Shepherd v State of New South Wales

[2022] NSWCA 145

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Shepherd v State of New South Wales [2022] NSWCA 145

Hearing dates:

5 April 2022

Date of orders:

11 August 2022

Decision date:

11 August 2022

Before:

Leeming JA at [1]
Brereton JA at [2]
Beech-Jones JA at [13]

Decision:

(1)   Appeal dismissed.

(2)   The Appellant pay the Respondent’s costs of the Appeal.

Catchwords:

APPEAL – alleged assault by police – appeal from dismissal – appellant said he was assaulted as he confronted police over alleged failure to protect his father from neighbour – claims excessive force applied – claimed femur deliberately broken – police claim appellant represented threat to neighbour who was in their custody – claimed only applied “check drill” and appellant fell over – primary judge preferred evidence of police officers – dismissed claim – whether primary judge afforded proper weight to medical notes recording that applicant was assaulted – whether primary judge made finding that appellant and his mother concocted and colluded in their evidence – whether primary judge was obliged to make finding that police witnesses participated in a re-enactment of incident and their evidence was contaminated – all grounds rejected – appeal dismissed

Legislation Cited:

Civil Liability Act 2002 (NSW)

Evidence Act 1995 (NSW)

Law Reform (Vicarious Liability) Act 1983 (NSW)

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Mastronardi v State of New South Wales [2007] NSWCA 54

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31

State of New South Wales v Shepherd [2019] NSWCA 261

Category:

Principal judgment

Parties:

Justin Wayne Shepherd (Appellant)
State of New South Wales (Respondent)

Representation:

Counsel:
Mr D Toomey SC; Mr S Holmes (Appellant)
Mr L Gyles SC; Mr R Coffey (Respondent)

Solicitors:
Adams and Partners Lawyers (Appellant)
Makinson D’Apice Lawyers (Respondent)

File Number(s):

2021/210509

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

29 June 2021

Before:

Curtis ADCJ

File Number(s):

2016/202999

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Appellant sued the State of New South Wales (the “State”) for damages arising out of what he contended was an assault by a police officer.

In the early hours of 12 August 2014, the Appellant attended at his father’s home in Doonside in response to a report that he had been assaulted by a neighbour. The Appellant had previously called police to warn of the possibility of an attack. The Appellant claimed that he was told by his brother that the neighbour was in a police wagon parked at the front of their father’s home. He approached police officers who were outside the neighbour’s home. He claimed he was struck in the shoulder area and knocked to the ground by a police officer, Senior Constable Marsman, who then proceeded to punch him in the shoulders and ribs. The Appellant alleged that he was knocked back to the ground after regaining his footing and was struck several times in the groin area by the police officer’s knee. He said that he rested his knee on the gutter and the police officer struck his right thigh and fractured his femur. Senior Constable Marsman claimed that the neighbour was detained in a police van outside the neighbour’s home and the Appellant approached him in a manner that represented a threat to the prisoner. He claimed that he applied a “check drill” to the Appellant which involved pushing him away by placing two hands on his chest. The officer claimed that the Appellant fell over as a result and injured himself.

The Appellant’s account derived support from the witnesses called in his case, being his brother, mother, and former partner. The State called a number of police officers who supported Senior Constable Marsman’s version of events. The primary judge accepted the State’s witnesses. The primary judge found that the force that was applied was reasonably considered by Senior Constable Marsman to be necessary to protect the person in custody and was thus lawfully applied. Against the contingency that the State was liable, the primary judge assessed the Appellant’s damages which included exemplary damages in the amount of $100,000.00.

The principal issues on appeal were whether:

1. The primary judge implicitly found that the Appellant and his mother, who visited him in hospital, concocted and colluded in their versions of events and, if so, whether that finding was made without evidence and denied the Appellant procedural fairness;

2. The primary judge failed to accord any or proper weight to hospital notes prepared the morning of the incident recording that the Appellant was the subject of an “alleged assault” and “tackled by police into the gutter” or failed to give adequate reasons for discounting the weight to be attached to those notes;

3. The primary judge was obliged to make a finding that one of the police witnesses, Senior Constable Nissan, as well as Senior Constable Marsman, had participated in a video re-enactment of the incident and consider whether their evidence was “contaminated”; and

4. Whether, in the event the Court ordered a retrial on liability, the order would extend to requiring a reassessment of the amount of exemplary damages.

The Court held, dismissing the appeal:

As to issue (i) per Leeming, Brereton and Beech-Jones JJA:

1. The primary judge did not make any express or implicit finding that the Appellant or his mother lied, were dishonest, colluded or concocted their evidence. Witnesses to an event may discuss the event after its occurrence and thereby influence their recollection without concocting false evidence or fabrication (at [1], [12] and [54]).

As to issue (ii) per Leeming and Beech-Jones JJA:

1. The primary judge did not err in concluding that the medical notes were not inconsistent with the evidence of the police witnesses. The primary judge accorded proper weight to the medical notes in considering that they were based on the account which the Appellant gave to medical staff, although his Honour found that the notes and the Appellant’s evidence did not outweigh the evidence of the police witnesses. The primary judge gave reasons for the weight afforded to the medical notes. The fact that the Appellant disputed those reasons does not mean they are inadequate (at [1], [12] and [56]-[57]).

Further, as to issue (i) and (ii) per Brereton JA:

1. Although the hospital notes provided significant support for the Appellant’s version of events, the primary judge’s ultimate findings were influenced by the impression he formed of the witnesses from observing them give evidence. It could not be said that those findings were demonstrably wrong having regard to “incontrovertible facts or uncontested testimony”, were “glaringly improbable” or “contrary to compelling inferences” (at [11]).

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 applied.

As to issue (iii) per Leeming, Brereton and Beech-Jones JJA:

1. In circumstances where Senior Constable Nissan was not shown the recording of the re-enactment and it was not put to him during cross-examination that he lied about his involvement in the re-enactment, the primary judge was not obliged to make a finding about Senior Constable Nissan’s participation in the re-enactment. Instead, it was sufficient that the primary judge addressed and rejected the submission that Senior Constable Nissan lied, including that he lied because he knew that his involvement in the re-enactment was improper (at [1], [3] and [67]-[69]).

Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47; Fox v Percy applied.

As to issue (iv) per Leeming and Beech-Jones JJA, Brereton JA not deciding:

1. Had a new trial on liability been ordered then the assessment of the amount of exemplary damages would have been set aside and remitted. Such an assessment is necessarily dependent on the facts found in support of a finding of liability (at [1] and [73]).

Civil Liability Act 2002 (NSW), s 52; Mastronardi v State of New South Wales [2007] NSWCA 54; Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1) applied.

Judgment

1. LEEMING JA: I agree with Beech-Jones JA.

2. BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Beech-Jones JA, in which the relevant evidence is more fully set out, and the issues explained.

3. I agree with his Honour that Grounds 5 and 6 fail, for the reasons his Honour gives.

4. As to Grounds 1, 2, 3 and 4, although, as seems to have become fashionable, they appear to have been framed so as to attempt to create questions of law, the appellant’s real complaint is that the trial judge erred in fact in rejecting the appellant’s account that, having thrown him to the ground, a “policeman then pinned him to the ground by the shoulders and struck him several times with his knee in the groin area”, and then kneed him on his inner right thigh, when according to the appellant “I heard the break and I just felt pain that I’ve never felt before in my life”. This was reflected in the ultimate reformulation of the complaint as a proposed further ground of appeal to the effect that the judge “erred in failing to find that Constable Marsman fractured the appellant’s leg by kneeing him to the thigh after he had put the appellant to ground”.

5. As such an appeal, being one governed by Supreme Court Act 1970 (NSW), s 75A, is by way of rehearing, this Court has the powers and duties, including powers and duties concerning the drawing of inferences and the making of findings of fact, of the Court of first instance. The Court must conduct a “real review” of the evidence and of the judge’s reasons to determine whether the trial judge has erred in fact or law. However, caution must be exercised in departing from findings of fact made by the primary judge based on impressions about the credibility and reliability of witnesses formed as a result of seeing and hearing them give their evidence: such findings should be disturbed only if they are demonstrably wrong by reason of “incontrovertible facts or uncontested testimony”, or are “glaringly improbable” or “contrary to compelling inferences”. ^[1] As the High Court explained in Lee v Lee:^[2]

“A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law [Fox v Percy (2003) 214 CLR 118 at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686 [43]; 331 ALR 550 at 558]. Appellate restraint with respect to interference with a trial judge's findings unless they are “glaringly improbable” or “contrary to compelling inferences” [Fox v Percy (2003) 214 CLR 118 at 128 [29] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 687 [43]; 331 ALR 550 at 558-559] is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts [Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at 434-435 [144]; Thorne v Kennedy (2017) 263 CLR 85 at 104 [42]]. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge” [Warren v Coombes (1979) 142 CLR 531 at 551 per Gibbs A-CJ, Jacobs and Murphy JJ; see also Fox v Percy (2003) 214 CLR 118 at 127 [25]].”

1. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29] (Gleeson CJ, Gummow and Kirby JJ), [66] (McHugh J); see also Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 at [76] (Heydon, Crennan and Bell JJ).

2. (2019) 266 CLR 129; [2019] HCA 28 at [55] (Bell, Gageler, Nettle and Edelman JJ).

6. The appellant’s account was corroborated by the appellant’s brother Sean Shepherd, who said that he saw a police officer on top of the appellant striking his knee into him several times. It was also corroborated, although less precisely, by the appellant’s former partner, Ms Susan Catania, who said that after the appellant regained his feet having first been pushed to the ground, the policeman “shoulder barged” him down to the ground again, pinned him to the ground and commenced to punch him in the groin, whereupon the appellant started screaming in pain. Similarly, the appellant’s mother Mrs Shepherd said that when the appellant “got up”, the policeman told him “get down”, and when he protested then threw the appellant over his leg to the gutter, before striking him in the groin with his knee two or three times, whereupon the appellant let out a scream and said: “I’m really hurt. I’m really hurt”.

7. Against that, Senior Constable Marsman said that he employed a defensive strategy called a check drill, placing his hands into the appellant’s sternum, stopping him and forcing him backwards, resulting in the appellant landing awkwardly in the gutter area. He denied having any intention to injure the appellant. Senior Constable Marsman’s notebook contains a contemporaneous statement by him substantially consistent with that version. Senior Constable Waterhouse said that he saw Senior Constable Marsman push the appellant in the chest with both hands, and the appellant fell across the gutter and did not get up; Senior Constable Marsman asked him “Are you okay?” Senior Constable Nissan said that Senior Constable Marsman told the appellant to “[g]et back” and “… performed a check drill [applying] two hands pushed to the upper chest”, and the appellant then “stumbled back” and “fell onto the kerb”; Senior Constable Marsman asked him “[a]re you all right mate?”, and he did not see any other physical contact between them. Senior Constable Singh did not see the interaction between the two.

8. An ambulance note printed at 4.02am on 12 August 2014 states that the appellant was allegedly “involved in altercation with police whereby, he was thrown to the ground”. The hospital admission note at 3.34am included a statement that the appellant was “[r]eportedly tackled by police into gutter”. A hospital note made at 8.57am records that a visitor was in attendance; the appellant’s mother said that she visited him in hospital. A subsequent note at 10.08am states that the appellant complained of “[p]ainful Right hip after a police tackle allegedly” and gave a history that he “[f]ell into gutter when tackled – onto right side of hip and police pinned him to ground with knee on right thigh allegedly.”

9. With one exception, the hospital notes are equivocal – that is, they are not inconsistent with either version. The one exception is the 10.08am note, in which the reference to police pinning the appellant to the ground with knee on right thigh is consistent only with the appellant’s version and incompatible with the police version. While that note is sourced in the appellant and is not an independent observation, it is evidence of very early complaint. In his evidence in chief, the appellant said that he told a doctor in the hospital, more than once, what had happened to him. This was not elaborated; nor was he cross-examined about what he had told the hospital staff, or the circumstances in which the note came to be made.

10. However, the judge was unimpressed by the appellant’s witnesses, in respect of whom he found evasiveness, inconsistences and “suspicious similarities”; whereas his Honour found the evidence of the police officers “consistent and persuasive”, and that nothing in “… their demeanour nor the content of their evidence gave me reason to doubt their truthfulness.” His Honour had regard to the 10.08am note, but observed that by the time it was made, the appellant had been visited by his mother and discussed the incident with her, and concluded that the hospital records, based as they were entirely on what the appellant had told hospital staff, did not outweigh the evidence of the police. I do not accept that the observation about the discussion with his mother was implicitly a finding of collusion, but only an observation that the spontaneous contemporaneity of the account recorded in the note might be diminished by a conversation about the incident.

11. To my mind, the 10.08am note provided signficant support for the appellant’s version. Fundamentally, very shortly after the event, he described that a knee had been applied to his right thigh. However, as explained above, the burden facing the appellant in seeking to overturn a finding of fact, based in substantial part on impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence, is a heavy one. It is apparent that his Honour’s conclusions were influenced by the impression he formed of them in the witness box. In circumstances where the appellant bore the onus of proof and, as the trial judge pointed out, the standard described in Briginshaw v Briginshaw [3] was applicable, it cannot be said that his Honour’s finding, to the effect that the note coupled with the oral evidence in the appellant’s case did not outweigh (plainly, a reference to the balance of probabilities) the evidence of the police witnesses, was demonstrably wrong having regard to “incontrovertible facts or uncontested testimony”, or “glaringly improbable” or “contrary to compelling inferences”.

    3. (1938) 60 CLR 336; [1938] HCA 34.

12. For those reasons, and those given by Beech-Jones JA, Grounds 1, 2, 3 and 4 fail. I agree with the orders proposed by Beech-Jones JA.

13. BEECH-JONES JA: This is an appeal from a judgment of Curtis ADCJ dismissing the Appellant’s claim against the Respondent, the State of New South Wales, for damages for assault and battery. He alleged he was assaulted by a police officer, Senior Constable Leigh Marsman. The Respondent admitted that, by operation of Part 4 of the Law Reform (Vicarious Liability) Act 1983, it was vicariously liable for any tort committed by Senior Constable Marsman, although it denied any such tort was committed. The hearing was a retrial ordered by this Court (State of New South Wales v Shepherd [2019] NSWCA 261).

14. The Appellant’s case was that, in the early hours of 12 August 2014, he was, without provocation, thrown to the ground and kneed repeatedly by Senior Constable Marsman. His injuries included a fractured right femur. The primary judge rejected the evidence of the Appellant and his witnesses. His Honour found that Senior Constable Marsman applied a technique known as a “check drill”, being a two-hand push to the upper chest, which caused him to fall. His Honour found that Senior Constable Marsman reasonably believed that amount of force was necessary because the Appellant was intent upon harming a person the police held in custody.

15. The Appellant contends that his Honour’s assessment of the facts was affected by error because his Honour supposedly made a finding that the Appellant and his mother “colluded and concocted” their evidence without their being put on notice that such a finding might be made, and failed to make an essential determination on a factual matter affecting the credibility of Senior Constable Marsman and another police witness, Senior Constable Nissan.

16. For the reasons that follow I do not accept that his Honour made either error. In particular I am not satisfied that his Honour found that the Appellant and his mother concocted their evidence. I consider his Honour did make findings sufficient to address the relevant attack on the credit of Senior Constable Marsman and Senior Constable Nissan.

6. Otherwise, I note that leave to appeal is not required. The primary judge assessed damages against the contingency that the Appellant’s claim succeeded in the amount of $265,395.99, including exemplary damages in the amount of $100,000.00 (cf Supreme Court Act 1970 (NSW), s 101(2)(r)).

The Appellant and his Witnesses

18. The primary judge summarised the evidence of the Appellant and his three witnesses. The following is taken from his Honour’s summary and the transcript of their evidence.

19. As at August 2014, the Appellant lived in Hassall Grove. His father lived in Doonside. There was a history of conflict between the Appellant’s father and a nearby resident in Doonside, Mr John Bond. Both of their houses are located on the northern side of Delaney Drive. They are separated by another house and the width of a street that runs off Delaney Drive. The primary judge estimated that the distance between the houses was about “ten car lengths.”

20. In his evidence the Appellant said that, after receiving a call from his mother, at about 10.00pm on the evening of 11 August 2014, he telephoned Blacktown police station to inform them that Mr Bond had threatened his father. He said that the police advised him they could not intervene because Mr Bond had not (yet) done anything wrong. At around 1.30am, the Appellant said he received another telephone call from his mother who told him that his father had been beaten by Mr Bond. The Appellant went to the scene. When he arrived, he saw his father in an ambulance, at least two police cars and “a lot of police”. The Appellant said that his brother, Sean, told him that Mr Bond was in a police wagon parked “right out the front of our house”. The primary judge noted that in his evidence the Appellant’s brother denied telling him that.

21. The Appellant said that he walked towards the police officers who were standing near a police wagon parked in the driveway of Mr Bond’s house. He said he walked at a quick pace until one of the officers asked who he was. He replied, “[t]hat’s my father that’s up there in the pool of blood”. The Appellant said he was asked to stop and did so about 8 to 10 feet way from the police. He said he complained about the police response to his report of threats. The primary judge accurately summarised the balance of his evidence as follows:

“At that moment he was struck in the shoulder area like he was being tackled. He landed on the grass verge of a nature strip. He saw a police officer over him who struck him with his fists around his shoulder and ribs. He was told by the officer to stay on the ground. He replied ‘We are the victims’ and regained his feet. The policeman then said: ‘Get down or I'll fucking put you back down.’

Mr Shepherd says that after he laughed at the policeman and called him a hero, the policeman took hold of his shirt, and, rolling him over an outstretched leg threw him onto his back on the roadway, in a position parallel to the gutter. The policeman then pinned him to the ground by the shoulders and struck him several times with his knee in the groin area.

Mr Shepherd said that as he attempted to roll to his right, his right knee went up on the gutter. The policeman then kneed him on his inner right thigh and Mr. Sheppard said: ‘I heard the break and I just felt pain that I’ve never felt before in my life’.” (emphasis in original)

22. The Appellant called his brother, Sean Shepherd, to give evidence. Sean Shepherd’s evidence was that when the Appellant arrived at his parent’s house two police wagons were parked at the front of Mr Bond's house and he “believed” Mr Bond was detained in one of the vehicles. He said that, approximately 15 or 20 minutes after the Appellant arrived, one of the vehicles was driven from Mr Bond's house to his father’s house with Mr Bond inside. Sean Shepherd said that at no time did he speak or communicate with the Appellant before the Appellant approached the police outside the Bond house. He said he did not tell the Appellant where Mr Bond was.

23. The primary judge described Sean Shepherd’s evidence as being that his brother “walked, calmly and without speaking” towards Mr Bond’s house. In fact in his evidence‑in‑chief, he said the Appellant was “upset”. In cross‑examination he said his brother was angry, but said he did not say anything. However, he agreed with the proposition that the Appellant “was just calmly walking down there without saying anything to anyone, is that right?” Sean Shepherd said that after his attention was drawn by sounds of a commotion, he saw a police officer on top of the Appellant striking his knee into him several times. In cross‑examination he said that he did not see how the Appellant ended up on the ground.

24. The Appellant’s former partner, Ms Susan Catania, also gave evidence. Ms Catania was in a relationship with the Appellant at the time of the incident. She had driven the Appellant to his father’s house as she knew he had been drinking and believed he may have exceeded the blood alcohol limit. Ms Catania recalled that there was no “caged” police vehicle outside the Appellant’s father house, but there was a police van at the front of Mr Bond’s house. She followed the Appellant as he approached the police at the front of Mr Bond’s house. She recalled him saying about his father “[h]e’s been hurt now … what are you going to do about it?” The critical part of her evidence was summarised by the primary judge as follows:

“She said that [the Appellant] was very upset and that a policeman was telling him to calm down. [The Appellant] kept moving forward and a policeman shoulder charged him to the ground. He commenced to get up off the ground and said [to] the policeman; ‘What are you doing? What are you doing? Stop hitting me.’

After [the Appellant] had regained his feet the policeman said; ‘Haven’t you had enough already’ and shoulder barged him down to the ground again. The policeman pinned him to the ground and commenced to punch him in his groin. [The Appellant] then started screaming in pain. The policeman stood up and walked away. Another policeman came to help [the Appellant].

Ms Catania said that she was told that Mr Bond was not in the police van approached by [the Appellant]”. (emphasis in original)

25. The primary judge recorded that he “did not regard Ms Catania as a satisfactory witness” and described her evidence as “evasive and inconsistent”. His Honour specifically noted that when she was asked “What you do remember is seeing [the Appellant] walking forward and then ending up being pushed backwards and ending up falling into the gutter?” she replied “yes, that’s correct.” That answer was consistent with the Respondent’s case, although Ms Catania said that the Appellant then got up, fell again and was punched while he was on the ground the second time.

26. The Appellant also called his mother, Shirley Shepherd, to give evidence. She said that, based on a discussion she overheard amongst the police about one of their vehicles breaking down, she understood that Mr Bond was in a vehicle in front of her house. She said she followed the Appellant and Ms Catania as he approached the police outside Mr Bond’s house. She recalled the Appellant screaming “[a]re youse going to finally do something about it? I had rang up and youse told me that youse weren’t babysitters. If youse had of come this wouldn’t have happened”. She said that the policeman had “come from nowhere” and “… come in with his shoulder … like he was … a footballer like he was going to tackle him”. In cross‑examination, but not in chief, Mrs Shepherd said that while the Appellant was on the ground the officer “punched him a couple of times” in the ribs. Mrs Shepherd said that the Appellant “got up” but the policeman told him “get down, get down” but he said, “It’s wet and there’s bindis”. She said the policeman then came in and threw the Appellant over his leg to the gutter before striking him in the groin with his knee two or three times. Mrs Shepherd said that the Appellant then let out a “unghastly scream” and said: “I’m really hurt. I’m really hurt”.

27. Mrs Shepherd says she said to the policeman “[y]ou’re nothing but a cowboy cop”. She said he replied, “[s]hut your f’ing mouth or I’ll do the same thing to you”. The primary judge observed that “[i]n the normal course of events a policeman would not threaten a 73 year old woman dressed in her nightie …”. The primary judge described Mrs Shepherd as an “evasive witness” who was reluctant to concede that the Appellant was angry and aggressive. His Honour noted that “… she was certain … that at a point in time there were two Paddy wagons parked outside the Bond house.”

The Respondent’s Witnesses

28. The Respondent called four witnesses, Senior Constable Waterhouse, Senior Constable Nissan, Constable Singh and Senior Constable Marsman. Between August 2014 and the time of the hearing before the primary judge, Constable Singh had been promoted to Plainclothes Senior Constable and Constable Marsman had been promoted to Senior Constable. The following is taken from the primary judge’s summary and the transcript of their evidence.

29. Senior Constable Waterhouse said that he attended the incident along with Senior Constable Singh. He said that they drove “Blacktown 17” being a “caged police vehicle” to the scene. They parked opposite the Shepherd household. He said they saw the Appellant’s father and then they walked to Mr Bond’s house. Senior Constable Waterhouse said they arrested Mr Bond and placed him in another caged police vehicle, “Blacktown 16”, which was located in front of Mr Bond’s house. However, the battery for Blacktown 16 was flat and so he moved Blacktown 17 so that it was parked “roughly next” to Blacktown 16 to “move Mr Bond from 16 into 17”.

30. The primary judge accurately described the salient part of Senior Constable Waterhouse’s evidence as follows:

“Constable Waterhouse, sitting in the driver's seat of the Utility Vehicle [Blacktown 17] then heard yelling and screaming coming from the Shepherd house and saw [the Appellant] coming down the road quite quickly, yelling ‘He’s fucking dead. I’m gonna fucking kill him.’ He saw Constable Marsman move to a position in front of the vehicle, and heard him saying words to the effect of ‘Keep Back’ or ‘Keep Away’, or ‘Stay Back.’

Mr Shepherd did not stop, Constable Waterhouse saw Constable Marsman push him in the chest with both hands. [The Appellant] fell across the gutter and did not get up. Constable Waterhouse heard Constable Marsman say to him ‘Are you okay?’ An ambulance then attended to treat [the Appellant] and Constabl[e] Waterhouse and Constable Marsman drove Mr Bond to the Blacktown police Station.” (emphasis in original)

31. Senior Constable Nissan said that he drove Blacktown 16 to the scene with Senior Constable Marsman. He parked “… almost directly … opposite to Mr Bond’s premises”. They attended on the Appellant’s father. Next, with Senior Constable Waterhouse they arrested Mr Bond at his residence and walked him to the rear of Blacktown 16. They discovered that the battery on that vehicle “had died”. He said that one of the officers drove Blacktown 17 so that it was parked “… beside us, parallel on the roadway” and Mr Bond was transferred into that vehicle.

32. Senior Constable Nissan said that he then observed the Appellant “approaching us at some pace” and that he was be “upset, angry” and “shouting, swearing”. The Appellant said, “[w]here’s that fucking cunt?” Senior Constable Nissan said he heard Senior Constable Marsman say on no less than two or three occasions “… something along the lines, ‘Get back everything’s under control’…”. Senior Constable Nissan said that Senior Constable Marsman said “[g]et back” and “… performed a check drill [which meant] two hands pushed to the upper chest”. The Appellant then “stumbled back” and “fell onto the kerb”. He said that Senior Constable Marsman asked him “[a]re you all right mate?” He said that he did not see any other physical contact between Senior Constable Marsden and the Appellant.

33. In his evidence Senior Constable Singh said he attended the scene in Blacktown 17 with Senior Constable Waterhouse. He said he was occupied taking statements at the Shepherd house and did not see the incident between the Appellant and Senior Constable Marsman. However, he recalled a male and female arriving at the scene. He recalled that the male “… start[ed] to walk towards the – where the offender’s house is and I think he said something along the lines of that he was going to confront Mr Bond”. He said that the male “appeared angry”.

34. Senior Constable Marsman said that he was driven to the scene by Senior Constable Nissan in Blacktown 16. He said that Blacktown 16 “… was parked somewhere in the vicinity of Mr John Bond's house”. Mr Bond was arrested and placed in Blacktown 16, but then he was transferred to Blacktown 17 when it moved alongside Blacktown 16. Senior Constable Marsman said his “… role was to watch Mr Bond’s actions inside of ... the caged vehicle, as I had a duty of care over him”.

35. Senior Constable Marsman said he then heard the Appellant “… screaming at the top of his voice, “I’m going to fucking kill him. He’s a paedophile’”'. He saw the Appellant walk in an “aggressive manner” towards him. Senior Constable Marsman said he told the Appellant to stop as Mr Bond was in custody. The Appellant continued to walk towards him. One of the Appellant’s hands formed a “clenched fist”. He again told the Appellant to stop because he believed that, if the Appellant did not stop, “[h]e would [have] gone straight to where Mr Bond was … and maybe attacked him or attacked myself”. Senior Constable Marsman was then asked:

“Q.   I think you told his Honour that you asked him to stop again. What did you then observe about [the Appellant’s] conduct at that point after you used the words that you say you said on the second occasion?

A.   Mr Shepherd continued to walk towards me in a fast pace. I've then again said, ‘Stop, stop, no need for this’, words similar to. Mr Shepherd has got to within a few - a metre or so of where I was standing and I have taken one step forward and using both my hands outstretched in a strategy - a defensive strategy called a check drill. I have placed my hands into his sternum, which has stopped what he was doing, pushed him backwards, forced him backwards and he has landed awkwardly in the gutter area of Delaney Drive.” (emphasis added)

36. Senior Constable Marsman denied having any intention to injure the Appellant. He said that his intention was “to stop what he was doing” and “de-escalate the situation per se”.

The Primary Judge’s Reasons

37. After summarising the evidence of each witness as noted above, the next part of the primary judge’s reasons is entitled “Plaintiff’s Submissions”. In this section, his Honour addressed, and mostly rejected, the submissions made on behalf of the Appellant to the effect that his evidence and that of his witnesses should be accepted and the Respondent’s evidence should be rejected. This part of his Honour’s judgment is the focus of grounds 1 to 6 of the appeal and is addressed in detail below.

38. Next, under the heading “Consideration”, his Honour set out the reasons for rejecting the Appellant’s case. His Honour noted the effect of s 140 of the Evidence Act 1995 (NSW) as a statutory embodiment of the test in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (at [66] to [68]). His Honour concluded that there were inconsistences in the evidence of the Appellant and his witnesses as well as “suspicious similarities” in their evidence. The identified inconsistences included whether the Appellant was calm and quiet when he approached the police. The Appellant’s brother, Sean, said he was. Ms Catania and the Appellant’s mother said he was upset and yelling. The “suspicious similarities” were that each of Ms Catania, Sean Shepherd and the Appellant’s mother said that Mr Bond was in the police wagon outside the Shepherd house as the Appellant set off towards the Bond house. This was potentially significant as it bore upon whether the Appellant’s intention was to harm Mr Bond as he approached the police outside the Bond house. His Honour observed:

“Not one of the three saw Mr Bond in a police vehicle in front of the Shepherd house. I infer that this evidence was given consciously in an attempt to answer the suggestion that Mr Shepherd knew or believed that Mr Bond was not present in a vehicle at the Bond house, and could not have been intent upon harming him.”

39. His Honour described the evidence from the various police officers as “consistent and persuasive” and that nothing in “… their demeanour nor the content of their evidence gave me reason to doubt their truthfulness.”

40. His Honour then set out his “Findings” concerning the circumstances in which the Appellant was hurt. His Honour concluded that, when the Appellant arrived at his parents’ house, his judgement was affected by alcohol, and that, “[a]fter seeing his father in the ambulance … Mr Shepherd believed that Mr Bond was in one of [the] police vehicles outside the Bond house.” He approached the police vehicles outside the Bond house “… at a fast pace, yelling, screaming and threatening …”. A police officer called on him to stop but he continued walking towards the police vehicles. Senior Constable Marsman then applied a “check drill” to the Appellant’s chest. His Honour found that when he did so he believed that the Appellant was intent upon harming Mr Bond. His Honour concluded that Senior Constable Marsman’s response was reasonable, in accordance with police procedures and was not undertaken with an intention to injure the Appellant. His Honour found that the Appellant fell down only once, but did so “… awkwardly across the gutter causing his osteoporotic left femur to fracture”.

Grounds 1 to 4: Hospital notes and Alleged Finding of Collusion

41. None of the grounds of appeal raise any issue concerning the scope or application of any provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Instead, the Appellant’s attack concerns the primary judge’s reasons for resolving the factual disputes between the parties. Grounds 1 to 4 of the Amended Notice of Appeal are as follows:

“The Hospital Note

1   The primary judge failed to accord any, or any proper, weight to the contemporaneous notes from Blacktown Hospital (“the Hospital Notes”) (J[63]).

2   The primary judge erred by failing to give adequate reasons for discounting the weight of the Hospital Notes.

3   The primary judge erred in implicitly finding that the appellant and Shirley Shepherd had colluded and concocted their evidence regarding the interaction between the appellant and Constable Marsman (“the interaction”), before the Hospital Notes were made, in circumstances where there was no evidence to support that finding (J[61]).

4   In finding that the appellant and Shirley Shepherd had colluded and concocted their evidence regarding the Interaction, before the Hospital Notes were made, the primary judge denied the appellant procedural fairness, in circumstances where:-

(a)   that formed no part of the respondent’s case;

(b)   it was not put to either the appellant, or Shirley Shepherd, in cross-examination, that they had colluded and concocted their evidence regarding the Interaction, before the Hospital Notes were made; and

(c)   Shirley shepherd was cross-examined to the effect that the appellant had told her what had happened between him and constable Marsman, not the obverse.” (bold emphasis in original, italicised emphasis added)

42. In his written submissions the Appellant sought leave to add a further ground of appeal to the effect that “[t]he primary judge erred in failing to find that Constable Marsman fractured the [A]ppellant’s leg by kneeing him to the thigh after he had put the [A]ppellant to ground”. As I understand this additional ground only seeks to clarify that the exising grounds of appeal are sought to be deployed as a means of challenging the primary judge’s ultimate findings of fact as to how the Appellant was injured which are set out above. Consistent with this, the Appellant did not seek a judgment in his favour but only an order for a new hearing. Ground 1 of a Notice of Contention filed by the Respondent seeks to support the ultimate factual findings by the primary judge even if these grounds succeed. Hence as between the parties there is an issue of the materiality of the reasoning sought to be attacked by these findings to the ultimate finding of fact made by the primary judge.

42. As noted, these grounds are directed towards that part of the primary judge’s reasons which addressed and rejected the submissions made on behalf of the Appellant. The parts of that reasoning that are relevant to grounds 1 to 4 are as follows:

“58   Mr Toomey submits that the content of ambulance and hospital records corroborate the plaintiff’s account.

59   The ambulance record contains the statement: Patient was allegedly involved in altercations with police whereby he was thrown to the ground. The hospital notes on admission at 3:34 AM record that Mr Shepherd Was brought in by ambulance to Blacktown with right upper leg pain following an alleged assault, and Reportedly tackled by police into gutter. The statements are not inconsistent with the defence case.

60   A note taken at 10:02 AM the notes records: Fell into gutter when tackled onto right side of hip police and pinned him to ground with knee on right thigh.

61   I take into account Mr Toomey’s submission that it is improbable that Mr Shepherd concocted this version of events so soon after his injury. However by this time he had spoken with his mother who attended the hospital the previous night and discussed the incident with him.

62   An occupational therapist on 15 August 2017 recorded: Patient has a [fracture?] due to a scuffle with police. I do not believe that any reasonable person would record Mr Shepherd’s present account of the event as merely a scuffle.

63   I do not accept that the records, based entirely on what Mr Shepherd told medical staff, outweigh the evidence of the police.” (emphasis in original)

Evidence and Submissions before the Primary Judge

44. Critical to addressing the grounds of appeal is to note that in this passage his Honour addressed a submission made by Senior Counsel for the Appellant to the effect that the ambulance and hospital notes support the Appellant’s version of events.

45. To that end, Senior Counsel took the primary judge to the ambulance note referred to in [59] of the above reasons. The document notes that it was printed at 04.02am on 12 August 2014. It records “pt [patient] in care … pt was alledgely [sic] involved in altercation with police whereby, he was thrown to the ground. nil weapons used. O/E. pt alert, orientated and well perfused. … pt denies any head injury or pain … all observations within normal limits. Pt stable enroute to hospital.” It was submitted to his Honour that this entry in the ambulance notes was the first history given by the Appellant which was “give[n] at the scene of the accident in circumstances where it is highly unlikely … that the plaintiff would be giving a history to the ambulance officers with a view to bringing some sort of civil action against the police some years later”. It was submitted that the reference to being “thrown” to the ground was inconsistent with “a shove to the chest”. Senior Counsel for the Respondent submitted to the primary judge that the Appellant “may well have thought that he was thrown to the ground” by the “check drill”.

46. The entirety of the hospital note recording the admission at 3.34am, referred to in [59] of the primary judge’s reasons, was not included in the appeal books provided to this Court. An extract from the note contains the entry “[r]eportedly tackled by police into gutter”. A hospital note apparently made at 8.57am on 12 August 2014 records that a visitor was in attendance. In cross‑examination, the Appellant’s mother said that she visited him in hospital. A note apparently made at 10.08am the same day, being the note referred to in [60] of the primary judge’s reasons, records that the patient complained of “[p]ainful Right hip after a police tackle allegedly” and provided a history of preventing injury, ‘[f]ell into gutter when tackled – onto right side of hip and police pinned him to ground with knee on right thigh allegedly.”

47. In relation to the ambulance note and the note apparently made at 10.08am, Senior Counsel submitted to the primary judge that the reference to the use of the knee in the latter, was inconsistent with Senior Constable Marsman’s evidence. It was contended that it was “… powerful evidence … and … a contemperaneous record which … [was] … highly likely to be accurate”.

48. The occupational therapist’s note referred to in [62] of the primary judge’s reasons records “pt has #NOF [fractured neck of femur] … to a scuffle with police.”

49. Senior Counsel for the Respondent embraced an observation of the primary judge in argument that the ambulance and hospital records are “… not entirely incompatible with either version”. Senior Counsel submitted that, at the time the records were prepared, the Appellant was “… unlikely to be a good historian because of what happened to him and the state he was in and we don’t know exactly what he said to those who were treating him at Blacktown Hospital”. It was submitted on behalf of the Respondent that the Appellant’s and his mother’s evidence was a “reconstruction” (as opposed to a concoction).

Submissions in this Court

50. The Appellant’s written submissions in support of these grounds point to [60] and [61] of his Honour’s reasons. The submissions contend that it can be inferred that the primary judge put aside the hospital note made at around 10.02am on 12 August 2014 on the basis that the note was “… the result of collusion between the appellant and his mother and had indeed been concocted”. The submissions noted his Honour’s finding that “the records, based entirely on what [the Appellant] told medical staff, [do not] outweigh the evidence of the police”.

51. The Appellant’s submissions contended that this approach of the primary judge was erroneous for two reasons. First, it was submitted that the issue was not whether the notes outweighed the police evidence, but whether “… the appellant’s evidence was to be seen in a more favourable light, and that of the police to be seen in a less favourable light, given the inherently likely reliability of the account, its consistency with the appellant’s case, and its [supposed] irreconcilable inconsistency with that of the respondent”. Second, it was submitted that the “apparent finding of collusion and concoction” was not put to any of the Appellant or his witnesses, and amounted to a denial of procedural fairness.

52. Overall, it was submitted that the hospital note recorded at 10.02am on 12 August 2014 was “undeniably entitled to considerable weight” as it “had been made at a time when the appellant was undoubtedly in extreme discomfort and the account was being provided for a purpose completely divorced from any future litigation” namely “the treatment and management of his injury”.

53. Amongst other matters, the Respondent’s written submissions in this Court denied that the hospital notes were as deserving of the weight that the Appellant seeks to attribute to them. They emphasise that the notes make reference to the Appellant falling into the gutter whereas the Appellant said he fell into a grass strip between the gutter and the footpath, and the notes do not support the Appellant’s evidence that he could not get up because he was in pain. The Respondent submitted that his Honour did not make a finding that the hospital note was the result of collusion between the Appellant and his mother. It was submitted that the primary judge placed some weight on the records but did not consider them and the Appellant’s other evidence outweighed the Respondent’s witnesses.

Consideration

54. These grounds of appeal are predicated on it being concluded that his Honour “implicitly” found that the Appellant and his mother colluded and concocted their evidence about the Appellant’s interaction with Senior Constable Marsman. If that is the proper construction of the primary judge’s reasons, then I would uphold these grounds and then consider whether or not a new trial should be ordered. However, I do not accept that his Honour made any such findings. Although the primary judge found that the Appellant and his mother were unsatisfactory witnesses, and an aspect of the Appellant’s mother’s evidence was suspicious, nowhere in the judgment did his Honour expressly find that the Appellant or his mother deliberately lied or were otherwise dishonest. Witnesses to an event can discuss the event afterwards and thereby influence each other’s recollection without either of them engaging in or procuring a concoction or fabrication or otherwise acting dishonestly. There is nothing sinister about the Appellant’s mother having spoken to him at the hospital before the note referred to in [60] of the primary judge’s reasons was made and I do not accept that his Honour treated it that way. If his Honour had made such a (severe) finding then, given the careful manner his Honour expressed his credibility findings in the balance of the reasons, it can be expected that his Honour would have said so expressly.

55. Instead, in [61] of the primary judge’s reasons his Honour was addressing the Appellant’s submission made to his Honour, and repeated in this Court, that the hospital note made at 10.02am on 12 August 2014 was deserving of great weight. His Honour’s response to that submission was that any weight to be attached to the note was diminished by the potential that the Appellant’s recollection at that time was influenced by his discussion with his mother. Nothing in that reasoning contains the implicit finding assumed by ground 3 or involves a breach of procedural fairness.

56. Otherwise, nothing in the primary judge’s reasoning on this topic was erroneous. It was open to his Honour to conclude that the ambulance note and hospital note described in [59] of the primary judge’s reasons was “not inconsistent” with the Respondent’s case. As was submitted by the Respondent at first instance, the Appellant may well have perceived the application of a check drill that resulted in his leg injury as him being “tackled” or “thrown” to the ground. Otherwise, at most these notes record prior consistent statements of the Appellant. They were undoubtedly material that could be used in assessing his credit especially in relation to any suggestion that his evidence was a recent fabrication. However, the Respondent did not submit that his evidence was a fabrication and the primary judge made no finding to that effect.

57. In relation to the ground 1 of the notice of appeal, the primary judge gave what could reasonably be regarded as “proper” weight to the hospital notes. His Honour identified those notes as material that recorded, perhaps imperfectly, accounts of his injuries given by the Appellant to medical staff. Thus his Honour noted correctly that they are “… based entirely on what the [Appellant] told medical staff”. His Honour did not consider that they outweighed the evidence of the police officers which his Honour found persuasive. In relation to ground 2, the primary judge provided reasons for the weight that was afforded to the hospital notes. The fact that the Appellant strongly disputes the reasons his Honour gave does not mean that the reasons were inadequate. As noted grounds 3 and 4 of the Notice of Appeal assume that the primary judge made an implicit finding of concoction and collusion. I am not satisfied that his Honour did.

58. I would reject grounds 1 to 4.

Grounds 5 and 6: The Re-Enactment

59. Grounds 5 and 6 of the Amended Notice of Appeal state:

“The Re-Enactment

5   The primary judge erred by failing to make a determination as to whether Constable Nissan and Constable Marsman had participated, together, in a re-enactment of the interaction between the appellant and Constable Marsman (“the Re-Enactment”) arranged by the respondent’s solicitors ahead of the two men giving evidence in the case.

6   The primary judge erred in failing to deal at all with the submission that the evidence of Constable Nissan and Constable Marsman was contaminated by their joint participation in the Re-Enactment.”

Evidence and Submissions before the Primary Judge

60. In cross-examination on the fourth day of the hearing, Senior Constable Nissan was asked whether he was aware of a reconstruction of the incident prepared for the purpose of the first hearing that was video recorded. He denied any knowledge of the reconstruction or any such recording. He denied that he had returned to Delaney Drive for any reason related to the Appellant.

61. On the next day of the hearing, Senior Constable Marsman was cross‑examined about the reconstruction. He said that it was initiated by Counsel and Solicitors for the Respondent. He initially said that he could not recall whether another officer participated by playing the role of the Appellant. He was then cross-examined about his recollection of events and reference was made to the re-enactment. Senior Counsel for the Appellant then played the recording of the re‑enactment. The visual perspective of the recording is that of the Appellant approaching Senior Constable Marsman. The Appellant’s role is played by a police officer but their face is not shown. From hearing the voices in the video recording of the re‑enactment, Senior Constable Marsman immediately recognised Senior Constable Nissan as the officer in the recording (“no doubt about that”). Senior Constable Marsman agreed that “… we would have had to have some form of conversation about it”. It was suggested to Senior Constable Marsman that their involvement had the potential to “contaminate” his evidence and that of Senior Constable Nissan. Senior Constable Marsman replied that “[w]e weren’t thinking like that at the time ... [w]e were just trying to re-enact the video for the lawyers as best we could.”

62. The recording was tendered at the conclusion of the cross-examination. There was no re-examination on the topic of re-enactment. There was no request to recall Senior Constable Nissan. He was not shown the video recording of the re-enactment in his evidence.

63. The Appellant’s written submissions to the primary judge contended that “[t]here can be no doubt that the evidence of Marsman and Nissan has been contaminated by their joint participation in the re-enactment.” In oral submissions, Senior Counsel for the Appellant contended that Senior Constable Nissan was “alive” to the impropriety of participating in the reconstruction and “… he chose to simply deny that he’d been involved in it”. It was contended that the primary judge “… would find that he [Senior Constable Nissan] was involved in it [i.e., the re-enactment] on the evidence of [Senior] Constable Marsman and that [Senior] Constable Nissan has not told the truth concerning his involvement in that re-enactment because he realised that it had the potential to undermine his evidence”.

Primary Judge’s Reasoning

64. His Honour addressed the submission made concerning Senior Constable Nissan’s evidence and the re-enactment as follows:

“54   A further submission by Mr Toomey is that Constable Nissan lied in his evidence that he did not participate in the video re-enactment with Constable Marsman because Constable Marsman identified Constable Nissan in the video. Mr Toomey asserts that "it is impossible to believe that he could have had no recollection whatsoever about his involvement in the reconstruction."

55   Two other possibilities are available. First that Constable Nissan had genuinely forgotten the re-enactment, and second that Constable Marsman's identification is mistaken. The face of the person identified by Constable Marsden in the video as Constable Nissan is not clearly apparent.

56   Mr Toomey says that Constable Nissan lied about his presence at the re-enactment because he knew that any discussion by witnesses of contentious events would be improper. I do not believe that submission to be sound. The police were asked by the defence solicitors to stage the re-enactment. It would be impossible to cooperate in a re-enactment unless there was some discussion as to what happened.

57   I do not believe that small discrepancies in the evidence of the police witnesses, or the failure to fully record the events in police notebooks detract from the substance of the defence case.” (emphasis in original)

Submissions and Consideration

65. The Appellant’s written submissions in this Court echoed the grounds of appeal. It was contended that his Honour saw nothing improper in both officers being involved in the reconstruction of the incident. It was submitted that this “… might explain why the appellant’s argument that their evidence was contaminated and ought to be given less weight” went effectively unaddressed by the primary judge. In particular, it was contended that his Honour made:

“… no finding as to whether or not Nissan had participated in the re-enactment, dealing only with the submission that Nissan had lied in denying his involvement, by finding that he might have forgotten. That, it is submitted, is exceedingly unlikely. In any event, Nissan did not say that he could not recall participating, but rather actively denied having done so.”

66. It was submitted that these failures constitute an error in a case where an assessment of the credibility of the respective witnesses was crucial and this was said to be “… a major attack on two of the respondent’s critical witnesses”.

67. These submissions do not properly engage with his Honour’s reasons and the manner in which this issue arose at the hearing. His Honour was confronted with a submission that Senior Constable Nissan lied about his involvement in the re‑enactment in circumstances where he was not shown the recording of the re-enactment and it was not suggested to him in cross‑examination that he had lied about his participation. Given those matters, his Honour was not obliged to make a finding about Senior Constable Nissan’s participation in the re-enactment, especially as this was only one of numerous matters that were raised that went to his and Senior Constable Marsman’s credit.

68. Further, in addressing the Appellant’s submission, his Honour did not positively find that Senior Constable Nissan forgot whether he was involved in the re-enactment. Instead, his Honour referred to that as one of two alternative explanations to the submission made by the Appellant that Senior Constable Nissan lied about his involvement in the re-enactment. The other explanation was that Senior Constable Marsman was mistaken. However, instead of resolving that issue, in [56] of the reasons, his Honour addressed the submission that Senior Constable Nissan lied by concluding that, even if Senior Constable Nissan did participate in the re-enactment of the incident with the plaintiff, his denial of doing so was not a lie much less a lie motivated by a consciousness that his involvment was improper. In so reasoning, his Honour addressed the precise submission that was made on behalf of the Appellant orally and did so in terms that addressed the submission made in writing. Otherwise, his Honour’s rejection of the submission that Senior Constable Nissan lied because he knew that his involvement in the re-enactment was improper was no doubt significantly informed by the advantages his Honour enjoyed in observing him give evidence (Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22).

69. Grounds 5 and 6 are all predicated on his Honour being obliged to make a finding that Senior Constable Nissan participated in the re-enactment. For the reasons just explained I do not accept this his Honour was obliged to do so. His Honour otherwise addressed and rejected the submission that Senior Constable Nissan lied.

70. I would reject grounds 5 and 6.

Respondent’s Notice of Contention

71. As noted, the Respondent filed a Notice of Contention. Ground 1 contended that, even if any or all of grounds 1 to 6 were made out, then they do not affect the ultimate findings made by the primary judge described above (at [40]). This is not something that should be raised by a Notice of Contention but instead addresses whether or not the grounds of appeal raise some matter that, if upheld, would warrant an order for a retrial, i.e., whether “some substantial wrong or miscarriage has been thereby occasioned” (Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1)). In light of the rejection of the grounds of appeal it is not necessary to decide this. However, it suffices to state that, had I found there was a failure to afford procedural fairness in respect of a finding concerning the credibility of the Appellant and his mother, then an order for a new trial would have been difficult to resist (see Mastronardi v State of New South Wales [2007] NSWCA 54 at [82] to [88]).

71. Ground 2 of the Notice of Contention seeks to uphold the primary judge’s orders on the basis that his Honour’s ultimate findings of fact would support some of the specific defences that were pleaded by the Respondent such as “self-defence” at common law or under s 52 of the Civil Liability Act 2002 (NSW) (the “CLA”), or that the injury to the Appellant occurred at the time or following his conduct that constituted a “serious offence” within the meaning of s 54(1) of the CLA. However, the premise of the appeal was that his Honour’s ultimate findings of fact were fatal to the Appellant’s claim. If they remain undisturbed then there is no necessity to address any such specific defence.

72. In the event that a new trial had been ordered, ground 3 of the Notice of Contention seeks to set aside the award of exemplary damages. It was submitted that such an award must be dependent on the facts found that give rise to any liability on the part of the Respondent which in turn would depend on the outcome of the further trial. It was also submitted that the amount awarded was otherwise outside the “reasonable range”. It is not necessary to address the latter contention. In relation to the former contention, the primary judge’s assessment of exemplary damages was premised on a finding that “… Constable Marsman intentionally struck [the Appellant] with his fists and knees” and an “…accept[ance] of [the Appellant’s] account of the circumstances in which his injuries occurred”. Given the varying accounts of how his injuries occurred, even amongst the Appellant’s witnesses, and the range of matters that could affect an assessment of exemplary damages, any order for a retrial on liability would have necessarily required a reconsideration of the amount of exemplary damages, if any, to be awarded.

Conclusion

74. It follows that I consider the appeal must be dismissed. I propose the following orders:

1. Appeal dismissed.

2. The Appellant pay the Respondent’s costs of the Appeal.

**********

Endnotes

Decision last updated: 11 August 2022