as 2B/Lammermoor is concerned, was registered as a strata plan on 23 December 1970 pursuant to the Conveyancing (Strata Titles) Act 1961.
It is clear from the photographic evidence that there is a long steep driveway from Victoria Road up the side of strata plan 16210/ 2/Rossmore, which leads onto the land occupied by strata plan 1916 which is burdened by the rights of carriageway appurtenant to strata plan 5194/ 2B/Lammermoor.
The plaintiff marked with a red “X” on exhibit 8 the place where he parked his motor vehicle after stopping when being followed by RB15. He also marked with a red circle on the same exhibit the place where he was subjected to random breath testing by Constable Irwin. There was a competing identification of the place where the random breath test was administered contained in exhibit 24 but that marking was not put into evidence, but even if that had been done, it would not cause any material influence or even minor difference. Suffice to say that the random breath testing was conducted on the land which is part of SP 1916/ 2A/Midlothian but on one of the rights of carriageway appurtenant to SP 5194/ 2B/Lammermoor.
Both exhibit 8 and exhibit 24 and various photographs indicate that there are a number of car parking spaces on either land owned by SP 5194 and SP 1916, and that there appears from the photographic evidence to be no marking on the car parking spaces to indicate that it is reserved for one particular unit or another of either number 2A or number 2B. There is a caption on a number of the police photographs, exhibit N, but the captions were not part of the tender.
It is clear from SP 5194, exhibit J, and from exhibits 8 and 24 that there are 12 units in number 2B but only three garages, so that if each tenant had a motorcar, nine of the motorcars would have to be parked in one of the car parking spaces on either SP 5194 or SP 1916. The photographic evidence and also exhibits 8 and 24 indicate that there is no garage available for 2A/ Midlothian, which is also described as a three storey brick unit and probably also contains 12 residential units. Exhibits 8 and 24 indicate that there is a "brick garage" for strata plan 16210. There are 19 car parking spaces marked on exhibits 8 and 24, and those 19 car parking spaces, together with the three garage spaces in 2B, would provide places to park a car for each of 22 units, and between number 2A and 2B, there might be 24 units. The area which the plaintiff described as a “carpark” is properly so described provided one bears in mind that through the carpark spaces is a right of carriageway onto 2B giving access to the three garage spaces under the western side of that building, Lammermoor.

Mr Tanner is an adult. One would expect an adult to be able to fend for himself. Anyone who is arrested is necessarily removed from his or her loved ones, his or her immediate family or acquaintances. That is a normal consequence of arrest, in my view. Insofar as the plaintiff's concern was because of an implicit suggestion that Mr Tanner would be assaulted by other police at the Rose Bay Police Station, I am not persuaded that such occurred. Aggravated damages are merely a form of compensatory damages and I do not intend to award aggravated damages as such, but will award compensatory damages to compensate the plaintiff as fully as damages can for the anxiety and distress, humiliation and deprivation of liberty, to put things shortly, that the plaintiff experienced. As to the refusal to immediately provide toilet facilities to the plaintiff, I accept that it probably did occur, that the police were concerned to only allow the plaintiff to urinate after he had undergone breath testing, but the extent of the plaintiff's urge to micturate was, in my view, stated hyperbolically.
The defendant, through its counsel, Mr Hutchings, engaged in what might be thought to be an exercise in the application of comparable verdicts. He referred me to the decision of my colleague, Judge Elkaim, in Hage Ali v State of New South Wales [2009] NSWDC 266, Fernando v Commonwealth of Australia [2010] FCA 753; (2010) 271 ALR 521, Jindi v State of New South Wales (unreported, 28 March 2014, Sorby DCJ, 2013/74966), and my decision in Tilse v State of New South Wales [2013] NSWDC 265. I also bear in mind what was said in New South Wales v Delly [2007] NSWCA 303.
In Delly, on 20 June 1998, the appellant was arrested at her home in the early hours of the morning and taken to the Queanbeyan Police Station where she arrived at 8.30am. She was taken to the Anti-Theft Squad room where she remained in custody with her seven month old child until she was released at 12.30pm. The police had made a decision at 11am that she would not be charged with any offence, but did not inform her of that fact until shortly before she was released. At the time that the plaintiff was arrested, she was in bed, having been sleeping with her de facto husband. $25,000 was awarded for general damages, $10,000 for aggravated damages, and $25,000 for exemplary damages, together with interest in the sum of $10,360. The award was in respect of her false imprisonment. The Court of Appeal did not interfere with the award of general damages, but Ipp and Tobias JJA reduced the exemplary damages to $10,000. Ipp JA would have allowed no aggravated damages and reduced the award of exemplary damages to $10,000. Tobias JA reached the same conclusion. Basten JA, however, thought the total compensatory damages of $35,000 was appropriate and that no exemplary damages should be awarded. The majority decision therefore was that general damages of $25,000 was acceptable and that no aggravated damages ought to have been awarded and that the exemplary damages should have been reduced to $10,000 which, in the view of Ipp JA, was at "the highest end of the spectrum".
In Hage-Ali, the plaintiff had been named as the Young Australian of the Year for the State of New South Wales. The trial judge described her as "a bright young star whose luminescence was predicted to grow with the National Award on Australia Day 2007". She was arrested for the supply of cocaine and detained for three and a half hours, then released without charge. She was never charged at all. My colleague awarded her $7,000 for compensatory damages and $7,500 for a combination of aggravated and exemplary damages, together with interest in the amount of $4,205.
In Fernando, the Commonwealth was ordered to pay damages to the plaintiff of $3,000. The headnote gives me these particulars:

"The applicant was falsely detained for one day by officers of the Commonwealth. From 6 October 2003, being the day the applicant informed the supervisor of the Perth Immigration Detention Centre he was going to challenge the cancellation of his visa, officers for the purpose of s 189 of the Act who held the applicant in immigration detention knew or reasonably suspected that his visa had been cancelled and that he was on that basis an unlawful noncitizen who was challenging that status...
As the applicant was wrongfully detained for one day, the question of whether his mental condition was exacerbated by the lengthy period of his detention did not arise. The arrest of the applicant occurred at Acacia prison where the affront to his dignity and the humiliation would not have been exacerbated by the location of his arrest. Further, the fact that he had been in detention for more than five years before he was taken into immigration detention would have very substantially dissipated the extent of the affront to his dignity, which would otherwise have occurred, by being taken into immigration detention..."

In Tilse, I held that the period in which the plaintiff was held in custody was excessive. Commencing at [164] I said this:

“164. As a result of my finding, the plaintiff is entitled to recover some damages, as I understand it. That is, the imprisonment for an hour in excess amounted to a period of false imprisonment. Counsel agree that the amount of time the plaintiff was kept in excessive custody, that is, for an extra hour, amounts to a period of false imprisonment for which she is entitled to recover damages. It is appropriate that the State of New South Wales pay the damages because it is the State of New South Wales that did not provide the resources to the Grafton Police that led to the plaintiff being detained in custody longer than she ought to have been detained.
165. The question then becomes what is the quantum of those damages. The authorities make it clear that the length of time is not of particular significance but the shock of being arrested is and a large amount of damages payable for false imprisonment comes from that initial shock. Here, the initial shock was because of a lawful arrest and, therefore, cannot be part of the wrongful imprisonment. The plaintiff was kept away from her home and her daughters and from what she might normally do for an hour between roughly 6.15 and 7.18pm on the evening of Sunday, 1 May 2011. Minds may differ as to the significance of such a period of custody. Doing the best I can, I assess the plaintiff's compensatory damages in the sum of $2,500. This is not a case in which aggravated damages or exemplary damages ought be awarded. There is nothing that Senior Constable Barnier or any other member of the Grafton Police did that in any way aggravates the damages. The damages arise because of inaction on the part of the police because they were involved with other activities. There is no particular conduct of any member of the police force to be condemned or which the Court should reprimand because the incurring of the damages was caused by a very common problem in our community, a lack of resources of Government to remedy mischief.”

In Jindi, the plaintiff was 15 years old at the time of his arrest. He was locked in a police station cell for more than two hours without access to any support person who may have assisted him, in particular, his mother. He only had a bed with a mattress. His Honour awarded $8,000 in damages.
However, every case must be based upon its own facts. At the end of that part of my judgment given on 2 June 2015, I recited the facts which could amount to assault. For that assault, I believe that compensatory damages of $500 are sufficiently adequate. Here, the false imprisonment commenced when the plaintiff was taken into custody on the driveway to his residence. I accept that the presence of the police car with flashing lights in the driveway, together with the “whoop-whoop” signals emitted by RB15 as it followed the plaintiff up the driveway, would have alerted some of the nearby residents to what was going on. I can readily accept that the plaintiff's indignity in being arrested came to the attention of some of his neighbours. I can readily accept that, for a short while at least, there would have been much gossip about what happened to the plaintiff in the early hours of 5 June 2011 which added to his humiliation and indignity. In awarding damages of false imprisonment, it must always be borne in mind that the most severe penalty known to our law is imprisonment. Here, the plaintiff was imprisoned for 1 hour and 32 minutes, in the circumstances which I have sought to outline, subject to my findings as to the overstatement by the plaintiff of the effects of the imprisonment on him. Clearly much younger plaintiffs have been awarded modest sums of damages. However, the young are often more resilient than the old. I would not categorise Mr Rook as an “old man” but somebody who was about to enter or entering middle age. However, he was not dealt with in any contumelious way by either Constable Irwin, Probationary Constable Trifunovic or by Sergeant Savins at the Waverley Police Station. I accept that there may have been a small deposit of urine on the floor of his cell, causing a smell, and a bad odour was acknowledged by Sergeant Savins to be present in the custody area of the police station in any event. Doing the best that I can, I believe an award of $9,500 to be adequate to compensate the plaintiff for all of his unfortunate experiences whilst in custody.
The total of the compensatory damages is accordingly $10,000. The parties agreed that the multiplier for interest was 0.289. That means that the amount of interest is $2,890. The total of those sums is $12,890. This is not a case in which to award exemplary or punitive damages. In the plaintiff’s schedule of damages the plaintiff said that a reason to award exemplary damages was because the defendant was, in substance, although not in form, the New South Wales Police, and that there is a particular need for deterring police officers from acting unlawfully in the execution of their duty. I readily accept that there is a need for deterring police officers acting unlawfully in the execution of their duty. However, as I have already pointed out, the question as to whether the plaintiff was at “home” and therefore whether he could be arrested or not under the Road Transport (Safety and Traffic Management) Act 1999 was a debateable point, as these proceedings have shown.
In the circumstances it is inappropriate, in my view, to award punitive or exemplary damages. Summarised in the plaintiff’s schedule of damages is also this, “the encouragement of police that the plaintiff drive”, part of a thesis which I have not accepted. The final one is “the trap”, meaning some form of conspiracy, and again a reiteration of the alleged encouragement by the plaintiff to drive, facts which I do not accept. I accept that the plaintiff may have been told that, if he didn’t need an ambulance, to take Mr Tanner to a hospital or emergency department, I am not persuaded given the evidence that I have heard that there was an actual encouragement by the police that the plaintiff drive Mr Tanner to a hospital, noting that it is not stated by the plaintiff, or indeed by anybody, that the police asked him how he had travelled from, for example, the Sydney Opera House or Oxford Street to the Rose Bay Police Station.

Ex turpi causa non oritur acito

A remaining matter which I should canvas is the defence pleaded that ex turpi causa non oritur actio. Mr Hutchings referred me to the decision of the Court of Appeal in Hunter Area Health Service and Another v Presland [2005] NSWCA 33 and the decision of the English Court of Appeal in Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249. The Court was there constituted by Schiemann and Sedley LJJ and Sir Murray Stuart Smith. At [57] Sedley LJ quoted from the judgment of Bingham LJ in Saunders v Edwards [1987] 1 WLR 1116:

“…on the whole the Courts have tendered to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted, so long as the Court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the plaintiff’s action in truth arises directly ex turpi causa, he is likely to fail…Where the plaintiff has suffered a genuine wrong, to which the allegedly unlawful conduct is incidental, he is likely to succeed…”

Here, the defendant says that the plaintiff was guilty of driving whilst under the influence of alcohol, he ought not to have been driving, he was guilty of a PCA offence, he escaped “on a technicality”. That may be so, but the plaintiff’s “injury” arose from his unlawful arrest and not directly from his unlawful conduct in driving. There are competing policy considerations. Of course there is the policy consideration that persons who are intoxicated and thereby are rendered less able to drive their motor vehicles should be kept off the streets. There is also the public policy consideration that police powers ought not be exceeded, especially where they deprive the subject of his or her liberty. In my view, this defence must fail.

Civil Liability Act 2002 section 54

The defendant raised a defence under s 54 of the Civil Liability Act 2002. That section carries a heading, "Criminals not to be awarded damages". The section provides this:

“54 Criminals not to be awarded damages
(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that:
(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and
(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.

(2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).
Note : Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant’s conduct constitutes an offence.

(3) A
"serious offence" is an offence punishable by imprisonment for 6 months or more.
(4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981.
(5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.”

The serious offence pleaded by the defendant is driving with a midrange prescribed concentration of alcohol contrary to s 9(3) of the Road Transport (Safety and Traffic Management) Act 1999 which was punishable by imprisonment for a term not exceeding nine months and, probably in the alternative, using or attempting to use a vehicle whilst under the influence of alcohol or any other drug pursuant to s 9 of the same Act which is punishable by up to nine months imprisonment. Of course, the plaintiff was found not guilty of driving with a midrange prescribed concentration of alcohol, but he was never charged with driving whilst under the influence of alcohol, although it would be certainly arguable that he was. However, here I am not persuaded on the balance of probabilities that the plaintiff's conduct, as such, materially contributed to his injury. What caused the injury, namely, his unlawful detention, was the misapprehension of the applicable law by Constable Irwin. In my view, the defence under s 54 of the Civil Liability Act must be rejected.

HIS HONOUR: Any further reasons for judgment required, gentlemen?

WONG: Not from me.

LEE: No.

HIS HONOUR: I have enquired of the solicitors for the parties whether, after three days of giving judgment, any further reasons are required. I am told that none is so required. Before making a final order, I must observe this. The estimate of the case was five days. The evidence took the whole of six days and until the morning tea adjournment on the seventh day, Tuesday 26 May 2015. I was then implored by counsel to give them the rest of the day out of Court in order that they could prepare written submissions to which they could speak on the following day, and that would ensure that the submissions were finished by the end of the eighth day, Wednesday 27 May 2015, and that in the remaining two days of last week, I would be able to give this judgment. On that Wednesday I was implored by counsel to give them further time to complete their written submissions, and I returned to the bench at 11.30. The short oral addresses to the written submissions did not conclude until last Friday at 4 o'clock, the tenth day of the trial. I commenced giving these reasons on Monday afternoon after conducting a call over on Monday morning. It is now 12.25 on Thursday and I have not had a morning tea adjournment so far today. So much for the estimates of legal practitioners as to the length of time that a case will take. This case has taken, all told, 13 days.
For those reasons, I give verdict and judgment for the plaintiff against the defendant for $12,890. I propose that costs follow the event.

DISCUSSION AS TO COSTS BEING STOOD OVER AND AVAILABLE DATES

MATTER INTERPOSED

LUNCHEON ADJOURNMENT

HIS HONOUR: The matter of Rook v State of New South Wales is stood over for argument on costs at 2pm on Wednesday, 10 June 2015.

ADJOURNED TO WEDNESDAY 10 JUNE 2015 AT 2.00PM

Special damage

The plaintiff claimed as a head of damage the actual cost to him of defending the prosecution brought against him in the Local Court. I inadvertently omitted to include that head of damage in my earlier assessment. That at least part of those costs could be awarded to the plaintiff was conceded by the defendant in its oral submissions. Certain costs orders were made in favour of the plaintiff in the Local Court and I am told that one was made against him. All told, the net out-of-pocket expenses of the plaintiff as a result of the prosecution were $12,000. The total of that sum cannot be recovered by the plaintiff because he unsuccessfully defended one of the three charges against him. However, it appears to me from what I have seen of the transcript of the proceedings in the Local Court that the prosecution for that one offence would have only occupied probably a half day of hearing compared to the two days of hearing that actually occurred in the Local Court. That part of the plaintiff's costs could be recovered in these proceedings was conceded by learned counsel for the defendant, Mr Hutchings, who drew to my attention the decision of the Court of Appeal in State of New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353. The decision of the Court was given by Hodgson JA with whom Beazley JA and Hislop J concurred. His Honour, under the heading, "Costs of criminal proceedings", said this:

“66. Mr. Menzies submitted that the costs incurred by the plaintiff in successfully defending the criminal proceedings brought against him should not have been included in the damages, because costs cannot be recovered where they have been previously declined by a court having power to award costs (Hawkins v. Permarig Pty. Ltd. [2004] QCA 76, Lotor v. Deveraux [1832] EngR 436; (1832) 3 B&Ad 343); and because damages can be recovered for wrongful arrest only up to the time of remand or bail (Diamond v. Minter [1941] 1 KB 655).
67. In my opinion, there is no general rule to the effect that a plaintiff cannot recover in civil proceedings the amount of costs incurred in defending criminal proceedings. The issue before a court that decides criminal proceedings is only whether the case against the accused is proved beyond reasonable doubt; and such a court is rarely in a position, in deciding whether to award costs, to determine all the facts relevant to the merits or otherwise of the bringing of the proceedings. Costs are rarely awarded in criminal cases. In civil cases where malicious prosecution is proved, damages routinely include the costs of defending the proceedings.

68. I accept that, where a person is wrongfully arrested on a charge that arises separately from the circumstances of the arrest, there are generally no damages awarded in relation to the progress of the charges after the time of remand or bail, unless malicious prosecution is proved. However, I do not accept that this applies where the charges themselves arise from the circumstances of the wrongful arrest and associated assaults by the police. But for the police assault and wrongful arrest of the plaintiff, there would not have been any charges against him. In my opinion, the charges against the plaintiff were directly caused by the police assaults and wrongful arrest, and that accordingly the costs incurred in defending them can be included in the damages.”

Here, as in Koumdjiev, there was an assault and battery upon the plaintiff as well as a false imprisonment following an arrest which was held to be unlawful.

As I understand it, the total of the plaintiff's out-of-pocket expenses amounted to some $15,000 of which the net sum still outstanding is a sum of $12,000. Doing the best I can it appears to me that the plaintiff is able to recover in these proceedings a sum of $5,000. For those reasons I, pursuant to UCPR r 36.17 I set aside the judgment entered on 4 June 2015.

SUBMISSIONS ON INTEREST ON THE ADDITIONAL SUM OF $5,000

I shall allow interest at 7%. Interest at 7% on that sum for two years is $700.
I give verdict and judgment for the plaintiff against the defendant for $18,590.

**********

Decision last updated: 11 March 2016

Medium Neutral Citation:	Rook v State of New South Wales (No 3) [2015] NSWDC 154
Hearing dates:	18-22 May 2015; 25-29 May 2014; 1-4 June 2015; 10 June 2015
Date of orders:	10 June 2015
Decision date:	10 June 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Verdict and judgment for the plaintiff against the defendant for $18,590
Catchwords:	TORTS – Police torts claims – Assault and battery – Detinue – False imprisonment – Malicious prosecution – Elements of the torts – Defendant required to justify arrest of the plaintiff – Arrest not justified under PCA legislation or LEPRA 2005 TORTS – Malicious prosecution – Elements of malice and absence of reasonable and probable cause – Onus on plaintiff – Prosecutor acted reasonably – Prosecutor’s case arguable WORDS AND PHRASES – “Home” – “Place of abode” – “Usual place of abode” – Road Transport (Safety and Traffic Management) Act 1999 s 17(d); cf Road Transport Act 2013 Sch 3 Pt 2 Div 1 cl 2(e) WORDS AND PHRASES – Insulting language – “fag”, “faggot” – Whether American usage now prevalent DAMAGES – Unintentional torts – Interaction with Civil Liability Act 2002 – Whether plaintiff entitled to aggravated and/or exemplary damages – Comparable verdicts – Special damages – Costs of unsuccessful prosecution may be awarded in a claim for false imprisonment DEFENCES – Civil Liability Act 2002 – s 54 – Ex turpi cause non oritur actio
Legislation Cited:	Civil Liability Act 2002 Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 Law Reform (Vicarious Liability) Act 1983 Motor Traffic Act 1909 Road Transport Act 2013 Road Transport Legislation Amendment (Drug Testing) Act, Number 79 of 2006 Road Transport (Safety and Traffic Management) Act 1999 Torts (Interference with Goods) Act 1977 (UK)
Cases Cited:	A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 Beckett v New South Wales [2013] HCA 17 Cameron v James [1945] VLR 113 Clavel v Savage [2013] NSWSC 775 Director of Public Prosecutions (NSW) v Linnett [2006] NSWSC 1086; (2006) 68 NSWLR 85 Director of Public Prosecutions v Skewes [2002] NSWSC 1008 Fernando v Commonwealth of Australia [2010] FCA 753; (2010) 271 ALR 521 Flight Centre Ltd v Louw [2011] NSWSC 132; (2010) 78 NSWLR 656 Haberhauer v Simek (1991) 9 Petty Sessions Review 4235 Hage Ali v State of New South Wales [2009] NSWDC 266 Hall v Coughlan (1970) 91 WN (NSW) 886 Hamod v State of New South Wales [2011] NSWCA 375 Hunter Area Health Service and Another v Presland [2005] NSWCA 33 Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 Jindi v State of New South Wales (unreported, 28 March 2014, Sorby DCJ, 2013/74966) Merchant v The Queen (1971) 126 CLR 414 Pringle v Everingham [2006] NSWCA 195 R v Clampett (1984) 11 A Crim R 103 R v Vatner (1992) 29 NSWLR 311 Saunders v Edwards [1987] 1 WLR 1116 State of New South Wales v Corby [2010] NSWCA 27; (2009) 76 NSWLR 439 New South Wales v Delly [2007] NSWCA 303 State of NSW v Hathaway [2010] NSWCA 184 State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 State of New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353 New South Wales v Riley [2003] NSWCA 201 State of New South Wales v Williamson [2012] HCA 57; (2012) 248 CLR 417 Tilse v State of New South Wales [2013] NSWDC 265 Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249
Texts Cited:	Australian National Dictionary (Oxford University Press, 1988) Bullen & Leake, Precedents of Pleading (13th) Shorter Oxford Dictionary, 5th Ed
Category:	Principal judgment
Parties:	David Duncan Rook (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Mr P Braham SC (Plaintiff) Mr L Robison (Plaintiff) Mr M Hutchings (Defendant) Solicitors: Marsdens Law Group (Plaintiff) Makinson d’Apice Lawyers (Defendant)
File Number(s):	2014/158703
Publication restriction:	No. Certain names anonymised.