Scarlett-Rhodes v State of Victoria
[2017] VCC 1493
•19 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-03259
| JESSIE SCARLETT-RHODES | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 September, 3, 4, 5, 6, 7 and 10 October and 14 November 2016 | |
DATE OF JUDGMENT: | 19 October 2017 | |
CASE MAY BE CITED AS: | Scarlett-Rhodes v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1493 | |
REASONS FOR JUDGMENT
---
Subject: TORT
Catchwords: Battery – arrest – excessive force
Legislation Cited: Crown Proceedings Act 1958 (Vic); Victoria Police Act 2013; Crimes Act 1958; Summary Offences Act 1966
Cases Cited:Christie & Anor v Leachinsky [1947] AC 573, Biddlev State of Victoria & Ors [2015] VSC 275; Underhill v Sherwell [1997] NSWCA 325; Watkins v State of Victoria (2010) 27 VR 543; Walker v Hamm [2008] VSC 596 ; McIntosh v Webster & Anor (1980) 30 ACTR 19; Perkins v County Court of Victoria (2000) 2 VR 246; Lamb v Cotogno (1987) 164 CLR 1; Jones v Dunkel (1959) 101 CLR 298
Judgment: Judgment for the plaintiff.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacy SC with Ms F A L Ryan | Robinson Gill Lawyers |
| For the Defendant | Ms R Ellyard | Victorian Government Solicitor’s Office |
HIS HONOUR:
1 At approximately 12.30am on 15 December 2012, Constable Aaron Eastley, Sergeant Carl Wagner, Senior Constable Cem Ertekin and Constable Cassie Chirichilli (collectively referred to as “the police defendants”) were members of Victoria Police on patrol at or near a laneway off Brook Street, Sunbury, in the State of Victoria. The plaintiff brings this proceeding against the State of Victoria pursuant to Part II of the Crown Proceedings Act 1958 (Vic) and Part IV, Division 8, of the Victoria Police Act 2013. She claimed damages arising out of her arrest by the police defendants on that date in and near the laneway. The plaintiff claims that as a result of the circumstances in which she was arrested, and subsequently detained, she has suffered injury, including facial and psychological injuries. The plaintiff’s claim for damages is based on causes of action in assault and false imprisonment.
2 It is the plaintiff’s case that she was attending to her ill husband in the laneway when a torch was shone in her eyes by one of the police members. She admits that she used abusive language, the substance of which was:
“‘Get that fucking torch out of my face’. … .”[1]
[1]Transcript (“T”) 39, Line (“L”) 6
3 The plaintiff alleges that she was then arrested by being taken forcefully to the ground and handcuffed, with her hands behind her back (“the first event”). She alleges she was then marched to a divisional van by Senior Constable Ertekin and Constable Cassie Chirichilli and thrown forcefully, headfirst, into the divisional van by Senior Constable Ertekin, with her hands handcuffed behind her back (“the second event”).
4 The plaintiff further alleges she suffered injuries, including facial lacerations and a fractured nose.
5 The plaintiff claims that the arrest of the plaintiff was unlawful on the basis that:
(a) there was no reasonable belief that the plaintiff was drunk;[2]
(b)the plaintiff was not told that she was under arrest and why she was being arrested;[3]
(c)even if lawfully arrested, excessive force was used in effecting her arrest;[4] and
(d)unless the arrest is shown to be lawful, the plaintiff was unlawfully arrested.[5]
[2]Section 461 of the Crimes Act 1958; s13 of the Summary Offences Act 1966
[3]See Christie & Anor v Leachinsky [1947] AC 573, Biddlev State of Victoria & Ors [2015] VSC 275 at paragraph [142]
[4]Section 462A of the Crimes Act 1958
[5]Biddlev State of Victoria & Ors (supra) at paragraph [142]
6 In its Amended Defence filed 29 September 2016,[6] the defendant alleges the following sequence of events which can be conveniently particularised as follows:
[6]At paragraphs [4] and [5]
(a)the plaintiff and her husband, Rhys Rhodes, were observed by Constable Eastley walking out of the Royal Hotel in Brook Street, Sunbury, and into a laneway opposite the Royal Hotel;[7]
[7]PCB 8
(b)Sergeant Wagner, Senior Constable Ertekin, and Constables Eastley and Chirichilli, approached the laneway and observed the plaintiff standing in the laneway approximately 25 metres from Brook Street next to her husband, who was vomiting;
(c)when Constable Eastley shone a torch in the plaintiff’s direction, the plaintiff shouted “fuck off, leave us alone”, whereupon police approached the plaintiff;[8]
[8]PCB 8
(d)Sergeant Wagner asked the plaintiff what she was doing in the laneway, to which she allegedly responded, “Fuck off you cunts and stop shining the torch on us. Give him a break”;[9]
[9]PCB 8
(e)when warned about using indecent language, the plaintiff, who appeared to be intoxicated, responded by saying “fuck off” and “so fucking charge me”;[10]
(f)the plaintiff then allegedly walked towards Senior Constable Ertekin and was told she was under arrest for being drunk in a public place, whereupon she allegedly poked Senior Constable Ertekin in the face and spat saliva on his face while yelling at him;
(g)at or about the same time, Sergeant Wagner arrested the plaintiff’s husband for being drunk in a public place and restrained him with the assistance of Constable Eastley;
(h)the plaintiff then allegedly slapped Sergeant Wagner to the back of the head a number of times, and jumped on his back and grabbed him round the neck, in what appeared to be an attempt to pull Sergeant Wagner away from her husband;
(i)Senior Constable Ertekin and Constable Chirichilli pulled the plaintiff off Sergeant Wagner’s back, whereupon Senior Constable Ertekin and the plaintiff fell to the ground;
(j)while on the ground, it is alleged the plaintiff was resisting police and, accordingly, handcuffs were applied with her hands behind her back;
(k)the plaintiff was taken to the divisional van and lodged into the rear with handcuffs still in place;
(l)the plaintiff remained in the van until an ambulance arrived and paramedics attended to abrasions to her left cheek, left eyebrow and left shoulder; and
(m)the plaintiff was taken home by Sergeant Letchford and released from custody into the care of her friend, Melanie Spencer.
[10]PCB 8
7 The plaintiff identifies the critical facts in dispute as:
(a)whether there was a reasonable basis for Sergeant Wagner’s belief that the plaintiff was drunk so as to justify an arrest;
(b)whether the plaintiff was told that she was under arrest and why she was being arrested;
(c)whether the plaintiff jumped onto Sergeant Wagner’s back and put him in a headlock; and
(d) the manner in which the plaintiff was put in the divisional van.
8 The defendant identifies additional issues in dispute, being:
(a) whether the plaintiff poked Senior Constable Ertekin;
(b) whether the plaintiff spat at Senior Constable Ertekin;
(c) whether the plaintiff used abusive language and insulting language; and
(d) whether the police used insulting language.
9 In addition to the above issues, I consider the following matters are also in issue:
(a)whether the police defendants used unnecessary and disproportionate force in effecting the arrest of the plaintiff, both in bringing her to the ground in the first place and, secondly, when lodging her in the rear of the police van;
(b)whether the police defendants used excessive force by placing handcuffs on the plaintiff with her hands behind her back after she had been first brought to the ground; and
(c)whether the police defendants used excessive force by leaving the handcuffs in place before and after lodging the plaintiff in the rear of the police van.
10 As a consequence of the facts so pleaded, the defendant submits the plaintiff was lawfully arrested pursuant to s15 of the Summary Offences Act 1996 and/or s458 of the Crimes Act 1958 (Vic).[11]
[11]Biddle v State of Victoria & Ors (supra) at paragraph [5](2)
11 Further, it pleads the use of force to effect the arrest of the plaintiff was reasonable and in accordance with s462A of the Crimes Act, and/or the use of force by Senior Constable Ertekin was lawfully done in the defence of Sergeant Wagner, who was being assaulted by the plaintiff.
12 Accordingly, it denies the plaintiff is entitled to any relief at all.
13 Where force has been used against the plaintiff by Senior Constable Ertekin, the burden of justifying that use of force shifts to the defendant.[12]
[12]See Underhill v Sherwell [1997] NSWCA 325 at 10 and Watkins v State of Victoria (2010) 27 VR 543 at paragraph [74]
14 Defence counsel submits that defence of Sergeant Wagner by Senior Constable Ertekin is a lawful justification for the use of force. She concedes the defendant must establish:
(a) that he believed what he was doing was necessary; and
(b) that that belief was held on reasonable grounds.[13]
[13]See Watkins v State of Victoria (supra) at paragraph [71]
15 I accept the defendant’s submission that when making an assessment of the reasonableness of a police officer’s conduct:
(a)the assessment must be made in a realistic manner which takes into account the reality that police officers have to make decisions quickly and under pressure;[14]
(b)the assessment must not be made by reference to hindsight; and
(c)there should be a recognition that arrests are frequently made in circumstances of excitement and turmoil, and it is not fair to make minute retrospective criticisms of what might or might not have been done, or believed in the circumstances.[15] Further, specifically with respect to the administration of handcuffs, I accept that police are entitled to take proper precautions when conveying a person in custody and all relevant circumstances must be considered when determining whether an accused should be handcuffed.[16]
[14]See Walker v Hamm [2008] VSC 596 at paragraph [55]
[15]See McIntosh v Webster (1980) 43 FLR 112 at 28
[16]See Perkins v County Court of Victoria (2002) 2 VR 246 at paragraph [44]
16 The defendant, in conceding that the plaintiff was arrested by being taken forcefully to the ground and handcuffed, with her hands behind her back, submits that the use of force was justified because:
(a)the plaintiff was assaulting Sergeant Wagner as he tried to arrest her husband;
(b)Senior Constable Ertekin was acting in defence of Sergeant Wagner; and
(c)the degree of force used was reasonable and in proportion to the danger being guarded against.[17]
[17]Paragraph [10] of the defendant’s written submission
17 The defendant further submits that I ought not to be satisfied that the allegations consisting of the second event have been proved.
18 In terms of the allegation of false imprisonment, the defendant concedes it bears the onus of proving justification for that imprisonment which, in the circumstances of this case, is made out by either s15 of the Summary Offences Act, in circumstances where a belief was formed on reasonable grounds by Sergeant Wagner that the plaintiff was drunk, and/or by s462A of the Crimes Act, in circumstances where the plaintiff had assaulted a police officer and interfered with the arrest of her husband.[18]
[18]Paragraphs [13] and [14] of the defendant’s written submission
19 It would appear that, in the circumstances of this case, the use of force by Senior Constable Ertekin in effecting the arrest of the plaintiff, and as a result of either the first event and/or the second event, or both, has led to physical and psychological injury being caused to the plaintiff, such that it is incumbent upon the defendant to prove that the degree of force used was reasonable and in proportion to the danger being guarded against. This requirement would, of course, be extant, irrespective of whether the use of force was being exerted in defence of Sergeant Wagner. It is conceded by defence counsel that if the use of force was not in respect to the defence of Wagner, but for some other purpose, it would be prima facie unlawful.
20 In this action, the plaintiff has denied that she has jumped on the back of Sergeant Wagner, or in any way assaulted or interfered with him. Senior Counsel for the plaintiff submits that I ought to find that the four police officers involved have got together to concoct the scenario that the plaintiff jumped on the back of Sergeant Wagner in order to justify an unlawful arrest. It is conceded by both parties that there can be no mistake with respect to the evidence of all four officers that the plaintiff jumped on Sergeant Wagner’s back, such that a finding that this incident did not happen would necessarily mean that there had been a joint agreement by the police officers to mislead the Court. As stated above, in the circumstances of this case, the defendant has the onus of proof in establishing the facts which gave rise to the justification to arrest the plaintiff in the manner alleged.
21 Defence counsel submits that I should be slow to find any such conspiracy and that the four police officers’ evidence with respect to the allegation the plaintiff jumped on Sergeant Wagner’s back has been persuasively demonstrated in Court, and is consistent with the contemporaneous notes of the three officers taken at the time. It is also submitted that statements made by two police officers in the hearing of the plaintiff’s friend, Melanie Spencer, and the two ambulance officers, is consistent with Sergeant Wagner alleging that he had been assaulted by the plaintiff. Defence Counsel, fairly in my view, has chosen not to attack the credit of the plaintiff on this important issue, but has submitted that such evidence is unreliable in terms of her having been under the influence of alcohol at the time and having admittedly used offensive language to the police. She has also admitted, in cross-examination, that her memory was fuzzy as to issues immediately leading up to her arrest.
22 Senior Counsel for the plaintiff, on the other hand, submits that the plaintiff has steadfastly denied jumping on Sergeant Wagner’s back and, in the context of her admittedly having suffered injury at the hands of Senior Constable Ertekin, it is plausible that they have got their heads together to justify the original arrest.
Preliminary observations
23 The plaintiff and her husband, Rhys Rhodes, were a young married couple of apparent good character, out for a pleasant social evening with two like friends, being Melanie Spencer and Bilal Yakan.
24 All four persons had been drinking for some hours but there is no evidence that any were seriously affected until shortly before the arrest.
25 The four police officers were in two separate teams, being Sergeant Wagner and Senior Constable Ertekin, on the one hand, and Senior Constable Eastley and Constable Chirichilli on the other. The two groups were not known to each other and there was nothing to suggest that they were otherwise than going about their lawful duty, which included patrolling the laneway. The evidence establishes that the plaintiff’s husband, shortly prior to his arrest, was either unwell because of medication, or affected by alcohol, or possibly both. In any event, his state of health was such that he was in a weakened, if not vulnerable, state, and was not acting in an aggressive manner. The observations of the four officers were either stooped over, vomiting, or had vomited, and had perhaps urinated in the laneway.
26 The plaintiff, consistent with her relationship, was tending to her husband in this state while in the laneway.
27 It is common ground that:
(a) Constable Eastley shone a torch in the face of at least the plaintiff;[19]
(b) the plaintiff was asked what she was doing;[20]
(c) the plaintiff was asked for identification;[21] and
(d) the plaintiff uttered the words: “Get the fucking torch out of my face”.[22]
[19]T38, L21
[20]T38, L25
[21]T38, L25
[22]T39, L6
28 Thereafter, the evidence diverges.
The Plaintiff’s evidence
29 In evidence-in-chief, the plaintiff stated:
“I was immediately forced down to the ground [following her choice of language].”[23]
[23]T39, L7-8
30 The plaintiff remembers:
“… a lot of pressure once I hit the ground …
…
…I felt a force on my back and my shoulders and on the back of my neck, I felt something hit the side of my face … I was then pulled up off the ground … whilst I was on the floor I was handcuffed … they … marched me across the road really quickly, opened the back of the van and threw me in head - like front ways. I couldn’t stop myself from falling, so I hit my head directly on the back and my shoulders on the floor of the van.”[24]
[24]T39, L10-31
31 When asked how she was placed in the police van, the plaintiff replied:
“I was pushed in and kind of thrown …
… Excessive force for me to fall forward and smack my head [she was still handcuffed at that stage].”[25]
[25]T40, 20-23
32 Thereafter, the plaintiff stated:
“Everything was black at that stage, I saw a flash just as I made impact. Everything was black. I finally worked it out and realised what had happened and I was in handcuffs and I sat up … with my legs crossed … yelling out … .”[26]
[Her hands were cuffed behind].[27]
[26]T40, L24-30
[27]T40, L30-31
33 Later, the plaintiff stated:
“[My face] was throbbing and it was stinging and I could feel something running down my face, and it was blood … .”[28]
[28]T41, L1-5
34 Further:
“[Outside] I could hear a lot of swearing … and I could hear the officers swearing a lot at everyone around.”[29]
[29]T41, L9-12
35 The plaintiff stated:
“I remember them [police officers] telling her [Melanie Spencer] to fuck off.”[30]
[30]T41, L16
36 In cross-examination, the plaintiff said it was possible that she had told both the paramedics that she had been punched and kicked in the head multiple times.[31] It was then put to her that this was not correct, that she had not been punched and kicked in the head multiple times, and she replied:
“Well, something had hit me in the side of the head … I had been hit in the head multiple times, yeah.”[32]
[31]T59, L28
[32]T59, L30-T60, L5
37 It was further put to the plaintiff, however, her injuries came to be caused, not because of multiple punches and kicks to the head. She replied:
“I believe it was a knee to the head.”[33]
[33]T60, L28
38 Further, the plaintiff agreed that on the same night she had told her friend Melanie, that she had been kicked. She was further asked:
“But you hadn’t been kicked had you?”[34]
[34]T61, L5-6
and she replied:
“No, we make mistakes and sometimes we say – .”[35]
[35]T61, L5-6
39 It was further put that the plaintiff told her general practitioner the following morning at 9.00am that:
“She only remembers the police officer asking for her driver’s licence and then she states that out of nowhere they started kicking her face.”[36]
[36]T62, L1-3
40 It was then put:
“But again, you hadn’t been kicked in the face, had you?”
to which she answered:
“Look, I had been hit in the face and that’s all I knew, okay, and I might have used the wrong phrase, I will admit to that but I definitely had been hit with something.”[37]
[37]T62, L6-11
41 The plaintiff was then taken to a statement that she had made to the Office of Police Integrity on 27 December 2012. It was put:
Q:“You say there: ‘Everything went blank. My vision returned but was blurred and I realised I had handcuffs around my wrist. Everything was still blurry but I could see light. I felt myself being thrown around aggressively with great force’?---
A: Yes.
Q: You don’t say anything there about being kicked or punched?---
A: No.
Q:And it also appears from this that you weren’t able to recall the process by which you ended up having handcuffs on?---
A:I think when I had wrote this by me referring to my vision, I just had a torch shone in my face for a number of seconds so I couldn’t see. In regards to everything being blurry, because everything happened so quickly it was hard to generate what had just actually happened.
Q:But there is nothing here about the process by which you went from standing up with a torch in your face to having handcuffs on, you say, ‘I realised I had handcuffs on’, it appears in this account that you have a missed a bit of time and - - -?---
A:That is my mistake obviously with completing the form.”[38]
[38]T63, L4-24
42 The plaintiff was then taken to a statement she made to Ethical Standards on 28 December 2012, which recorded:
A:“‘About a minute later I saw two male police officers walking towards us in the alleyway. They were shining a torch in my face so I couldn’t see who they were. From this point on my memory is really hazy’?---
…
Q:So this is a reference to your memory being hazy, not your vision, your memory?- - -
A: Yes, okay.
Q:So as I read that what you’re saying is I’m not sure what happened after that, my memory is less than ideal?---
A: M’mm, yes.”[39]
[39]T64, L7-16
43 The plaintiff was then taken to paragraphs 8 and 9 of her statement, where the plaintiff admitted saying “Get the fucking torch out of my face”.[40] It was further put, as follows:
Q:“Then at the beginning of paragraph 9 you say: ‘Pretty much after swearing I don’t remember much, I just remember people grabbing me, I don’t remember how many’?---
A:Once again, it’s the exact same scenario, as things were happening very quickly so I know the two officers that were definitely involved and considering that once I was brought down to the ground I don’t think one could quickly jump up in front and grab Rhys or vice versa, I know that one’s on one side and one was on the other and they were there until I was put in the van.”[41]
[40]T39, L6
[41]T65, L1-10
44 It was further put to the plaintiff:
Q:“Talking about what you know now, I’m asking you to comment on what you put in your statement within two weeks of this incident happening and what you said in this statement within two weeks of the incident happening was firstly, ‘My memory’s really hazy’, and then secondly ‘Pretty much after I swore at the police I don’t remember much’; do you agree those things appear in your statement?---
A: Yes, I agree.
Q:And you put them there because that was the truth, you didn’t have a great memory of what happened, for whatever reason your memory wasn’t great?---
A: Yeah, I agree, I agree.”[42]
[42]T65, L11-122
45 It was then put to the plaintiff that she had given a history to her counsellor, Elise Guymer, at a time approximately a year after the incident. It was put the history recorded was:
Q:“‘Police officers, aggressive, cocky, cowboys shining torch in face, ID, what for’? …
… ‘Drop me to the floor, jumped on my back, five of them kneeling on my back’?---
A: I don’t know about five … That’s not right.
Q:It looks like you said five but that isn’t … [the] case, is it, there weren’t five?---
A: No, there wasn’t five.
Q:Okay. So what I want to suggest to you, Ms Scarlett-Rhodes, is that for whatever reason, and we can get to what the reasons might be, you don’t have a very good memory of what happened in the laneway on that night?---
A: I know what I did and didn’t do.
Q:You don’t have a very good memory, do you, of the entire sequence of events occurring in the laneway and then in a divisional van on that night?---
A:Well, I didn’t have – I couldn’t see from behind me so no, I clearly didn’t have full - - -
Q:I’m not asking you what you had the opportunity to observe, I’m asking you about the state of your memory, and I’m suggesting to you that consistent with what you said in the two statements you made within two weeks of this incident, you don’t have a very good memory of the events that unfolded in which you were a participant on that night?---
A: Do you want me to say yes or no?
Q:You can agree or you can disagree, whichever you feel is the correct answer?---
A: Well, I will agree with you, yes, I will agree.”[43]
[43]T66, L30-T67, L26
Rhys Rhodes
46 The plaintiff’s husband, Rhys Rhodes, gave evidence-in-chief which, in broad terms, corroborated his wife’s account. Under cross-examination, he denied that Sergeant Wagner had said to him that he was under arrest for being drunk in a public place,[44] and he denied that his wife had waved a finger or spat at Senior Constable Ertekin.[45] As to whether the plaintiff had assaulted Sergeant Wagner, it was put to him:
[44]T149, L21
[45]T150, L1-8
Q:“Now, as I understand it, your evidence is that you didn’t see Jessie get taken to the ground but you saw her once she was on the ground, that’s right, isn’t it?---
A: Correct.
Q:You looked up from where you were, and you were able to see that she was also on the ground with police officers restraining her?---
A: Correct.
Q:And so you didn’t see the process by which she was taken to the ground?---
A: No.
Q:But you did see the aftermath where she was on the ground being restrained and being handcuffed?---
A: Yeah.”[46]
[46]T153, L5-15
47 The four police officers all gave evidence that they witnessed or experienced the plaintiff jumping on the back of Sergeant Wagner, which was the substance of the allegation that she had assaulted Sergeant Wagner and thus triggered the right to come to his defence. Counsel for the defendant has submitted that if they conspired together to perjure themselves in this way, it was a conspiracy that was quickly, artfully and implausibly hatched. The contemporaneous notes of Senior Constable Ertekin, Sergeant Wagner and Constable Eastley, which I am satisfied were handwritten shortly after events and not at that stage the subject of collaboration, all described this incident. The running sheet prepared by Constable Chirichilli does not allege such an event which tends, in my mind, to at least find that she could not have been part of any conspiracy as such. In any event, she clearly recollects the fact that the plaintiff jumped on the back of Sergeant Wagner. Although it is not conceded by Senior Counsel for the plaintiff that these notes are in fact contemporaneous, he accepts that the incident fact sheet is a contemporaneous document, and it does assert “assault police”.[47] Further, the Use of Force form also refers to the police having to “drag [the plaintiff] off Wagner”.[48] Further, the allegation that the plaintiff had assaulted police was made to Sergeant Letchford shortly after the event and to the two ambulance officers, Mr King and Mr Tate, who attended within half an hour or so. Defence counsel also relies on the admissions made by the plaintiff in the Magistrates’ Court proceedings, which were made in order to effect a diversion of the charges against her, being two charges of assaulting police, one of resisting arrest and another of being drunk in a public place.
[47]PCB 181
[48]PCB 182
48 There were only six witnesses to the arrest of the plaintiff, four of whom were the police officers who gave positive and unshaken evidence that the plaintiff had jumped on the back of Sergeant Wagner. The plaintiff and her husband, both of whom I find to be honest witnesses, but who were both nonetheless probably affected by alcohol in one way or another on the evening, have a hazy memory, as indicated above on the part of the plaintiff, and being unsighted as to the process by which the plaintiff was brought to the ground on behalf of the husband, lead me to be satisfied that probably the plaintiff did jump on the back of Sergeant Wagner as alleged. In finding thus, I am less than satisfied that the manner of the arrest of Rhys Rhodes was justified in all the circumstances, considering the state of his health and thus his vulnerability, his lack of aggression by word or deed towards the defendants, and the lack of evidence of he, in fact, having uttered any words that would have assisted Sergeant Wagner in forming a belief as to his state of sobriety. This would leave open an interesting question as to whether the plaintiff, assuming the arrest of her husband was unreasonable and, thus, unlawful, was justified in assaulting Sergeant Wagner in the manner alleged. Although the manner of Rhys Rhodes’ arrest has evidentiary value, it is not an essential ingredient of the plaintiff’s case and I do not have to decide the matter.
Was the use of force proportionate?
49 (a) One can accept that Senior Constable Ertekin would reasonably act quickly in coming to the defence of Sergeant Wagner;
(b) Given the plaintiff was a five-foot-one-inch, twenty-seven-year-old allegedly intoxicated female, the circumstances of reasonable force by Senior Constable Ertekin would involve the following considerations:
(i) the state of the husband’s health was such that Sergeant Wagner could have let him go and let Constable Eastley deal with him and thus be able to deal with the plaintiff himself;
(ii) assuming Sergeant Wagner chose not to let go of the husband, as he alleges, this probably indicates the relative urgency as perceived by Sergeant Wagner, and thus ought to be perceived by Senior Constable Ertekin;
(iii) even assuming the plaintiff had “provoked” Senior Constable Ertekin by poking him in the face or spitting upon him, such “provocation” would not justify excessive force being deliberately used to effect the arrest, and would be considered disproportionate;
(c)Accepting, for one moment, the defendant’s submission that the plaintiff’s facial injuries were caused by Senior Constable Ertekin in bringing her to the ground amounts, in my view, to prima facie evidence that excessive force was used, even allowing for the intervention of an unintended fall by both Senior Constable Ertekin and the plaintiff in effecting the arrest.
50 It appears to me that the environment in which the four police officers found themselves with respect to members of the public may have been stressful for them. Nonetheless, I accept the evidence of Ms Spencer that Senior Constable Ertekin repeatedly abused her unreasonably when she was enquiring after the welfare of her friend. She alleges that he repeatedly used profanities towards her, which evidence I accept.[49] I also accept her evidence that Sergeant Wagner was “swearing a lot, really trying to rev Rhys up”.[50]
[49]T171, L12-30
[50]T171, L5
51 I also accept the evidence of Ms Spencer to the following effect: When the plaintiff was in the rear of the van she complained to Ms Spencer as follows:
“… she kind of gestured towards Ertekin and said, ‘He kicked me.’ I asked Ertekin … [if] he did that to her. He just kind of shrugged me off. He said, ‘She resisted’, I said to him that, you know, it was their job to restrain someone if that’s the case, not to abuse them. And he just kind of scoffed, he just kind of laughed at me, he didn’t really say too much after that.”[51]
[51]T173, L4-11
52 Further, I accept the evidence from Ms Spencer, that shortly thereafter, Senior Constable Ertekin pulled her aside and she stated:
“He didn’t grab my arm but he kind of just touched and, you know, I guess gestured me to come off to the side a little bit. So I did. He said to me that now Jessie’s going to tell you that I kicked her and that I did things that aren’t true, that I had to understand she was delusional and I also had to understand that he has kids or a family at home as well. I said to him that it would just be a case of he-said, she-said, that I did believe my friend and that I didn’t want to get involved in his personal matters. So I just left it at that and walked off, I didn’t want to stay there and listen to any more.”[52]
[52]T175, L28 – T176, L9
53 An important ingredient in deciding whether Senior Constable Ertekin acted with unreasonable animus towards the plaintiff concerns the manner in which the plaintiff was “lodged” in the police divisional van. As referred to above, the plaintiff alleges she was effectively thrown head-first into the van, handcuffed with her hands behind her back, such that she felt a blow to her head on some object within the van. Defence counsel fairly concedes that if this behaviour occurred, it would be “disgraceful”. In evidence-in-chief, Senior Constable Ertekin was asked:
Q:“Once you got to the divisional van can you explain to His Honour the process by which she was placed in the divisional van?---
A:Normal process that I would do, Your Honour, is I will sit the arrested person on the back of the van and I just ask them to push themselves in.
… .”
HIS HONOUR:
Q: “Are they facing in or are they facing out?---
A:Facing out, Your Honour. So I will ask them to sit and face towards me and I will just get them to – obviously this is all handcuffed, and just get them to push themselves in.”
MS ELLYARD:
Q:“Why is that the way you approach this?---
A:It’s safer for them.
Q:And is that what occurred on this occasion?---
A:Yes.”[53]
[53]T445, L22 – T446, L10
54 In cross-examination, Senior Constable Ertekin was asked by Senior Counsel for the plaintiff:
Q:“This is an answer to another interrogatory.[54] It said: ‘Ertekin had hold of one of the plaintiff’s arms while Chirichilli opened the rear door of the divisional van.’ Is that correct?---
[54]Interrogatory 5, exhibit ‘V’
A: That is correct.
Q:‘The plaintiff was placed standing upright in the immediate opening to the rear of the divisional van whilst facing forward and the plaintiff entered the rear of the divisional van whilst facing forward by placing her knees inside and shuffling forward unassisted until her whole body was inside’?---
A:That is not correct, Your Honour.”
HIS HONOUR:
Q:“You say she’s facing the other way around?---
A:She’s facing us and she would have been seated on the edge of the van.
Q:Facing you?---
A:Facing us.
Q:And then would have been invited to shuffle backwards with the handcuffs?---
A:That’s correct, Your Honour.
Q:And do you remember that occurring at that time, that she’s facing towards you?---
A:Yes, I do, Your Honour.”[55]
[55]T501, L16 – T502, L3
55 Later, it was put by counsel:
Q:“She claimed she was virtually thrown in the van head-first by you?---
A: That is absolutely incorrect, Your Honour.”[56]
[56]T502, L13-14
56 Later, Senior Constable Ertekin was asked:
“HIS HONOUR:
Q: When you first placed her in the van sitting down facing you?---
A: That’s right, yes.
Q: That’s the first time you noticed injuries?---
A:Yes, because from the laneway walking to the van it was quite dark, Your Honour, so I didn’t see anything at that time.”
MR HORE-LACY:
Q:“Well, what injuries did you note?---
A:Just grazing to the side of the face.”[57]
[57]T503, L5-10
57 Senior Constable Ertekin was then shown a photograph of the plaintiff’s face.[58] It was put:
[58]PCB 77, Exhibit “D”
Q:“You see what obviously there is quite a significant swelling of the left cheek?---
A: Yes.
Q:There was nothing happened on the ground when you arrested her which could explain any of those injuries, is there?---
A:Yes, absolutely, Your Honour, she fell to the ground and it was a bitumen surface.”[59]
[59]T504, L5-10
58 Further, Senior Constable Ertekin was asked:
Q: “So it was just you that took her to the ground?---
A: Yes, as I stated - - -
Q:And I suggest you either kicked or punched her or both while she was on the ground?---
A: Absolutely incorrect, Your Honour.”[60]
[60]T504, L25-27
59 When it was put to Senior Constable Ertekin, concerning the alleged conversation with Melanie Spencer, about the suggestion he said to her that he had kids or family at home and that the plaintiff was delusional about being kicked, he denied any conversation with anyone at that the scene.[61]
[61]T505, L16 and T506, L1-3
60 Constable Chirichilli, in evidence-in-chief, was asked about her observations of the plaintiff’s face immediately after the arrest. She was asked:
Q: “After she was handcuffed what happened to her?---
A:We both stood her up and her partner was also in handcuffs at that point and we [were] walking them over to the vans.
Q: So you say we, who did you walk over there with?---
A: I walked with the plaintiff and Senior Constable Ertekin.
Q: At that time did you get a good look at her?---
A:When we stood her up I saw she had grazes on her left side above her cheek.”[62]
[62]T653, L10-17
61 Later, in cross-examination, Constable Chirichilli was asked about her contemporaneous notes on the running sheet that night. She was questioned as follows:
Q:“… This is the point where the plaintiff’s already in the van and you’re explaining to her why she’s in custody and you write this: ‘Constable Chirichilli searched female, observed blood on left cheek, graze on left eyebrow’, do you see that?---
A: Yes.”[63]
[63]T696, L23-27
62 Although Constable Chirichilli was then cross-examined as to when she first noticed the injuries, it was on the basis, and the assumption, that the injuries were identical on the two various occasions. However, at face value, it would appear that the injury to the left eyebrow was observed after the plaintiff had been placed in the van. In any event, she was asked:
“HIS HONOUR:
Q: “Do you remember walking her back to the van?---
A: Yes, I do, Your Honour.
Q: Sitting here right now?---
A: Yes, I do.
Q: But you don’t remember how she got into the van?---
A:No, I remember I opened the door because I had the keys to the van, Your Honour. I don’t remember how she got in, how she got in herself.
Q:Does that seem a bit strange, that you can remember actually walking her up to the van but you don’t remember how she got into the van?---
A: Well, I didn’t physically put her in.
Q: Did you see her being put in the van?---
A: I don’t recall.
Q: You don’t recall?---
A: No, I don’t recall - - -
Q: You could have been looking anywhere?---
A: Possibly, there was a large crowd gathering.
Q:You don’t know what you observed after you approached the back of the van and opened the door, your memory goes a blank at that point?---
A:It doesn’t go a blank, I just didn’t physically put her in the van so I don’t remember how she got in.”[64]
[64]T697, L7-26
63 In relation to Constable Chirichili not remembering how the plaintiff got in the van, Junior Counsel for the plaintiff questioned her as follows:
“MS RYAN:
Q: In relation to that, can you look at the plaintiff’s court book 17?---
A: Yes.
Q:First of all, do you remember being asked about whether you remember how the plaintiff got into van when you have had conferences in this matter previously?---
A: Yes, I have been asked.
Q:And do you remember being asked about it for the purposes of interrogatories, answering some questions?---
A: Yes.
Q:I will read out to you what answers … [the] defendant has deposed to as to how the plaintiff got in the van. Plaintiff’s court book 17, answer 6: ‘Ertekin had hold of one of the plaintiff’s arms whilst Chirichilli opened the rear door of the divisional van. The plaintiff was placed standing upright in the immediate opening to the rear of the divisional van whilst facing forward, and the plaintiff entered the rear of the divisional van whilst facing forward by placing her knees inside and shuffling forward unassisted until her whole body was inside.’ Then at 7B: ‘The plaintiff entered the divisional van whilst facing towards the front of the divisional van by placing her knees on to the immediate opening of the van and shuffling forward until she was fully inside the rear of the divisional van.’ Now, did you provide those instructions?---
A: No, I don’t think I did.
Q:So those instructions then must have come from one of the other police members?---
A: Possibly.
Q:And out of the police members there that might, who was present when the plaintiff was put into the van?---
A: Myself and senior constable Ertekin.
Q:So is it fair to say that the manner in which the plaintiff was put into the van that the defendant has deposed to, those instructions have come from senior Ertekin?---
A: Possibly, these weren’t mine.”
HIS HONOUR:
Q:“Do you know what you were doing whilst she was entering the van?---
A: Just standing there.
Q: Standing there - - -?---
A: She wasn’t resisting so I –
…
Q:So were you observing her entering the van or were you observing something else?---
A:I don’t recall, Your Honour, I don’t recall how she got in the van at all.
Q:The plaintiff said she was thrown into the van face forward, you don’t know whether that is true or not?---
A: I didn’t see that happen, no, Your Honour.”
MS RYAN:
Q:“So is it the case senior constable, you can’t remember how the plaintiff got into the van?---
A: Yes.”[65]
[65]T697, L28 – T699, L12
64 In circumstances where I consider that the plaintiff was honest in the giving of her evidence in the witness box, and no adverse comment being made in this regard by counsel for the defendant, and in circumstances where she has made admissions against interest with respect to the language she used to the police shortly before her arrest, and in circumstances where she had admitted that her memory was hazy with respect to matters occurring shortly before her arrest, in terms of the manner in which she was placed in the divisional van, her evidence was crystal clear and steadfast. She states she was thrown headfirst into the van with her hands cuffed behind her. She says that her face or head met some hard object within the van, causing everything to go black. In my view, this is consistent with Constable Chirichilli’s different observations of her injuries immediately following being taken to the ground, and soon after she was placed in the van. I find it highly surprising that Constable Chirichilli cannot remember the manner in which the plaintiff was placed in the van, given that she remembers all the matters immediately leading up to that event, and she was the one, in fact, who opened the rear van. I find the evidence of Senior Constable Ertekin, who inferentially gave instructions for the Answers to Interrogatories to the effect that the plaintiff knelt face forwards at the rear of the van and manoeuvred herself forwards, compared to his evidence in the witness box to the effect that she was facing totally the opposite direction and manoeuvred herself backwards into the van, as being totally unreliable. I accept the plaintiff’s evidence in this regard, and I accept both counsels’ submissions that such behaviour was disgraceful.
65 In so finding that Senior Constable Ertekin acted in the manner described, I consider that the evidence given by Ms Spencer concerning the language used by him following the arrest, is consistent with the rough handling administered by him. I also consider that it is evidence corroborating that it is likely that excessive force was used in taking the plaintiff to the ground in the first place and the injuries suffered thereafter, either on the ground, or while in the van, are all as a consequence of disproportionate force used from the beginning of the arrest. It also calls into question the necessity to use handcuffs, given Constable Chirichilli’s evidence that she noticed injuries to the plaintiff’s face immediately after she was stood up in the laneway and that she was not resisting while being marched to the van. Further, the maintenance of handcuffs while her arms were behind her back and being “lodged” in the van, calls into question the necessity to retain same, particularly after further injuries were noticed to the face of the plaintiff by Constable Chirichilli after she had been placed in the van. I consider the continued use of the handcuffs, at least prior to being lodged in the van, in these circumstances to have been excessive and disproportionate.
The Magistrates’ Court proceedings
66 On 14 February 2013, a Charge Sheet and Summons was issued at the Broadmeadows Magistrates’ Court, by which the plaintiff was charged with one charge of assaulting Sergeant Wagner, one charge of assaulting Senior Constable Ertekin, one charge of resisting Sergeant Wagner in the execution of his duty, one charge of using indecent language in a public place and one charge of being found drunk in a public place.[66]
[66]Exhibit 2
67 On 19 July 2013, the plaintiff signed the acceptance of conditions with respect to a Diversion Option being offered by the Magistrates’ Court.[67] Therein, she agreed to:
[67]Exhibit 3
(a)admit the facts of the case with respect to the five charges and acknowledge responsibility for the offences;
(b)accept the conditions as follows:
(i) donate $500 to the Royal Children’s Hospital
(ii) write a letter of apology to Sergeant Wagner
(iii) write a letter of apology to Senior Constable Ertekin
(iv)write a letter of gratitude to the informant, Acting Sergeant Tony Carroll.
68 Letters of apology were duly forwarded by the plaintiff.[68]
[68]Exhibit 4 and Exhibit 8
69 Further and better particulars of the alleged assault against Senior Constable Ertekin were never sought, but may have consisted of any of the following:
(a) poking Senior Constable Ertekin in the face with her finger
(b) spitting in his face; and
(c) scuffling with Senior Constable Ertekin while on the ground.
70 At the first contest mention, the plaintiff was represented by a barrister. Prior to this occasion, the plaintiff had indicated through her solicitor that she would be disputing the allegations.[69] With respect to the conditions that she ultimately signed, she stated: “Unfortunately I had to … sign off on that”.[70] She was asked why it was that she had signed off on the Summary of Charges, and she replied:
[69]T72, L10
[70]T74, L25
A: “Yes, but I felt bullied into that situation, it wasn’t taken lightly.
Q:But nevertheless weighing of all the factors that seemed to you to be relevant, you decided that the best outcome for you was to take the diversion, to admit the conduct and avoid the possibility of a criminal proceeding?---
A: Yes, I didn’t want to get a criminal record for not doing that.
Q:And no doubt. as part of the advice [the barrister] had given you, she had talked to you about what would be involved in contesting the matter?---
A: Yes, financially and how long it would take and so forth.
Q:And she would have told you about the obligation being for the prosecution to proof [scil prove] that you had done the things alleged against you?---
A: Yes.
Q:And they would need to prove that beyond reasonable doubt, she would have told you about that?---
A: Yes, I guess, yeah.
Q:And she obviously also told you about what the consequences for you might be if the prosecution succeeded and you were found guilty of these things?---
A: Yes.
Q: So you elected to admit the conduct and move on?---
A: I thought I had moved on.
Q: Because that was what worked for you to admit it and move on?---
A: At that stage I thought I had moved on.
Q:So what that means, isn’t it, is that when it made sense for other reasons in your life, financial or otherwise, to admit what the police said had happened, you admitted it?---
A: When I – sorry, can you explain that?
Q:When it made sense to you, whether it is for financial reasons or stress reasons?---
A: Yes.
Q:When it was a better outcome for you to admit the conduct, you admitted it?---
A: I did unfortunately.
Q:But now it suits you to deny it because you’re pursuing a financial outcome from the police because of - - -?---
A:It’s not just the finance, it was always about the justice, I tried going down every possible avenue to get some sort of positive outcome and I couldn’t get anything.
Q:Well, the obvious outcome would have been to put the police to the proof. Here we are now, you have to prove what happened?---
A:Were you going to pay my bills? I couldn’t afford it, I couldn’t afford it.”
HIS HONOUR:
Q: “Did you donate $500 to the Royal Children’s Hospital?---
A: I did.
Q: Did you write a letter of apology to the three men there?---
A: I did.”
MS ELLYARD:
Q:“And indeed, as a result of that the diversion plan was marked as complete, Your Honour, about a month later, and the letters of apology that are written are in the court book. In fact they appear – I will take you to them.
At page 195-196, so just before where we have just been?---
A: Yes.
Q: 195 is the letter to Sergeant Wagner?---
A: Yes.
Q:‘My behaviour was out of character and I responded poorly to your attention in the laneway’, is that what you wrote in the apology?---
A: Yes.
Q:And you said the same thing in your apology letter to Senior Constable Ertekin which is on the next page, 196?---
A: Yes, because that was appointed by the judge.
Q:It was also true, wasn’t it, you did respond poorly to police attention in the laneway?---
A:I won’t lie by saying no because I shouldn’t have sworn, it wasn’t right, I shouldn’t have sworn but it was under a moment of stress and they were antagonistic and it was – they were antagonising me.”[71]
[71]T75, L1 – T77, L5
71 Senior Counsel for the plaintiff submits that the admissions referred to above ought to be looked at in the light of the fact that the evidence in this case shows that the Summary of Charges were contrary to the evidence given before me in at least two important allegations, being that the plaintiff poked Senior Constable Ertekin in the face with her finger and spat into his face. Senior Counsel further submits that there can be no Jones v Dunkel[72] inference to be drawn against the plaintiff for the failure to call her barrister regarding the circumstances in which she admitted the charges against her when:
(a)on the defendant’s own case, that at least one of the charges was false; and
(b)the plaintiff was not challenged about the legal advice provided to her, or her reasons for admitting the offences (one of which was false). If there is no issue between the parties on the matter, it is submitted, the rule in Jones v Dunkel has no application.[73]
[72](1959) 101 CLR 298
[73]Heydon, Cross on Evidence (8th ed, LexisNexis Butterworths, 2010) at paragraph 1215
72 I accept the plaintiff’s explanation for the reasons for accepting the diversion and, in my view, the admissions made are not at odds with the ultimate findings I make in this case.
The Plaintiff’s injuries
73 Specialist ear nose and throat surgeon, Mr Simon Braham, gave evidence that he had consulted the plaintiff some six weeks prior to the event, on 29 October 2012. She gave a history of having difficulties breathing through her nose, particularly her left nostril. Mr Braham found that she had a deviated nasal septum. In lay terms he explained: “it’s crooked towards in this case the left-hand side”.[74] The plaintiff also had some cosmetic concerns about the appearance of her nose: “They were to do with the length of her nose, a prominent cartilaginous hump, the fact the nose was not straight and it was asymmetric … .”[75]
[74]T278, L5-6
[75]T278, L10-13
74 Mr Braham again consulted the plaintiff on 7 November 2012, whereupon he recommended surgery to address the breathing difficulties from the deviated septum and he would also try and correct the cosmetic deforming at the same time. The plaintiff told him that she would consider the surgery and get back to him.[76]
[76]T278, L25
75 Mr Braham next saw the plaintiff on 19 August 2013 and told him she had been assaulted in December 2012. The plaintiff, herself, believed that her appearance was worse than it was before the assault. At that point she was very keen to proceed with the surgery. However, Mr Braham considered that much of the deformity was present pre-injury.[77] Mr Braham performed the surgery in January 2014, but upon return thereafter, the plaintiff gave a history of another assault. As a result of that, he performed a further procedure on 4 February 2014.
[77]T279, L11-12
76 Thereafter, Mr Braham saw the plaintiff again on 3 March 2014. At that stage, the plaintiff gave a history that her nose had been fractured as a result of the original assault in December 2012 and Mr Braham was of the view that this could occur with a fall to the ground.[78]
[78]T280, L9
77 Mr Braham then referred to an x-ray report dated 17 December 2012, which stated:
“‘X-ray nasal bones: There appears to be an undisplaced fracture through the nasal bone.’”[79]
[79]T280, L20-21
78 Mr Braham stated that an unplaced fracture meant nose bones had been broken but they had not been displaced from their normal alignment.[80]
[80]T280, L22-23
79 In cross-examination, Mr Braham did not suspect a fracture of the nose when he first saw the plaintiff on 21 October 2012. Further, there was no such suspicion when he saw her again in November of the same year.[81]
[81]T282, L23-29
80 Further, Mr Braham was asked:
“HIS HONOUR:
Q:So that if she had had an undisplaced fracture in December 2012, by January of 2014 would that be clinically significant in any way, in other words is it likely to have healed?---
A: It would heal within six weeks.
Q:So you wouldn’t need to know whether she had had an undisplaced fracture back in December 2012?---
A:It wasn’t going to make any difference to the operation that I had to do.
… .”
MS ELLYARD:
Q:“And so just to be clear, the operation that you performed was the operation to address the concerns that she had initially raised with you as long ago as October 2012?---
A:It was immaterial to me whether it had been injured again or not, the operation I had to do was the operation I had to do.”[82]
[82]T286, L9-23
81 In re-examination, Mr Braham was shown at CT scan of 1 November 2012, and confirmed there was no mention there of a fracture to the nasal bone.[83]
[83]T289, L12-21
82 Further, Mr Braham was asked in re-examination:
Q:“Mr Braham, I would ask you to comment on the following proposition. Accepting that when Ms Scarlett-Rhodes presented to you on two occasions, one in October 2012 and the second in November 2012 and did not report to you of any pain in her nose, if you accept that she suffered an incident on 14 December 2012 in which she sustained two separate blows to her face, the first being when she was taken forcefully to the ground she then felt a blow to her face, and the second when she was handcuffed with her hands behind her, she was placed forcefully into a divisional van unable to break her fall and fell on her face. She then attends a GP three days later, and Your Honour this is at plaintiff’s court book 312, and the GP notes: ‘Nose looks normal but tender’, and on that day she has an x-ray to her nose which reveals the fracture of the nasal bone, are you able to make any comment on the likelihood of [scil or] otherwise of that fracture occurring as a result of the assault on 14 December 2012?---
A: On the basis of everything that I know and consider, I would say it is highly likely that is the case, Your Honour.”[84]
[84]T290, L13 – T291, L3
83 Associate Professor Nick Paoletti, psychiatrist, gave evidence about the psychological impact of the plaintiff’s injuries. He saw the plaintiff on two occasions, being 28 October 2014 and on 22 March 2016. On the first occasion, he detailed an extensive history as to her personal background. With respect to the alleged assault, she gave a history similar to that set out above to the following effect:
“… [the plaintiff] remembered saying to them, ‘Get the fucking torch’ out of her face. Then she went on to say, ‘Then it all happened very quickly, I was down on the ground, pressure on my back. I had at least two police officers on my back and pushing on my head.’ [The plaintiff] realised she was being cuffed and she thought it was ‘Over the top.’ She remembers being in shock because it all happened so quickly. She could not see Rhys. She could see people coming out of the pub and she remembered thinking it was embarrassing, then she remembers being thrown into the back of a police divvy van and her face hitting something. She was then dazed and she remembers coming to. She felt her face which was throbbing and she could feel something rolling down her cheeks.[85]
[85]T197, L9-23
84 Thereafter, the plaintiff saw her own general practitioner and she was prescribed some sleeping tablets. Her general practitioner referred her to a psychologist, Emily Davenport, whom she saw for about nine months. After that, she started seeing another psychologist, Elise Guymer. Associate Professor Paoletti related the plaintiff did not find Ms Guymer as helpful, and when he saw her in 2014, she was seeing a Briony Owens. At that time, she was seeing her every three weeks, but it had been fortnightly earlier on.[86]
[86]T198, L24 – T199, L3
85 Upon filing a report with Ethical Standards, the plaintiff stated she received a letter which led her to believe that the police were “‘Trying to scare her’ because ‘they knew they had made a mistake’”.[87] Thereafter, the plaintiff gave a history that she was sleeping poorly, she was having nightmares and she could not work or functional generally. She could not eat. She was, in her words, paranoid. Her home had been broken into and she feared it was the police. She could not find her handwritten statements from witnesses and nothing was stolen. She feared they were going to come and kill her.[88]
[87]T200, L1-4
[88]T200, L1-10
86 The plaintiff also gave a history of unrelated matters which had aggravated her condition, being two suicides; one was a close friend called Derek, who died in December 2013, and another friend called Matt, who committed suicide in January 2014. She considered that she had recovered from these events and was still getting flashbacks of hitting her head and the feelings that she went through.[89]
[89]T200, L21-29
87 The plaintiff gave a further history as follows:
“She may walk down the street and see a police officer which reminded her of the ones in the incident and then she would get flashbacks. At one stage she could not stand the sight of any police officers. She told me she trusted individuals who might be police officers but she no longer trusted the police force. She told me she knew police officers were decent people but two of the people that night had not been. She told me her appetite had dropped but it had recovered.”[90]
[90]T200, L29 – T201, L7
88 Associate Professor Paoletti made a number of diagnoses on the first occasion:
“Initially following the incident in question, she likely went through an acute stress disorder as diagnosed by her psychologist. That is basically the preamble to a post traumatic stress disorder but if it resolves or attenuates within six months it is just called an acute stress disorder. At that time that I saw here (sic) she had basically an anxiety disorder with features of post traumatic stress disorder and a depressive disorder. I also noted from the psychological reports that she went through a period of symptomatic alcohol abuse after the assault and after the friends’ deaths by suicide, and also that there had been relationship issues with Rhys similarly as a result of this incident, and the DSMV code for that would be relationship distress with spouse or intimate partner.”[91]
[91]T203, L15-30
89 With respect to the incident in question, Associate Professor Paoletti considered:
“Well, my impression was that the incident in question would have been a significant contributing factor to the precipitation of the diagnosis I have just listed primarily because of the circumstances of the alleged assault, and partly because of the physical symptom and I thought that remained a significant contributing factor. There had also … [been] some incidental aggravating factors including the deaths by suicide of two friends and possibly the second assault by a friend.”[92]
[92]T204, L9-18
90 At that first stage, Associate Professor Paoletti considered the prognosis was static for the foreseeable future. He summarised the psychological impact upon her in this manner:
“Well, there had been an issue with trusting police, there had been a reduction in socialisation and capacity for recreational pursuits. There appeared to be an impact on her relationship with her husband and there had been an overall reduction in quality of life.”[93]
[93]T205, L15-20
91 On the second occasion however, being 22 March 2016, the plaintiff related: “My mood is a lot more positive now.”[94]
[94]T206, L9
92 In relation to anxiety, she said:
“Anxiety comes and goes, it is not constant anymore. I have learned coping mechanisms and techniques on how to maintain at the lower level but it does come out.”[95]
[95]T206, L21-24
93 Associate Professor Paoletti further stated:
“[The plaintiff] told me it was triggered by negative thoughts that spiraled. Then she said that the anxiety relating to the incident was still there. From time to time she got – again, she used the term paranoid, about something happening to her because she was taking it further. However, she was trying not to let it overwhelm her. She told me that she was totally avoiding police stations, for example, for witnessing signatures. She told me when she saw police in the street she was still getting a certain amount of anxiety and she did not necessarily trust them. She still believed that there were areas within the police force which are not monitored properly for abuse of power. However, she no longer felt in danger.”[96]
[96]T206, L24 – T207, L6
94 Further, the plaintiff related that:
“[her] appetite was fine and she was no longer eating for comfort. She had delivered a baby eight weeks earlier … Sexual interest was heading for normal. She reported concentration and memory as being good … She was socialising normally and her alcohol intake had normalised to social … Before the pregnancy she was working full duties and she was also studying for a Bachelor of Design and she had completed. In May 2015 she had left the job at the school and started a new job for a fashion house in sales. She had not worked Since November because of problems with the placenta which settled with one week in hospital. She told me Rhys, her husband, was in the workforce and their relationship problems from after the incident had settled after they had some counselling.”[97]
[97]T207, L17 – T208, L10
95 At that stage, in March 2016, Associate Professor Paoletti considered:
“… [the plaintiff] had likely been through an acute stress disorder but had since been suffering from an anxiety disorder with features of post traumatic stress disorder which had somewhat attenuated and also a depressive disorder which seemed to be largely in remission. I made the comment again about the alcohol, symptomatic use of alcohol which seemed to be in remission. I also made a comment about the relationship issues with Rhys which had resolved.”[98]
[98]T209, L10-18
96 As to prognosis, Associate Professor Paoletti thought it was static for the foreseeable future, and for the longer term, he thought it was fair, provided the plaintiff had a satisfactory outcome in quelling her perception of unfairness about the incident in question.[99]
[99]T210, L8-13
97 In her final address, counsel for the defendant made the following submissions, all of which I accept:
(a)the treating surgeon was of the view that the fracture of the nose would have healed by itself in six weeks and that the operation he performed in January 2014 was exactly the same as that he had offered before the incident, and that the fractured nose had made no difference to the operation that he did;[100]
(b)the plaintiff has a genuine continuing feeling that she has been treated badly by police and that she mistrusts police;[101]
(c)the lingering mistrust of police, and some related anxiety relating to that, has affected the plaintiff’s ability to work. She has completed an entire tertiary degree since the event;[102]
(d)the plaintiff has maintained employment and given birth to a child for whom she is now caring, and it would appear that neither of these things have been impaired as a result of the incident;[103]
(e)as at 2014, when the plaintiff sought counselling for the second time, other life events had intervened, being the loss of two friends to suicide and her own serious difficulties with fertility, and the loss of pregnancies;[104]
(f)the plaintiff had elected not to continue treatment from Ms Guymer after relating the above histories; and
(g)at the present time, there is little evidence that the plaintiff had suffered an ongoing effect beyond the low-level anxiety and mistrust of police.[105]
[100]T880, L2-14
[101]T881, L6-9
[102]T881, L10-13
[103]T881, L15-18
[104]T881, L26-30
[105]T882, L14-17
Damages
General damages for the battery
98 I am satisfied that as a result of the incident, the plaintiff has suffered traumatic injuries to her face, including an undisplaced fracture of the nose, cuts to the left eyebrow and the left cheek, swelling of the left cheek, and grazing of the face from the left eyebrow extending back to the hairline, down to the bottom of the left ear, and across the left cheek to the level of the left nostril.[106] I am also satisfied that the fracture to the nose would have healed physically in approximately six weeks’ time and, itself, was not causally related to the surgery on the nose which took place in 2014. I also find it is likely that she suffered grazes on her left shoulder and abrasions to the left elbow. I also accept the evidence of Associate Professor Paoletti that the plaintiff had likely been through an Acute Stress Disorder, but had since been suffering from an Anxiety Disorder with features of Post-Traumatic Stress Disorder, which had somewhat attenuated, and also a Depressive Disorder, which seemed to be largely in remission.
[106]Exhibit “A”, photograph 77A
99 Psychologist, Elise Guymer, came to similar conclusions, but considered that she had responded well to treatment, but did suffer for over a year with depression, anxiety and trauma. Ms Guymer was also of the view that the impact had caused her to cope less well with other psychosocial stressors.[107]
[107]T38, L10-20
100 I accept Senior Counsel’s submission that the plaintiff did not overstate her current psychological condition and she conceded that there had been considerable recovery. I consider that her evidence in this regard was in keeping with her overall honesty in the manner in which she gave her evidence. I accept that she remains affected by subjective feelings of paranoia towards the police in general, but also accept that the conclusion of these proceedings will hopefully have an ameliorative effect on her condition. The purpose of general damages under this head is, so far as money can, to place the plaintiff in the position she would have been had the incident not occurred. Bearing in mind all the matters to which I have referred, in my view, because the plaintiff has been resilient with respect to her employment and other aspects of her life, and because I regard her prognosis as overall reasonably favourable, I consider it is appropriate to assess general damages in the sum of $60,000.
Past medical like expenses
101 I accept defence Counsel’s submission that the operative expenses are probably not related to the event, but in all the circumstances, I will allow the sum of $1,530 for treatment from Briony Owens[108] and $650 for Ranges Psychological Services.[109]
[108]T44, L28-29
[109]T44, L31
Future medical like expenses
102 I do not consider it necessary to make allowance under this heading.
Aggravated and/or exemplary damages
103 Aggravated damages are compensatory in nature. Aggravated damages may be awarded where a defendant has acted with contumelious disregard of a plaintiff’s rights, in an insulting or high-handed way, or with malice.[110] In Lamb v Cotogno,[111] the High Court observed that aggravated damages were awarded for “injury to the plaintiff’s feelings caused by insult, humiliation and the like”.
[110]Luntz, Assessment of Damages for Personal Injury and Death, (4th ed, Butterworths, 2002) at paragraph 1.7.10
[111](1987) 164 CLR 1
104 Exemplary damages (also known as punitive damages), are awarded to punish a defendant and provide retribution, to act as a deterrent to the defendant and others minded to behave in a similar way, and to demonstrate the courts’ disapproval of such conduct.[112] It is a requirement for the award of exemplary damages that the tort which is committed involves deliberate, intentional or reckless disregard of a plaintiff’s interest.
[112]See Luntz (supra) at paragraph 1.7.1
105 The plaintiff, in its written submission, at paragraph 93, sets out a number of matters which is said to warrant a high award of aggravated damages. In the circumstances of this case, and the facts that I have found, I consider that the following matters are pertinent.
(a)Senior Constable Ertekin and Constable Chirichilli were in a position of trust and responsibility in relation to the plaintiff, and the conduct of Senior Constable Ertekin constituted a breach of that trust.
(b)After the arrest was commenced by bringing the plaintiff to the ground, no effort was made by him to assess the plaintiff’s injuries at that stage, particularly with respect to whether the use of handcuffs was required. This is to be contrasted with Constable Chirichilli having noticed that the Plaintiff had suffered facial injuries when brought to ground;
(c)Senior Constable Ertekin threw an injured plaintiff into the divisional van headfirst with her hands cuffed behind her back, such that her head and face struck an immovable object within the van causing further injury;
(d)Senior Constable Ertekin scoffed at Ms Spencer afterwards, when it was suggested that excessive force should not be used;
(e)No apology was extended to the plaintiff for the injuries suffered, and I consider that the injuries, proven, were delivered with considerable force by a man who should have appreciated that the plaintiff was in a vulnerable position by virtue of her stature and size, and, if I was to accept his evidence, by the state of her sobriety;
(f)Senior Constable Ertekin should have been aware that the handling, in general, could cause significant injury;
(g)Having found that the plaintiff was lodged in the van by Senior Constable Ertekin in the manner described, such conduct could only be regarded as “disgraceful”; and
(h)The blow to her head as a result of being thrown in the van was probably delivered with significant force when the plaintiff was believed to be drunk and was little prepared for the strength of the blow, particularly by virtue of the fact that her hands were cuffed behind her. While an allowance could perhaps be made for Senior Constable Ertekin in terms of the time he had to consider and react, nonetheless, his actions were out of proportion to the threat, and constituted a breach of the trust the public places in the police force. The allegation is made out and found in aggravated damages.
106 After careful thought, I am not satisfied there is an adequate basis for award of exemplary damages as a deterrent to other officers. While I have accepted that Senior Constable Ertekin had an honest belief upon reasonable grounds that the plaintiff was assaulting Sergeant Wagner and, further, that his response was out of proportion to the threat he faced, I am not satisfied that warrants particular punishment or retribution, over and above an award of aggravated damages.
107 However, the manner in which the plaintiff was treated immediately prior to and following her incarceration in the police van in the aftermath of her injuries, and the force by which her injuries were suffered, in my view, constitute conduct of an insulting nature and in contumelious regard of the plaintiff’s rights, and ought to stand in an award of aggravated damages. In so finding, I accept, also, the aggressive and insulting language used by, at least, Senior Constable Ertekin, towards the plaintiff during this period.
108 I assess aggravated damages in the sum of $25,000.
109 The damages are thus calculated as general damages, $60,000; past medical and like expenses, $1,180 and aggravated damages, $25,000, and that is a total of $86,180.[113]
[113]The plaintiff also claimed an amount repayable to Medicare of $3,472 and her private health insurer, Latrobe Health Services, of $4,250, but there is no particular breakdown of these figures and I consider they are likely to be related to the operation on the plaintiff’s nose, which I have already found was not related to the incident.
110 I will consult with counsel as to the appropriate orders to be made in this matter.
- - -
0
10
0