Shalhoub v State of New South Wales

[2017] NSWDC 363

District Court

New South Wales

Medium Neutral Citation:	Shalhoub v State of New South Wales [2017] NSWDC 363
Hearing dates:	14, 15, 16, 17, 20, 21, 23, 24, 27 March; 21, 24 November (written submissions); 1 December 2017 (written submissions)
Date of orders:	14 December 2017
Decision date:	14 December 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Judgment for the plaintiff in the sum of $82,018.63. (2)   Defendant to pay the plaintiff’s costs.
Catchwords:	TORTS – intentional tort - false arrest – unlawful imprisonment – assault and battery – police – suspect on reasonable grounds – stalking – arrest reasonably necessary – informed of arrest – as soon as reasonably practicable – reasonable force – continued detention – damages – aggravated damages – exemplary damages – interest – interest on non-economic loss
Legislation Cited:	Civil Liability Act 2002, Pt 2, Pt 7, s 3B, s 5, s 11, s 11A, s 16, s 31, s 51, s 52, s 53, s 54 Crimes (Domestic and Personal Violence) Act 2007, s 8, s 13 Law Enforcement (Powers and Responsibilities) Act 2002, s 99, s 201, s 202, s 230, s 231 Law Reform (Vicarious Liability) Act 1983, s 6, s 8, s 9B Uniform Civil Procedure Rules 2005, r, 14.10, r 14.26, r 14.27
Cases Cited:	Bunyan v Jordan (1937) 57 CLR 1 Chapple v Electrical Trades Union [1961] 3 All ER 612; [1961] 1 WLR 1290 Cheng v Farjudi [2016] NSWCA 316 Christie v Leachinsky [1947] AC 573 Croucher v Cachia [2016] NSWCA 132 Dean v Phung [2012] NSWCA 223 George v Rockett (1990) 170 CLR 104 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; [2003] HCA 33 Goldie v Commonwealth of Australia (No 2) [2004] FCA 156 Gray v Motor Accidents Commission (Gray v MAC) (1998) 196 CLR 1; [1998] HCA 70 Hayer v Kam [2014] NSWSC 126 John Edward Thornton v State of New South Wales [2017] NSWCA 248 Johnstone v State of NSW [2010] NSWCA 70; (2010) 202 A Crim R 422 Konneh v State of New South Wales (No.3) [2013] NSWSC 1424 Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 MacDougal v Mitchell [2015] NSWCA 389 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3 Moses v State of NSW (No 3) [2010] NSWDC 243 Mulholland v Australian Electoral Commission (2004) 220 CLR 181 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57 New South Wales v Zreika [2012] NSWCA 37 Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72 Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 Robinson v State of New South Wales [2017] NSWDC 289 Ruddock & Ors v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262 State of New South v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 State of New South Wales v Exton [2017] NSWCA 294 State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 State of NSW v Abed [2014] NSWCA 419 State of NSW v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 State of NSW v Le [2017] NSWCA 290 State of NSW v McCarthy [2015] NSWCA 153 State of NSW v Randall [2017] NSWCA 88 State of NSW v Smith [2017] NSWCA 194 Thomas v Mowbray [2007] HCA 33 Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40 Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 Zaravinos v State of NSW (2004) 62 NSWLR 58; [2004] NSWCA 320
Texts Cited:	J Fleming, The Law of Torts, 8th ed, LBC (1992) Ritchie’s Uniform Civil Procedure NSW The Holy Bible, King James Version Trindade and Cane, The Law of Torts in Australia, 3rd Edition, OUP (1999)
Category:	Principal judgment
Parties:	Andrew Michael Shalhoub (plaintiff) State of New South Wales (defendant)
Representation:	Counsel: Mr J Sheller (plaintiff) Mr P Menzies QC and Mr C Gregory (defendant)   Solicitors: Greg Walsh & Co Solicitors (plaintiff) McCabes Lawyers (defendant)
File Number(s):	2015/211824
Publication restriction:	None

Judgment

Heading	Paragraph
A. Background	1
B. The Legislation	6
C. The issues	8
D. Suspicion of stalking based on reasonable grounds	15
(a) Stalking	15
(b) The suspicion of Senior Constables Skinner and Poulton	22
(c) Did the arresting officers suspect stalking?	26
(i) Senior Constable Hurney	28
(ii) Constable Dunn	32
(iii) Constable Muir	46
(iv) Leading Senior Constable Love	50
(d) Analysis	54
E. Arrest reasonably necessary to prevent an offence	60
F. Informed of arrest as soon as reasonably practicable	78
G. Was reasonable force used?	91
(a) Blows to the head	92
(b) Officer Dunn’s search	97
(c) Analysis of the search	114
H. Was the period of detention justified?	118
I. Damages	130
(a) Events, injuries and claimed damages	130
(b) The Civil Liability Act 2002	137
(i) Unlawful imprisonment damages	139
(ii) Section 3B(1)(a) of the Civil Liability Act 2002	146
(iii) Intentional act	149
(iv) Done with the intent to cause injury	150
(v) Sexual misconduct	157
(c) Damages for unlawful arrest and imprisonment	162
(d) Damages for assault and battery	167
(e) Aggravated and exemplary damages	170
(i) Relevant principles	170
(ii) Aggravated damages	174
(iii) Exemplary damages	179
(f) Interest and costs	184
J. Orders	187

A. Background

1. Andrew Shalhoub was a young man, 19 years of age, not relevantly known to the police. He was with his friend, Mustapha Neffati, at a gathering in a home located in a cul-de-sac in southern Sydney on the evening of Sunday, 7 June 2015. At 2am on the Monday morning, a public holiday, Mr Neffati contacted his brother, Wassim, with a request to come and collect him and Mr Shalhoub. When Wassim Neffati arrived, Mustapha and Mr Shalhoub got into the car and they commenced the return journey. Mr Shalhoub sat in the rear. As they proceeded from the cul-de-sac onto David Rd, at about 2.20am (Exhibit A, p 149), the police activated flashing lights and Mr Wassim Neffati pulled over. Soon thereafter, Mr Shalhoub and Wassim and Mustapha Neffati were instructed by the police to put their hands out of the car. Mr Shalhoub was then pulled from the car, taken to ground, struck several times, including with blows to his head whilst he lay face down on the ground. He was handcuffed, searched and eventually informed he was under arrest.

2. Mr Shalhoub was informed of his arrest at about 2.40am (Ex A, p 63) or 2.50am (Ex A, p 129) purportedly for stalking a police officer. When the police thereafter realised that Mr Shalhoub could not have been involved in any stalking, he remained under arrest and was at 3.05am (T636/40, Ex A, p 133) taken to a police station, arriving at about 3.25am (Ex A, p 130). A police interview was conducted in connection with an investigation of “resist arrest”, no charges were laid and Mr Shalhoub was released from police custody later that morning, at about 7.40am (Exhibit A, pp 132, 139). He sues for assault and battery and unlawful imprisonment.

3. When Wassim Neffati was roused from his bed at around 2am to collect his brother and Mr Shalhoub, he unwittingly proceeded behind a private vehicle driven by an off-duty female police officer who had just left Revesby Police Station. Senior Constables Troy Skinner and Matthew Poulton also left Revesby Police Station together at the end of their shift at about the same time. They observed a grey Lexus, the car driven by Wassim Neffati, make a U-turn and proceed behind the private vehicle known by them to be driven by the female police officer. The private vehicle, followed by the Lexus, followed by Officer Skinner’s car, proceeded in a fairly direct route to a nearby main road, Davies Rd, where each car turned right, to the south, once the traffic lights turned green. Officers Skinner and Poulton formed the view that the Lexus was following and stalking the private vehicle driven by the off-duty officer, and telephoned the police station to report the suspected stalking. Other police responded.

4. About 3 kilometres from the police station, the private vehicle took an exit from Davies Rd onto Clancy St. Officer Skinner saw a car on Clancy St (T175/44) and assumed that it was the private vehicle containing the female off-duty officer that had taken the exit (T503/35). The Lexus did not follow, but continued a further 7 kilometres along Davies Rd, Alfords Point Rd which it became, New Illawarra Rd which Alfords Point Rd became, and ultimately proceeded to the cul-de-sac off David Rd. The cessation of the Lexus travelling behind the private vehicle, as believed by Officers Skinner and Poulton (T504/38-40), was discussed between Officers Skinner and Poulton but was apparently never relayed by either to any other police officer.

5. Officers Skinner and Poulton gave some information to assist the responding on-duty police officers to locate the grey Lexus, but otherwise had no further involvement in the incident.

B. The Legislation

6. Section 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”) entitles a police officer to arrest a person so long as the police officer suspects on reasonable grounds that the person is committing or has committed an offence and if the police officer is satisfied that the arrest is reasonably necessary because of a matter listed in s 99(1)(b).

“99 Power of police officers to arrest without warrant

(1) A police officer may, without a warrant, arrest a person if:

(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:

(i) to stop the person committing or repeating the offence or committing another offence,

(ii) to stop the person fleeing from a police officer or from the location of the offence,

(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv) to ensure that the person appears before a court in relation to the offence,

(v) to obtain property in the possession of the person that is connected with the offence,

(vi) to preserve evidence of the offence or prevent the fabrication of evidence,

(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii) to protect the safety or welfare of any person (including the person arrested),

(ix) because of the nature and seriousness of the offence.”

7. Section 99(2) provides:

“(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.”

C. The issues

8. In its defence to the amended statement of claim, the State of New South Wales denied any assault (at [4(d)]) and pleaded a lawful arrest (at [14]), particularised as:

“(a) Pursuant to section 99(1) of LEPRA, the plaintiff was lawfully arrested by police who had reasonable grounds to suspect that the plaintiff had committed the offences of:

a. Resist police in execution of duty; and

b. Stalk/intimidation.

(b) Pursuant to section 99(1)(b) of LEPRA the plaintiff was lawfully arrested by police who were satisfied it was reasonably necessary to arrest the plaintiff to:

a. To prevent the continuation or repetition of the offence or another offence.”

9. In the State’s Outline of Closing Submissions (“DCS”), under the heading, “THE DEFENDANT’S CASE”, the State at [2] submitted that:

“The Defendant’s case is that the Plaintiff was under arrest from the time the police stopped the Lexus on David Road. At that time, the police were exercising their power of arrest without warrant under s 99(1) of LEPRA, and believed the arrest was reasonably necessary to prevent the continuation or repetition of the offence or another offence for the purposes of s 99(1)(b)(i) of LEPRA. The Defendant used reasonable force to arrest the Plaintiff, for the purposes of ss 230 and 231 of LEPRA.”

10. The Lexus had voluntarily pulled over in response to flashing police lights. Whether this could, without more, constitute an arrest of the occupants of the Lexus (cf State of New South Wales v Exton [2017] NSWCA 294 at [47]) did not arise because the State’s case was clarified in closing submissions, as follows (T523/35-48):

“The defendant’s case is actually perfectly straightforward and it is simply this. The police had reasonable grounds to suspect that the plaintiff had committed the offence of stalking for the purposes of s 99 of the LEPRA Act.

…

We put it this way. The people who conducted the physical arrest of the plaintiff were the constables who removed him from the vehicle. They were acting under the direction of Mr Love.”

And further:

“The process begins when they stop the car. But obviously at some point the actual arrest begins and that arrest begins when the officers who go to the car acting in accordance with their instructions take steps to remove them from the car and handcuff them” (T525/21-24).

11. Thus, stalking was identified as the suspected offence and a direction by “Mr Love” was identified as the foundation for the arrest. The way the State framed its case (and the forceful removal immediately after the command to get out of the car) removes from consideration the question about whether a direction to get out of the car constitutes an arrest (see Exton at [47]). Leading Senior Constable Luke Love was apparently the ranking police officer at the scene when Mr Shalhoub was pulled from the Lexus (cf T291/30-36).

12. Subsection 99(2) of LEPRA entitles an arresting police officer to rely on an appropriate direction from another police officer. This entitlement does not appear to depend on the justification for the direction. However, the directing officer is precluded from giving a direction unless he or she satisfies the requirements of s 99(1). Thus, it seems that in the event that the directing officer does not satisfy the requirements of s 99(1), the directing officer (rather than the arresting officer) is liable as if the directing officer had committed the unlawful arrest. As the State has accepted vicarious liability for the torts of the police officers, the State alone can be sued for the torts of the police officers (ss 6, 8 and 9B of the Law Reform (Vicarious Liability) Act 1983). The State did not submit that a police officer’s contravention of s 99(2), by giving an unjustified direction, does not give rise to a liability.

13. Mr Shalhoub submitted that the lawfulness of the arrest involves “satisfaction of both statutory and common law requirements”, relying upon Poidevin v Semaan (2013) 85 NSWLR 758 at [21]; [2013] NSWCA 334 and State of NSW v Abed [2014] NSWCA 419 at [87]. But those authorities, relying upon s 4(1) of LEPRA, state that “LEPRA expressly presupposes the continued existence of the police officer's powers at common law”. The continued existence of police powers at common law does not mean that a power under s 99 of LEPRA is lawfully exercisable only upon the fulfilment of both the requirements expressed in the provision and all requirements that may attend the exercise of a common law power. Rather, the lawfulness of the exercise of the statutory power must depend upon the statutory conditions governing its exercise.

14. Accordingly, the issues that arise in the proceedings are as follows:

1. Did a relevant police officer have a suspicion, based on reasonable grounds, that Mr Shalhoub was engaged in the offence of stalking the off-duty female police officer?

2. Was the arrest of Mr Shalhoub reasonably necessary for a reason relied upon by the State and identified in s 99(1)(b)(i) of LEPRA, namely “to stop the person committing or repeating the offence or committing another offence”?

3. Was Mr Shalhoub informed of the reason for his arrest as soon as reasonably practicable?

4. Was reasonable force used?

5. Was the period of detention justified?

6. What is the appropriate compensation for any battery and wrongful imprisonment, including any aggravated or exemplary damages.

D. Suspicion of stalking based on reasonable grounds

(a) Stalking

15. The State asserts that the police officers reasonably suspected the offence of stalking. The State did not identify the relevant statutory provision, but s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (“Crimes DPV Act”) provides for the offence in the following terms:

“13 Stalking or intimidation with intent to cause fear of physical or mental harm

(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both.

(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.

(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

…”

16. Stalking is defined in s 8(1) of the Crimes DPV Act to include:

“the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.”

17. In determining whether conduct amounts to stalking, regard may be had to “any pattern of violence … in the person’s behaviour” (s 8(2), Crimes DPV Act).

18. There was no suggestion by the State that any conduct of Mr Shalhoub or Wassim or Mustapha Neffati involved the watching of, frequenting the vicinity of, or approaching, the female police officer’s place of residence, business or work or any place frequented by her. Nor was there any suggestion of any pattern of violence. Rather, the basis for the suspicion is said to arise from the grey Lexus following the car of the female police officer. The state of mind required by s 99(1) of LEPRA is suspicion, “a state of conjecture or surmise where proof is lacking, or a positive feeling of actual apprehension or mistrust, amounting to a ‘slight opinion, but without sufficient evidence’” (State of NSW v Smith [2017] NSWCA 194 at [78], George v Rockett (1990) 170 CLR 104 at 115).

19. I accept that observing a car following the car driven by the female police officer might provide reasonable grounds for a suspicion that the driver is involved in the “following of a person about”. It might be thought, but it was not argued before me, that the subsequent words of the definition of stalking modify the meaning of “following of a person about”. That is to say, following the person alone might be insufficient; the “following” must be “about…the vicinity of…a person’s place of residence, business or work”. Whether the “following” is, on a proper construction of the stalking definition, subject to this geographical limitation is debatable. Perhaps the repeated definite article (“the following…or the watching”) suggests that the residue of the definition, after “frequenting of”, does not modify the meaning of the initial words. And the statutory definition of stalking is inclusive only, and the general meaning of the word does not import any relevant geographical limitation.

20. These matters suggest that “following … about” simpliciter is part of the meaning of “stalking” under the Crimes DPV Act. But it does not matter because the “following … about” here was seen to have commenced near to, and thus, in the vicinity of, the Revesby Police Station which was the female police officer’s place of work.

17. Nevertheless, stalking itself is insufficient to establish the offence. Section 13(1) of the Crimes DPV Act requires stalking, like intimidation, to be accompanied by the stated intention: to cause a fear of physical or mental harm.

(b) The suspicion of Senior Constables Skinner and Poulton

22. Officer Skinner gave evidence of believing that the grey Lexus was following the private vehicle (T182/16) until the Clancy St exit (T504/37). Officer Poulton gave evidence that it was “our belief” that the off-duty officer was being followed (T226/42), again until the Clancy St exit (T249/15) and that the grey Lexus needed to be stopped “so that we could work out what was going on” (T226/40-45). Neither Officer Skinner nor Poulton gave any evidence of their belief about an intention in the driver of the grey Lexus to cause fear of harm. Evidence was given about the behaviour of the Lexus: speeding, slowing down, momentarily coming alongside and then keeping a distance from the private vehicle. But, so far as the evidence reveals, none of their observations indicated anything more to Officers Skinner and Poulton than that the Lexus was following the private vehicle.

23. I accept the evidence of Officers Skinner and Poulton that until the Clancy St exit, they believed that the grey Lexus was following the private vehicle. Once the private vehicle took the exit on Clancy St, they saw that the grey Lexus did not take that exit but proceeded further down Davies Rd/Alfords Point Rd/New Illawarra Rd, past other exits, for some 7 kilometres. They accept that they did not then believe that the grey Lexus was following the private vehicle (T249/13-16; T249/33-35; T504/36-40). In my view, there was no longer a reasonable basis for the officers to suspect that the grey Lexus had been “following” the private car “about”.

24. Nor am I satisfied that at any time Officers Skinner or Poulton believed or suspected that the occupant (or occupants) of the grey Lexus was (or were) following the private car “with the intention of causing fear” of harm. Neither gave evidence of this suspicion or belief. Almost invariably the Lexus was observed to be some distance behind the private car, and nothing in the conduct of the Lexus was observed that had the capacity, let alone the likelihood (cf s 13(3), Crimes DPV Act), to cause fear in the off-duty officer in the private car. The officers made no contact with the female police officer driving the private vehicle, and it was not suggested that she was even aware of the grey Lexus, let alone in fear of harm. While actual fear of harm is not necessary to establish the offence (see s 13(4)), the absence of any enquiry of the police officer, and the absence of direct evidence by either Officer Skinner or Officer Poulton about their belief in this regard, left me unwilling to infer and accordingly unpersuaded that they had a belief or suspicion about an intention to cause fear of harm in the off-duty female police officer. And I was also unsatisfied that there were reasonable grounds for such a suspicion.

25. However, that Officers Skinner and Poulton did not have the reasonably based suspicion of an offence required for an arrest under s 99(1) of LEPRA is not determinative. They were not the arresting officers, nor did either of them direct the arrest. Attention must focus on the officers engaged in that conduct.

(c) Did the arresting officers suspect stalking?

26. The State’s written submissions assert that “the police officers had reasonable grounds to suspect” the offence of stalking (DCS at [10]). But s 99 does not concern itself with police officers generally, but with a police officer involved in an arrest.

27. The arrest was effected by Constables James Dunn and William Muir, assisted by Senior Constable Ryan Hurney. None of these officers had observed the grey Lexus following the private vehicle or had personal knowledge of any stalking. Accordingly, they could only be empowered to effect an arrest if (among other matters) either:

1. they received information sufficient to provide reasonable grounds for a suspicion, and they did suspect, that Mr Shalhoub had committed an offence (see s 99(1)(a) of LEPRA); or

2. as the State’s final oral submissions maintained, they were directed to arrest Mr Shalhoub. As I have indicated, this direction needs to be by an officer who had suspected on reasonable grounds that Mr Shalhoub had committed an offence (s 99(2) of LEPRA).

(i) Senior Constable Hurney

28. Officer Hurney assisted Officer Muir and Officer Dunn when they were removing Mr Shalhoub from the vehicle. He heard a police officer say “Get out, get out of the car” (T286/45; T288/27). He gave an affirmative answer to the leading question asked in examination-in-chief: “Was your intention at the time that you handcuffed them to arrest them?” (T298/13), although Officer Hurney did not handcuff anyone: he said Officer Muir handcuffed Mr Shalhoub (T292/20). Officer Hurney was asked whether he was acting upon his own initiative or under the direction of someone else, and answered, somewhat non-responsively, that the “handcuffing of the individuals was immediate, it was an immediate response once the vehicle had stopped and the other police arrived” (T297/46-49). He then answered affirmatively the leading question: “But you didn't have an instruction to do it, you did it” (T298/2). He referred to information that “they [presumably the occupants of the grey Lexus] were following an off duty police officer who had just left the police station” (T298/10).

29. Officer Hurney accepted that prior to his involvement he had no idea how many people were in the car, whether they had been in the car earlier, when it may have been following a police officer, and that there had been no discussion between the police officers as he approached the car (T306/19-43).

30. I was reluctant to accept Officer Hurney’s answers to leading questions as sufficient evidence of whether the arrest resulted from a direction, or from the information he had received over the police radio. However, Officer Hurney had received information and may have suspected that an offence had been committed on the basis of that information, and when asked why he was “doing this” (removing and restraining Mr Shalhoub), he referred to the radio information that “they were following an off duty police officer who had just left the police station” (T298/10). It follows that Officer Hurney did not act on a direction. He may have had reasonable grounds to suspect an offence, on the basis of the radio information, but as he gave no evidence of his precise suspicion, I would be disinclined to infer it. In any event, that was not the case the State ultimately put in its closing oral submissions.

31. Officer Hurney came to the aid and assistance of Officers Muir and Dunn as they were in the process of removing Mr Shalhoub from the Lexus. He neither handcuffed Mr Shalhoub nor uttered words of arrest, nor gave any directions about the arrest. Although he assisted, it would not be correct to describe him as the arresting officer. His denial that he was acting under direction is not fatal to the State’s case because he was not the principal arresting officer.

(ii) Constable Dunn

32. Officer Dunn was informed that an off-duty police officer was being followed home. Officer Dunn travelled with Officer Love and Leading Senior Constable Jennifer Casey to the scene with lights and sirens on. He was directed to the location of Wassim Neffati’s vehicle and said that the Lexus stopped on David Rd, 20 or 30 metres from the cul-de-sac. Officer Love then said, “Get them all out of the car” (T336/26). Officer Dunn referred to the actions of Officer Hurney, but from the evidence of Officers Hurney and Muir, it is apparent that Officer Dunn has confused the two. Officer Dunn said he heard “Officer Hurney” ask Mr Shalhoub twice to get out of the car, and when Mr Shalhoub refused and grabbed the seatbelt, Officer Dunn and, as he recalled it, Officer Hurney pulled Mr Shalhoub from the car and onto the ground facedown. Officer Dunn was subsequently involved in striking Mr Shalhoub as he attempted to have Mr Shalhoub handcuffed. Officer Muir handcuffed Mr Shalhoub and subsequently Officer Dunn conducted a body search.

33. Accordingly, there may be two bases for Officer Dunn to exercise the power of arrest: either he received information from another officer and on that basis suspected on reasonable grounds that Mr Shalhoub had committed the offence of stalking with intent (under s 99(1)(a)) or he was directed to arrest under s 99(2) as the State submits.

34. The first possibility raises for consideration whether information from another police officer may be sufficient to produce in the arresting officer the suspicion on reasonable grounds required under s 99(1) of LEPRA. There can be little doubt that it could be sufficient. Police officers must commonly rely on information supplied by others; it cannot be supposed that they can only arrest for offences that they have personally witnessed. And if information from members of the public may be sufficient to enliven a reasonable suspicion, so also may information from other police officers. Unless Officer Dunn was aware of matters that cast a significant doubt on the source or content of the information he received, he was entitled to rely upon it, both to believe or suspect that it was true, and to proceed on the basis that the information constituted reasonable grounds for the belief or suspicion it engendered. This is so even if the information was wrong.

35. The accuracy of the information conveyed by Officers Poulton and Skinner or the information conveyed to Officer Dunn is not strictly relevant. Although the State is sued as the defendant, it is because of its vicarious liability for any battery or unlawful arrest by a police officer, not because of any negligence either by the State or by a police officer.

36. Officer Dunn was informed by police radio that “Cars to start making their way to Revesby. An off duty police officer is being followed home” (T334/40). This information constituted reasonable grounds for him to suspect that the off-duty female police officer was being followed.

37. Was this sufficient information to constitute reasonable grounds for a suspicion of the offence of stalking with intent under s 13 of the Crimes DPV Act? Officer Dunn gave no evidence of being informed that the following was from the police station, but he was told of the officer being “followed home”, so that if the offence of stalking is geographically confined to the locations specified in s 13, there is a reasonable basis for Officer Dunn to suspect that stalking has occurred.

38. There needs also to be a reasonable basis for a suspicion of an intent to cause fear of harm. But that cannot depend on whether information of every element of the offence was expressly relayed to Officer Dunn. Whilst I do not think that there were any grounds for Officers Skinner and Poulton to have a suspicion of intent to cause fear of harm in the driver of the Lexus, police information that an off-duty officer is being “followed home” is sufficient, in my view, for a reasonably based suspicion of an offence of stalking under the Crimes DPV Act, including of the required intent. Receipt of information comprising an abbreviated description of a type of offence together with a call to respond is a sufficient basis (in the absence of other information) for a reasonable suspicion of that offence.

39. Officer Dunn did not give evidence of holding any belief or suspicion that the occupants of the Lexus were stalking or had the requisite intent. In the absence of evidence from him on that matter or some explanation for its absence, I would not infer this belief or suspicion. Moreover, Officer Dunn testified that while he got Mr Shalhoub out of the car because he was told to do so, he had no “intention in his own mind” as to what he would do once Mr Shalhoub was out of the car (T344/30).

40. A suspicion of an offence was not why Officer Dunn pulled Mr Shalhoub from the car. Rather, Officer Dunn said that he did so because he was told to do so by Officer Love (T344/3-24). In other words, he was acting under the direction of another police officer, and his conduct falls to be considered in the context of s 99(2).

41. Officer Dunn relied on the direction of Officer Love to remove Mr Shalhoub from the car. While Officer Dunn’s forceful removal of Mr Shalhoub from the car might have been properly based on a direction from another police officer, the continued confinement of Mr Shalhoub after he was outside the car is not the subject of any evidence from Officer Dunn. It is neither based on a direction formally to arrest, detain, subdue or restrain Mr Shalhoub, nor on a reasonably based suspicion that he needed to do that under s 99(1) or (2) of LEPRA.

42. Both Officers Hurney and Dunn accepted that the word “arrest” was not spoken until sometime after Mr Shalhoub had been handcuffed. There is no evidence of an instruction to “detain” in specific terms.

43. Could a direction to “Get them out of the car” involve not merely removal from the car but arrest or detention? On the one hand, no specific form of words is prescribed in s 99(2) of LEPRA for a police officer to direct an arrest. On the other hand, there seems to be a significant difference between a direction to “Get them out of the car” and a direction to “arrest them” (cf Exton at [47]). It may be that the substance of the direction can be inferred as much from what was understood as from what was said. But Officer Dunn did not understand that he was directed to arrest. Whatever his later conduct reflected, which was not attributed to any direction, his evidence was clear about his intention when Mr Shalhoub was out of the car: he had no intention of what he would do. He had no intention to arrest, and therefore I must infer, he received no direction to arrest.

44. I am not satisfied that once Mr Shalhoub was out of the car, Officer Dunn was entitled to arrest him. Officer Dunn did not, at the time, consider the matters in s 99(1) of LEPRA, and his evidence of an absence of intention of what he would do with Mr Shalhoub once he was removed from the car precludes a finding that he was then acting pursuant to the direction of another officer.

45. Officer Dunn might have had a basis to arrest Mr Shalhoub for resisting his direction to get out of the car, but he gave no evidence of this. I cannot infer that he had the reasonable suspicion and the satisfaction so as to satisfy, respectively, s 99(1)(a) and (b) of LEPRA, when he is silent on the matter.

(iii) Constable Muir

46. Officer Muir gave evidence that he heard a message that an off-duty police officer was being followed home. When he arrived at the scene, he said, Officer Love instructed him to “Get them out of the car on the ground” (T371/44). The words “on the ground” might imply that the direction encompasses that the persons in the car must be subdued and be put under the control of the police, acts which might show both the intention and submission sufficient to constitute an arrest (see Smith at [137], Exton at [42]). The evidence of Officer Muir conflicts with Officer Dunn as to whether the words “on the ground” were used. Whilst others, like Officer Hurney, gave evidence of hearing “get out of the car”, no one else referred to hearing “on the ground” stated by Officer Love (cf T440/16). No one else gave evidence of hearing the direction from Officer Love, and Officer Love gave no evidence of giving any direction.

47. Like Officer Dunn, Officer Muir gave no evidence of what he believed or suspected. Although Officer Muir gave no evidence of precisely what prompted his action in removing Mr Shalhoub from the car, his conduct followed immediately after the direction from Officer Love. I infer that he was acting on that direction of Officer Love, which was to get the rear passenger out of the car.

48. Although Mr Shalhoub testified to the contrary (T71/35), neither Officer Muir nor Officer Dunn gave evidence of immediately getting Mr Shalhoub “on the ground” once he was removed from the car. Officer Dunn said that he had hold of Mr Shalhoub, who was standing up and when Mr Shalhoub refused to move when told, Officer Dunn pulled him and they fell over. Officer Muir said that, in response to Officer Love’s direction, he said, “Mate, hop out of the car” (T371/50) and subsequently, when Mr Shalhoub was out of the car, “as he's standing up, him and Constable Dunn have gone - fallen to the ground” (T372/29).

49. Officer Muir’s account of his conduct is not consistent with following a direction to “Get them out of the car on the ground”, but is consistent with Officer Dunn’s account of the direction. In addition, Officer Dunn travelled with Officer Love and so was likely nearer to him when the direction was given. These matters, and my concerns about Officer Muir’s evidence concerning the record of interview (considered below), cause me to prefer Officer Dunn’s recollection of what was said by Officer Love. I do not accept that the direction from Officer Love embraced getting Mr Shalhoub onto the ground.

(iv) Leading Senior Constable Love

50. Officer Love received a telephone call concerning a suspect vehicle that may have been following a police officer. He proceeded under lights and sirens to the location of the suspect vehicle and received “updates” while travelling. When he arrived in David Rd, either Officer Skinner or Officer Poulton pointed out where the grey Lexus was located. Officer Love saw that it was stationary.

51. Officer Love then removed the front seat passenger from the vehicle with the intention of placing him under arrest, and that passenger was handcuffed.

52. Officer Love gave the following evidence:

“Q. What did you do at that time [after he arrived]?

A. I went with Leading Senior Constable Casey and myself and removed the front passenger seat - passenger - front passenger from the vehicle.

Q. What was your intention at that time by removing them?

A. To place him under arrest.” (Underlining added, T492/45-50).

53. Officer Love gave no evidence about the direction that was heard by Officers Muir and Dunn. He was not asked specifically about it.

(d) Analysis

54. I am persuaded that Officer Dunn and Officer Muir forcefully removed Mr Shalhoub from the rear passenger seat of the car on the instruction of Officer Love. Mr Shalhoub was thereafter brought to the ground. Although Officer Love had the intention to arrest the passenger with whom he dealt, there was no direction to that effect to the other officers. Officer Love gave no evidence of his intention in relation to the other officers or the other occupants of the Lexus. Officer Dunn and Officer Muir gave evidence of the direction by Officer Love, but on the direction I have found, the arrest of Mr Shalhoub could not be justified by it.

55. As Officer Love’s direction prompted the removal of Mr Shalhoub from the Lexus and a different view may elsewhere be taken on the nature of that direction, I propose to consider the issue that arises if Officer Love did direct the police officers to arrest Mr Shalhoub. In other words, was Officer Love entitled to arrest Mr Shalhoub, so as to satisfy s 99(2) of LEPRA?

56. In evidence in chief, Officer Love accepted the suggestion that he had received a telephone call “concerning a suspect vehicle that may have been following a police officer” (T491/26) and that he received “updates” (T491/47). The form and content of this evidence was not persuasive that Officer Love had a suspicion on reasonable grounds that Mr Shalhoub had committed the offence of stalking under s 13 of the Crimes PVA Act. Officer Love’s reponses to leading questions lessened their value. He gave no evidence about what were his suspicions, if he had any, about the rear seat passenger, Mr Shalhoub. His lack of detail about the content of the “updates” left open whether and when he became aware that the Lexus was not following the police officer, or that Mr Shalhoub was not in the car during the alleged following. His failure to give evidence about any suspicion or its basis (and the failure of the State to explain that absence of evidence) preclude an inference that he did have a reasonably based suspicion. Officer Love’s evidence of his intention to arrest the front seat passenger in response to a question about all of the passengers (quoted above) emphasises his lack of intention about Mr Shalhoub.

54. Further, Officer Love’s acceptance of other leading questions about “at some time” becoming aware that only one person was in the Lexus when the off-duty police officer’s car was being followed, without evidence of when Officer Love became so aware, tends to render more uncertain whether the requirements of s 99(2) of LEPRA were satisfied in the arrest of Mr Shalhoub.

55. Thus, Officer Love gave no evidence about his suspicion generally, about his suspicion concerning the rear seat passenger specifically, or about the basis of any suspicion, and such evidence as he did give about the rear seat passenger tended to exonerate Mr Shalhoub. I am not satisfied that Officer Love had a suspicion that the rear seat passenger, Mr Shalhoub, had committed the offence of stalking with intent.

56. In summary then, my findings are:

1. neither Officers Muir and Dunn were directed to arrest Mr Shalhoub; and

2. none of Officers Love, Muir or Dunn suspected on reasonable grounds that Mr Shalhoub had committed an offence.

E. Arrest reasonably necessary to prevent an offence

60. Section 99(1) of LEPRA requires, for an arrest to be lawful, that the arresting or directing police officer is satisfied that the arrest is reasonably necessary for one of a number of specified reasons. The question of reasonable necessity only arises if, contrary to my findings, Officer Love gave a direction to arrest and had a suspicion on reasonable grounds that Mr Shalhoub had committed an offence or alternatively if Officers Muir and Dunn had such a suspicion. Thus, whether Officers Love, Muir and Dunn were satisfied of the reasonable necessity of arrest is to be considered.

61. The expression “reasonably necessary” was considered in Thomas v Mowbray [2007] HCA 33. In some contexts, “reasonably necessary” may refer to what is required for reasonable protection (see Thomas at [21]-[25]). At [490], reference was made to the judgment of Gleeson CJ in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 199-200 [39] where “necessary” meant not “essential or indispensable” but “reasonably appropriate and adapted”. The adjective “reasonably” in this case tends to buttress such a construction.

62. While the term “reasonable” often imports some level of objectivity, in this context it moderates the meaning of “necessary” and makes clear that something less than what is essential is required. Here “reasonably necessary” concerns the satisfaction of the police officer: whether the police officer is satisfied that the arrest is “reasonably necessary” or “reasonably appropriate and adapted” to stop the repetition of the offence. Thus, “reasonable” in this context does not import an objective element. It is “not what the judge thought, but what the officer thought was reasonably necessary in the circumstances” (see State of NSW v Randall [2017] NSWCA 88 at [38] and also [142]).

63. No officer gave evidence concerning the reasonable necessity for the arrest. It may be accepted that stalking a police officer with intent to cause fear of harm is a serious offence, and that a police officer could be satisfied that, because of the nature and seriousness of that offence (one of the specified reasons in s 99(1)(b)), an arrest is reasonably necessary. But this is a matter on which the police bore the onus of proof, and there was no evidence that any police officer had the relevant satisfaction. Further, this reason was not pleaded, and is contrary to particular (b) in [14] of the defence.

64. There are other possible reasons specified in s 99(1)(b) of LEPRA that might have application to the circumstances of this case: to stop a person fleeing, to establish a person’s identity, to obtain property connected with the offence, or to preserve evidence, but none were the subject of any submission, pleading or evidence. Officer Poulton (T252/7) and Officer Skinner (T504/42-57) gave evidence that they believed the vehicle should be stopped to respectively “work out what was going on” (T226/45) or ascertain the occupants of the vehicle. But they were not involved in the arrest of Mr Shalhoub, nor did they give evidence of being satisfied that an arrest of Mr Shalhoub was reasonably necessary.

65. No explanation was proffered as to why the officers gave no evidence about the necessity for arrest. Since this question concerned an officer’s thoughts, only the officer could give relevant evidence. That Officer Love, for example, intended to arrest the front-seated passenger does not, by itself, persuade me that he was “satisfied that the arrest [was] reasonably necessary”, less still that it was reasonably necessary for one of the reasons specified in s 99(1)(b) of LEPRA.

66. The State pleaded (at [14] particular (b)) and submitted that the specified reason for the arrest under s 99(1)(b) of LEPRA was “to stop the person committing or repeating the offence or committing another offence”. But no officer gave evidence of a belief that an arrest was reasonably necessary to prevent the continuation, repetition or commission of any offence. The State referred to a repetition of stalking (T523/37), but as the off-duty female police officer was long gone, the possibility of a continuation of stalking her would be fanciful and was not submitted. No other person who might be stalked was identified. The possibility of other offences is without any foundation and was not submitted. Thus, the requirements of ss 99(1)(b) were not satisfied.

67. It might be arguable that the State is not limited by the particulars to [14] of the defence in establishing reasonable necessity. However, that argument, not especially appealing, need not be determined. The State did not seek to add other reasons of reasonable necessity in closing submissions, nor did it make any application to amend its defence or supplement its particulars. Rather, an alternative novel argument was submitted by the State, namely that because no reply had been filed, the allegation in [14] particular (b) of the defence had been admitted. Particular (b) states that the:

“plaintiff was lawfully arrested by police who were satisfied it was reasonably necessary to arrest the plaintiff to…prevent the continuation or repetition of the offence or another offence.”

68. Leaving aside the rule that one does not plead to particulars (see Ritchie’s Uniform Civil Procedure NSW at [14.26.20] and [15.1.55]; Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72, 75; Chapple v Electrical Trades Union [1961] 3 All ER 612; [1961] 1 WLR 1290), there is no obligation on a plaintiff to plead to a defence. Rule 14.27 of the Uniform Civil Procedure Rules 2005 (“UCPR”) provides that if there is no reply (as in this case) there is an implied joinder of issue on the defence, which (by sub rule (5)) operates as a denial of every allegation in the pleading. Rule 14.26, by which an allegation in a pleading is “taken to be admitted”, has no application where there is a joinder of issues under r 14.27 (see r 14.26(1)(b)). Nor does the need for a specific denial (see r 14.10) arise because of r 14.27.

69. The State submitted that its argument, that particular [14](b) in the defence was admitted, was strengthened by the allegation in [10] of the amended statement of claim where Mr Shalhoub pleaded:

“At the time of arrest of the Plaintiff, he was not informed of the reason for his arrest despite asking police on a number of occasions as to the reason why he was being arrested.”

70. The State submitted that this limited the issues on the unlawfulness of the arrest to whether or not the plaintiff was informed of the reason for his arrest.

71. There are a number of defects in this argument. First, Mr Shalhoub’s pleaded allegation in [10] does not expressly assert any limitation of the kind asserted by the State, and I would not infer one from its terms.

72. Secondly, the State’s argument ignores other allegations in the amended statement of claim which indicate other aspects of unlawfulness, including the use of unreasonable force (see [6]), the failure to identify the arresting officers (see [9]), the absence of any belief of an offence (cf [12]), and an unreasonable period of detention (cf [12]).

73. Thirdly, the only express reference pleaded in the amended statement of claim of the unlawfulness of the arrest and imprisonment is in [14]: “The Plaintiff’s arrest and his imprisonment was unlawful and not justified”, an allegation which suggests no particular limits on the bases for the arrest or imprisonment being unlawful.

74. Fourthly, if the unlawfulness of the arrest was confined to the failure of the officers to supply information concerning the reason for arrest, then there is no purpose in the defendant pleading in [14] of the defence that the arrest was lawful and supplying particulars of reasonable grounds to suspect an offence, and for a police officer’s satisfaction of arrest being reasonably necessary.

75. Fifthly, and most clearly, the reason why the argument fails is that the plaintiff is not obliged to plead the non-existence of facts if the burden of proving those facts lies on the defendant (see UCPR 14.10). The State accepted that the burden of establishing the lawfulness of the arrest fell upon it. In the result, the State was obliged to allege and prove all the statutory requirements for a lawful exercise of the power to arrest, including satisfaction of reasonable necessity (s 99(1)(b)), suspicion on reasonable grounds (s 99(1)(a)) and provision of necessary information (cf s 202(1)(c)), in the absence of a reply admitting some or all of these matters.

76. Accordingly, I reject the State’s submission that by the absence of a reply Mr Shalhoub admitted on the pleadings that the arresting officer was satisfied that the arrest was reasonably necessary to stop the continuation or repetition of the offence or the commission of another offence.

77. These findings are sufficient to create a liability in the State for damages. The arrest and detention of Mr Shalhoub was unlawful because the requirements of s 99(1)(a), s 99(1)(b) and s 99(2) were each unsatisfied. However, I propose to deal with the other issues raised.

F. Informed of arrest as soon as reasonably practicable

78. A police officer who arrests a person but fails to give the true reason for the arrest is liable for false imprisonment: Christie v Leachinsky [1947] AC 573, 587, State of NSW v McCarthy [2015] NSWCA 153 at [78]. This rule is reflected in ss 201 and 202 of LEPRA (Abed at [85]).

79. The rationale underlying the rule that:

“persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason” (Ipp JA in State of NSW v Delly (2007) 70 NSWLR 125 at [9]; [2007] NSWCA 303 at [9], Abed at [88]),

and that “a person is not to be deprived of her or his liberty without lawful cause” (Abed at [89], Johnstone v State of NSW [2010] NSWCA 70; (2010) 202 A Crim R 422 at [43]).

80. Sections 201 and 202 of the LEPRA require a police officer, as soon as reasonably practicable after exercising a power to stop, search, arrest or direct a person, to provide to the person the officer’s name, place of duty and reason for the arrest. It was common ground that this information was not provided to Mr Shalhoub until sometime after the Lexus had pulled over and Mr Shalhoub had been removed from the car, brought to ground, struck repeatedly, handcuffed, detained and searched. The information was then provided by Officer Casey, an officer not earlier involved in the arrest, handcuffing, detention or search of Mr Shalhoub, or in the giving of the direction to remove Mr Shalhoub from the car.

81. No explanation was given by any of Officers Love, Dunn, Muir or Hurney as to why they did not identify themselves and provide a reason for the arrest of Mr Shalhoub or his removal from the car. Officer Casey first became involved with Mr Shalhoub when she went to check on Officers Dunn and Muir. She gave evidence that she saw that Mr Shalhoub was not moving and blood was coming from his mouth. She asked Officer Hurney, “Is he all right?”, then knelt down and asked Mr Shalhoub, “Mate, are you all right?” He was then lying on this side. He spoke but his eyes remained shut. She then left Mr Shalhoub to check on other people, spoke to Officer Love, then returned to tell Mr Shalhoub and Wassim and Mustapha Neffati that they were under arrest. The documentary evidence indicates that the arrest occurred at 2.40am or 2.50am, some 20 to 30 minutes after the Lexus had pulled over and Mr Shalhoub was removed from the rear seat.

82. Officer Casey gave evidence that initially the occupants of the grey Lexus were being “detained” and later, when she told Mr Shalhoub that he was under arrest, she gave her name and place of duty. Officer Casey said, “I think the words I used were ‘We think you were following a police officer’, or ‘You were following a police officer’, I can't remember the exact words that I used”. Officer Casey said, “That was the most appropriate time to do it, it was the soonest I could do it once I ensured that everyone was safe”.

83. The following exchange occurred in cross-examination:

“Q. Was part of the process that you've described for us of detaining the occupants, was that to ascertain what had been happening, what they'd been up to?

A. Well no at that point I didn’t know I was of the understanding that a car was following an off duty police officer, so at that point in time, I didn’t know who was in the car, I didn’t know what was in the car, so my number one priority at that point, was to make sure I got - that everyone was out of the car and everyone was safe.

Q. But part of your processes as well, was to detain the people, this is your word, and my suggestion is, to find out what they've been up to?

A. Well no not what they'd been up to, but to investigate as to whether or not they - to determine whether or not they were following [the off-duty officer].” (T460/5-17).

And later:

“Q. Are you familiar with the police powers?

A. Yeah.

Q. Which power were you exercising, in your opinion, as you were approaching the vehicle?

A. So like 99 do you mean or?

Q. Just generally, what power were you exercising as you - in your view, as you were approaching the vehicle with your plan to get the person that was your target, that's the gentlemen in the front passenger seat, out of the vehicle, what power—

A. It would've been 99; I think they've changed recently, but to an offence had been committed, I believed, and obviously they would be detained in respect of that offence, so that I could investigate further.

Q. But you've used the word ‘detain’?

A. Yeah.

Q. And you use that seemingly in distinction to ‘arrest’, do they mean different things to you?

A. Yeah, you detain someone straight away. And then obviously once I got some further information and I could tell them; I tell someone they're under arrest - so for me, I arrest someone, I tell them they're under arrest.

Q. So before that they're not arrested but just detained so you can work out what's going on?

A. Well no I did - the first thing I do is detain them, maybe it's my figure of speech; I detain someone and then I tell them they're under arrest, once I've ensured that the scene's secure and that they're safe.” (T469/40-T470/18).

84. These passages indicated to me that so far as Officer Casey was concerned, there was an initial period of detention for the purpose of investigation – to find out “who was in the car” at the “point in time” when the “car was following an off duty police officer” (T460/8-10) – and also to ensure that “the scene's secure and that they're safe” and thereafter the occupants were “arrested”. But during that interregnum between stopping the car and providing to Mr Shalhoub the information required by s 202 of LEPRA, there was no evidence that investigation took place, at least no information was sought from the occupants about how long they had been in the car. Further, LEPRA does not allow detention for the purpose of investigation unless there is first a lawful arrest. The Court of Appeal decided in Zaravinos v State of NSW (2004) 62 NSWLR 58; [2004] NSWCA 320 at [37]:

“the arrests were not lawful unless each decision to arrest was made in good faith and for the purposes for which the power to arrest exists, that is, the purposes of bringing the person arrested before a Justice and conducting a prosecution; and not for some extraneous purpose. Arresting a person for the purpose of questioning him and investigating the circumstances of the suspected offence or of any other offence is arrest for an extraneous purpose.”

“It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary highhanded and humiliating behaviour in circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of Information and Summons as an alternative course, and the considerations favouring and adverse to taking that alternative course, are relevant where the validity of the exercise of the power to arrest is in question.”

Although this passage concerned different earlier provisions, the same rule is apparent from s 99(4), which only allows detention for the purpose of an investigation of “[a] person who has been lawfully arrested” (see Robinson v State of New South Wales [2017] NSWDC 289 at [44]).

85. The obligations on the police officer under s 202 of LEPRA to state their name, place of duty and reason for the exercise of the power extend as much to stopping a person (s 201(1)(a)), searching a person (s 201(1)(a)) or directing a person to get out of a car, get on the ground or put their hands behind their back (s 201(1)(f)) as they do to arrest (s 201(1)(a)).

86. During a struggle, it may not be reasonably practicable to provide the information required by s 202 of LEPRA (see John Edward Thornton v State of New South Wales [2017] NSWCA 248 at [36]). But once Mr Shalhoub was handcuffed, the s 202 information was still not given, and Mr Shalhoub was thereafter searched, and left for a time, for as much as 30 minutes, before being given the statutory information. Mr Shalhoub gave evidence that he was handcuffed, “sitting upright on the grass” and “lying down” for half an hour before he was searched and thereafter told that he was under arrest by Officer Casey (T74/47-T75/10; T76/36-50). Officer Casey’s reason that she was elsewhere, including checking on the safety of other officers, is not an explanation for why the information was not provided by Officers Dunn or Muir. Nor does it explain why Officer Casey did not give that information when she first spoke to Mr Shalhoub when she checked on him after he was handcuffed.

87. Moreover, it was apparent that before the police approached the grey Lexus it had pulled over, was stationary and the occupants remained in the car. I could see no reason why the occupants could not be informed at that time of the reason for them being stopped and being directed to get out of the car. The suspicion that they had recently been following a police officer from near Revesby Police Station and down Davies Rd could have been readily and briefly stated. At that time there was no need to check on the safety of officers. Officer Casey gave evidence that she was able to say to the occupants, “Put your hands out, put your hands out of the car” (T439/35) and she noticed that the person in the front passenger seat, on whom she was focused, put his hands out of the car. She gave no evidence of any non-compliance with that direction. As the car was stationary and blocked by police cars, there was no prospect of it departing or its occupants fleeing, and as Officers Muir and Dunn, on their evidence, had the opportunity repeatedly to request Mr Shalhoub to get out of the vehicle, there was a clear opportunity to inform Mr Shalhoub of the reasons for his arrest. As it was readily able to be done, so it was reasonably practicable to do it. In those circumstances, once the car had been stopped, it was reasonably practicable for the occupants to be informed of the reason why they had been stopped, why they needed to be directed to “put your hands out” and why they were being arrested.

150. In a similar way, “calculated” has been held to include those things which were “naturally to be expected” to result from the conduct (see Bunyan v Jordan (1937) 57 CLR 1 at 11, Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at 487; [2007] NSWCA 377 at [76]-[80]. However, the application of these phrases might not be directly applicable to an “intent to cause injury”, see Dean v Phung [2012] NSWCA 223 at [27]-[28] referring to State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 at [16].

151. Accordingly, I find in Officers Hurney and Dunn the existence of an intent to cause significant pain and numbness so as to weaken Mr Shalhoub’s capacity to resist. This is an impairment of his physical condition and thus an injury under the CLA. In addition, the bruising which was naturally to be expected from the actions of the police officers would also satisfy the statutory definition. As I find that there was an intent to cause injury in the physical force applied to Mr Shalhoub, it follows that s 3B(1)(a) operates to exclude the provisions in Pt 2 limiting damages in respect of the knee strikes and hammer strikes of the police officers. These were the principal components of the physical violence against Mr Shalhoub.

(v) Sexual misconduct

157. Mr Shalhoub did not submit that the conduct of Officer Dunn in relation to the search of Mr Shalhoub’s groin was done with intent to cause injury. Thus, even though it was an intentional act, this component of s 3B(1)(a) is not satisfied. The exclusion of the CLA in s 3B(1)(a) is not enlivened unless the search constituted sexual misconduct.

158. The conduct of Officer Dunn in conducting the search was an unlawful assault, and therefore was unacceptable and improper so as to constitute misconduct. But is it sexual? It is connected with a sexual organ, but Officer Dunn’s conduct did not involve any sexual desire or gratification. Whether sexual desire or gratification is a requirement for sexual misconduct generally might be doubted. Sexual misconduct seems to depend on the nature of the conduct, rather than the motivations or feelings of the offender.

159. The act of Officer Dunn was also intentional: I have found that the search of the groin area by Officer Dunn was an “intentional act”, although not intentional sexual misconduct. Can conduct be an intentional act amounting to sexual misconduct, without being intentional sexual misconduct? The act is intended, even if it was not intended to be sexual in the conventional sense.

160. An ambiguity about whether conduct constitutes sexual misconduct might ordinarily be resolved by a finding in the negative. But in this case, the finding is to deny a person a common law right to damages. The alternative finding enlivens s 3B(1)(a) but does not operate to convict the offender. For this reason, I do not think that sexual misconduct in s 3B(1)(a) should be given a narrow construction, and I find that under this provision, if not in other contexts, the conduct of Officer Dunn in grabbing Mr Shalhoub’s penis in the course of an unlawful search constituted sexual misconduct under s 3B(1)(a).

161. For this reason, I find that s 3B(1)(a) of the CLA does not operate to limit the damages of Mr Shalhoub arising from the unlawful search.

(c) Damages for unlawful arrest and imprisonment

162. The tort of false imprisonment is a tort of strict liability focussed on the “vindication of liberty and reparation to the victim” rather than any wrongdoing on the part of the defendant (Smith at [153]). Damages for the tort compensate not only for the loss of liberty, but also for the loss of dignity and reputation (Goldie at [14], J Fleming, The Law of Torts 8th ed, LBC (1992) at 29, Smith at [154]). Thus, damages are assessed by reference to the duration of the deprivation of liberty, and for hurt or injury to feelings such as by the “injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment” (Trindade and Cane, The Law of Torts in Australia, 3rd Edition, OUP (1999) at 302, Goldie at [14], Smith at [154]).

163. There is not “some kind of applicable daily rate”. A substantial proportion of the ultimate award is for “the initial shock of being arrested” (Ruddock & Ors v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262, Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 at 515). An “interference with personal liberty even for a short period is not a trivial wrong” (Watson v Marshall (1971) 124 CLR 621 at 632; [1971] HCA 33, Smith at [157]).

164. The plaintiff referred to Zaravinos, where an amount of $25,000 was awarded which included an aggravated and exemplary component of damages. In Delly, $25,000 compensatory damages was awarded. In Moses v State of NSW (No 3) [2010] NSWDC 243, an amount of $35,000 for general damages was awarded for false imprisonment which involved an eight to nine hour detention.

165. In Zaravinos, three hours and 23 minutes of detention was found to be “unnecessary, highhanded, humiliating and unnecessarily long” (at [49]). The evidence in that case of humiliation and distress might have been more cogent than here, but there are other aggravating factors in this case which were stronger than in Zaravinos. Here the unlawfulness of the imprisonment was separately established on four different bases: Officer Love had no suspicion on reasonable grounds so that s 99(1)(a) and s 99(2) of LEPRA were not satisfied; Officer Love was not satisfied of the need to arrest so as to prevent a continuation of the offence (s 99(1)(b) and s 99(2)); the required statutory information was not given as soon as reasonably practicable, contrary to ss 201 and 202 of LEPRA, and the continued detention after about 3am when Mr Shalhoub was known to have not been involved in the suspected stalking was without any semblance of compliance with s 99. In addition, Mr Shalhoub was arrested in the middle of the night in the company of friends, by multiple police, was never offered any apology (see MacDougal v Mitchell [2015] NSWCA 389 at [33]-[34]) and was required to conduct a lengthy contested trial to establish his entitlement (where the State submitted that there were no aggravating factors and that Mr Shalhoub was dealt with appropriately for resist arrest) (cf Cheng v Farjudi [2016] NSWCA 316 at [110]). These are all aggravating factors.

166. In my view, the wrongful imprisonment of Mr Shalhoub in 2015, with the aggravating features mentioned, warrants at least as great an award of damages for unlawful imprisonment as any of the three cases mentioned.

(d) Damages for assault and battery

167. Mr Shalhoub submits that he is entitled to a separate award of damages for:

“each of the established assaults although in respect of the assaults it is also being held that a series of assaults as part of an overall process can result in a single global award of general damages”.

168. The physical harm necessitated brief attendances on a general practitioner and resolved completely some months later by 2 September 2015. The ongoing consequence of the police conduct is a “fear of police which itself contributes to a reduced social life”. As this is a consequence of the physical harm and s 3B(1)(a) is satisfied, and also because s 31 of the CLA applies only to pure mental harm from negligence, the limitations on damages imposed by s 31 are inapplicable.

169. I regard the amount of $15,000, identified by Mr Shalhoub as an appropriate amount for compensatory damages (excluding aggravated damages) for the assaults of forcible removal from the car, being held and beaten by three police officers, including with repeated blows to the head, and the unjustified search of his private area, as a very modest amount for the assaults. I would propose to award it in full without regard to aggravating factors.

(e) Aggravated and exemplary damages

(i) Relevant principles

170. Aggravated damages are compensatory, assessed from the point of view of the plaintiff, whereas exemplary damages are of a punitive and deterrent nature and focus on the conduct of the defendant (Abed at [230], New South Wales v Zreika [2012] NSWCA 37 at [60]-[64]).

171. Injury to Mr Shalhoub’s feelings, caused by insult, humiliation and the like are a component of aggravated damages, reflecting the circumstance where the manner of the wrongful act aggravated the harm done (see Lamb v Cotogno (1987) 164 CLR 1 at 8 ; [1987] HCA 47, Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40, Abed at [213]).

172. Damages for false imprisonment are to reflect the “disgrace and humiliation” of an arrest. Yet this is also a factor of aggravation. Care must be taken not to double count an item of damage where the various categories of damages are not self-contained (see New South Wales v Radford (2010) 79 NSWLR 327 at [97]; [2010] NSWCA 276, Abed at [234]). Compensatory damages, including aggravated damages, must be awarded before considering whether, and what, exemplary damages should be awarded.

173. Exemplary damages go beyond compensation and are a punishment to deter similar future conduct, reflecting the Court’s detestation (see Lamb at 8, Abed at [232]). An award of exemplary damages generally requires “conscious wrongdoing in contumelious disregard of another's rights” (Gray v Motor Accidents Commission (Gray v MAC) (1998) 196 CLR 1 at [14]; [1998] HCA 70, Abed at [232], although, “[c]onduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing” (State of New South v Riley (2003) 57 NSWLR 496 at [138]; [2003] NSWCA 208, Abed at [233]).

(ii) Aggravated damages

174. I have identified above aggravating factors in respect of the unlawful imprisonment.

175. Some of those matters also aggravated the assault. Mr Shalhoub was in the company of friends. He was assaulted by three police officers at once, at night. He was assaulted when in handcuffs during the course of the search. There has been no acknowledgment of any wrong by the police.

176. I also take into account Mr Shalhoub’s head injuries and recovery, and his continuing anxiety when viewing police officers.

177. In my view, Mr Shalhoub should be awarded $35,000 for the wrongful arrest, including aggravated damages, and $30,000 for the assault and battery, including aggravated damages.

178. These sums reflect not only the events of the assaults and imprisonment, including the aggravating factors I have mentioned, but also the time for recovery of Mr Shalhoub’s injuries.

(iii) Exemplary damages

179. The State submits that there are only two possible areas that the Court would “show the Court's disapprobation of the contumelious disregard of the plaintiff's rights”: the police conduct comprising Officer Dunn’s hammer strikes to Mr Shalhoub’s head, and Officer Dunn’s search of Mr Shalhoub. The State further submits that those matters are de minimis.

180. The plaintiff submits that Mr Shalhoub’s treatment was "unnecessarily high handed" in the decision, made apparently by Officer York, to continue his detention and be taken to Bankstown Police Station in circumstances where the reasons for it are unexplained and could not be justified. The same submission can be said about the lack of any real explanation by the State as to how the initial arrest was for reasons of preventing continued offences.

181. The failure of the police to apologise is relevant also to exemplary damages (see MacDougal at [33]-[34]). So also are the denials that required Mr Shalhoub to engage in a lengthy trial to vindicate his rights (cf Cheng at [110]). I am satisfied that an award for exemplary damages would not involve “double dipping” (cf MacDougal at [35]).

182. The hammer strikes to the head of Mr Shalhoub while he lay face down on the ground with three police officers restraining him involved a contumelious disregard of Mr Shalhoub’s rights, and the repeated failures to satisfy the LEPRA requirements involving several officers, including in particular the continued imprisonment after 3.05am, go beyond “ordinary human fallibility” (Smith at [169]). I find that the strikes to his head, the unjustified search of his groin, the decision to retain him in custody without reason once the stalking allegation was found to have no merit and the several contraventions of LEPRA in the forceful arrest to each be contumelious and high-handed and warrant an order of this Court manifesting its disapproval. The failure of the State to regret or even recognise the inappropriateness of the conduct strengthens the basis for an award of exemplary damages.

183. In my view, an amount of $15,000 for exemplary damages is appropriate.

(f) Interest and costs

184. Interest was claimed in the amended statement of claim. An imperfect basis for the calculation of interest on damages for non-economic loss may be the difference between a return on a secure investment and the inflation rate (cf MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 666; [1991] HCA 3 at [13]). There was no evidence of these rates, but I think the Court could take judicial notice of the circumstance that both rates are low. I would allow an interest rate of 1% per annum on the whole award.

185. Thus, Mr Shalhoub is awarded the following in damages:

Amount awarded

($)

Compensatory damages for wrongful arrest/false imprisonment, including aggravated damages

35,000

Compensatory damages for assault and battery, including aggravated damages

30,000

Exemplary damages

15,000

Interest

2,018.63

Total

82,018.63

186. Costs should follow the event.

J. Orders

187. The orders of the Court are:

1. Judgment for the plaintiff in the sum of $82,018.63.

2. Defendant to pay the plaintiff’s costs.

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Decision last updated: 15 December 2017