State of New South Wales v Shepherd

[2019] NSWCA 261

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

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

Hearing dates:

17 September 2019

Date of orders:

25 October 2019

Decision date:

25 October 2019

Before:

Bell P, Meagher JA, Simpson AJA

Decision:

1.   Appeal allowed.

 

2.    Set aside the judgment and orders of the District Court dated 7 March 2019.

 

3.    Remit the proceedings to the District Court for retrial.

 

4.    Order that the respondent pay the appellant’s costs of the appeal.

 

5. Grant a certificate under the Suitors’ Fund Act 1951 (NSW) to the respondent in respect of the costs of the appeal.

 6.    Order that the costs of the trial at first instance be costs in the retrial.

Catchwords:

APPEAL – procedural fairness – absence of reasons to support critical finding of fact – absence of reasons to support rejection of account of critical issue by witnesses on both sides of the record – no basis in the evidence to support the finding in fact made or the critical issue – need for a retrial

Legislation Cited:

Suitors’ Fund Act 1951 (NSW)

Cases Cited:

Bell v Commissioner of Taxation [2012] FCA 1042
Bruce v Cole (1998) 45 NSWLR 163
Fleming v R (1998) 197 CLR 250; [1998] HCA 68
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; [1983] 53 LGRA 325
ISS Facility Services (NSW) Pty Ltd v State of New South Wales [2016] NSWCA 87
Keith v Gal [2013] NSWCA 339
Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32
Li v Attorney General for New South Wales [2019] NSWCA 95
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Palmer v Clarke (1989) 19 NSWLR 158
Pettitt v Dunkley [1971] 1 NSWLR 376
Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA 7
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47
Toll Pty Ltd v Harradine [2016] NSWCA 374
Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
L V Gyles SC with G W Keesing (Appellant)
D R J Toomey SC with S J Holmes (Respondent)

  Solicitors:
Makinson D’Apice Lawyers (Appellant)
Burston Cole & Associates (Respondent)

File Number(s):

2019/89863

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

7 March 2019

Before:

Craig QC ADCJ

File Number(s):

2016/202999

Headnote

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

The State of New South Wales, the appellant, was the defendant in proceedings brought in the District Court of New South Wales by Mr Justin Shepherd, the respondent to the appeal. The proceedings arose out of an incident between the respondent and Constable Marsman, a member of the New South Wales Police Force, as a result of which the respondent was injured. The critical issue was how the respondent sustained his injury, and whether it gave rise to liability for which the State was responsible.

The respondent and Constable Marsman gave radically differing accounts of the nature of the physical interaction between them, with the respondent stating that Constable Marsman had physically thrown him over his leg and kneed him in the groin repeatedly, whilst Constable Marsman indicated that there was only one physical interaction involving a “first check-drill”, which the primary judge accepted involved the use of necessary reasonable force. The judge went on to find, however, that there was a second check-drill which was not defensible.

The primary judge did not accept either Constable Marsman’s account or that of the respondent, but made a finding relating to the interaction which was adverse to the State but which did not accord with any evidence given in the case. Mr Shepherd was awarded a sum of $515,661 by way of damages together with costs.

The State of New South Wales lodged an appeal to the Court of Appeal. The respondent filed a notice of contention seeking to uphold the judgment on an alternative basis, which he submitted was supported by evidence tendered in the proceedings to which, it is said, no consideration was given by the primary judge.

The principal issues on appeal were:

1. Whether the primary judge erred in failing to give proper reasons for his finding on the critical issue and whether there was an absence of evidence to support that finding;

2. Whether the primary judge erred in failing to give adequate (or any) reasons for his rejection of the account of the critical issue by witnesses on both sides of the record;

3. Whether the judgment should nevertheless be upheld on the alternative basis contended for.

The Court held, allowing the appeal:

1. The primary judge erred in failing to provide reasons to support his finding on the critical issue, and there was no basis in the evidence to support his finding of fact on this issue: [28], [31], [33], [39]-[41].

2. The primary judge erred in failing to give adequate (or any) reasons for rejecting the account of the critical issue by the respondent and Constable Marsman: [28]-[30], [38]-[39].

3. As to the argument that the judgment should nevertheless have been upheld by reference to specific evidence to which the primary judge gave no consideration, such a conclusion could not be reached by the Court as this would necessarily involve a review of all of the evidence and an assessment of the witnesses who gave evidence as to the incident. There therefore had to be a retrial: [45]-[52].

Judgment

1. THE COURT: On 7 March 2019, Acting Judge Craig QC, sitting in the District Court of New South Wales, handed down a judgment in which he found that the plaintiff, Mr Justin Wayne Shepherd (who we shall refer to in this judgment as the respondent) was injured as a result of the battery he sustained at the hands of Constable Marsman on 12 August 2014 in circumstances we shall describe more fully later in these reasons.

2. In a separate judgment given on 9 April 2019, the primary judge made orders awarding the respondent a sum of $515,661 by way of damages together with costs on the ordinary basis to 23 September 2017 and, thereafter, on an indemnity basis.

3. The State of New South Wales (the appellant) appeals against those orders, both as to liability and damages.

4. The respondent, by notice of contention, seeks to uphold the decision on an alternative basis which he submits is supported by hospital notes tendered in the proceedings, together with certain evidence of Constable Marsman to which, it is said, no consideration was given by the primary judge.

Background facts

5. The following factual matters expressed in summary form were found by the primary judge and not challenged on appeal.

6. On 12 August 2014, shortly before 2.00am, police attended residential premises in Doonside in response to a report that two men were fighting, with one man injured and bleeding. An ambulance arrived at the premises shortly after the police officers. Upon arrival, the police officers observed a man lying in the driveway. That man, Mr Garry Shepherd, was the respondent's father. The officers were told that the head wounds suffered by Mr Shepherd had been inflicted by a neighbour, Mr John Bond.

7. While Mr Shepherd was being treated in the ambulance, police officers attended the premises of Mr Bond two doors up the road where he was arrested. Following his arrest, Mr Bond was placed in the rear of a police van, BN17, with the intent that he be conveyed to Blacktown Police Station to be interviewed and charged.

8. The altercation between Mr Bond and Mr Shepherd occurred in the context of an already acrimonious relationship between the two men, which had previously led to physical altercations and an Apprehended Violence Order (AVO) being made against Mr Bond in favour of Mr Shepherd. The acrimony was caused by a conversation between Mr Shepherd and the respondent, in which the respondent (who earlier in his life had formed a romantic relationship with Mr Bond's daughter) informed Mr Shepherd that Mr Bond had sexually molested his daughter and her sibling. The respondent was generally aware of the acrimony and the circumstances that had given rise to the issue of the AVO in favour of his father, Mr Shepherd.

9. The respondent was not present during the 12 August 2014 altercation. He arrived a short time afterwards and saw his father in the ambulance. He then proceeded down the road towards some police officers and two police vehicles.

10. As to the respondent's subsequent interaction with the police officers, at the time at which the respondent first observed the police, there were three police officers in the vicinity of those vehicles but as the respondent approached, there was only one police officer who was standing adjacent to the vehicle BN17 in which Mr Bond was detained, namely Constable Marsman.

11. When the respondent approached Constable Marsman and BN17 he was walking quickly, calling out in a loud voice and repeating several times “[a]re youse going to, finally, do your fucking job now? Is this what it fucking takes?” and “[h]e is a fucking paedophile. I am going to kill him.”

12. As the respondent was crossing the intersecting road towards BN17, Constable Marsman asked him who he was and to stop. The respondent continued on his path towards BN17, and Constable Marsman repeated the direction to stop with outstretched arms and palms raised, with a pushing motion in and out to indicate that the respondent should stop.

13. The respondent nonetheless continued towards Constable Marsman and BN17, as a result of which Constable Marsman moved towards the respondent at a slower pace than that at which the respondent was walking.

14. When the distance between the two was reduced to about 1.5 metres, the respondent, who was then at arm's length from Constable Marsman, was forcefully pushed in the chest by Constable Marsman in a defensive action known as a “check-drill”. The respondent then lost his balance and fell so that he was lying partially on the nature strip with his hip and leg close to or over the gutter.

15. The “check-drill” action was described by one of the police officers who gave evidence, Sergeant Mark Kneipp, as:

“… a manoeuvre that’s performed by an officer to create distance between yourself and someone else, particularly if they’re warned to get back. But the manoeuvre is basically palms up, and it’s a quick push to the solarplexus of the other person – the chest – to create distance. It’s just a quick shove, and that motion, to create distance. That’s what a check drill is.”

16. In relation to the first check-drill, the primary judge made the following finding at [212] of his judgment:

“With those observations in mind, I accept that the first check-drill procedure adopted by Constable Marsman would, if that is where the confrontation ended, have involved the reasonable use of force necessary for the exercise of his function that morning. I do not regard the difference in height and apparent strength between Constable Marsman and the plaintiff as impacting upon the conclusion that reasonable force was used in the first check measure. The height and physique of Constable Marsman had, of itself, not deterred the plaintiff in continuing his path towards the Constable and there was no reason to suspect in the exigencies in the occasion, that the plaintiff would not be able to achieve one of his apparent objectives of reaching the police vehicles. In the passage of transcript that I have quoted at [100] Constable [Marsman] observed that he did not know the plaintiff ‘from a bar of soap’ and did not know whether he had any weapon in his pocket. That, so it seemed to me, was not an unreasonable response, and was one that I regarded as being genuinely expressed by Constable Marsman.”

The critical issue

17. The critical issue for the purposes of this appeal is what, if anything, happened next after the circumstances we have described in [14] above and whether the primary judge’s finding involved error and/or a denial of procedural fairness to the appellant.

18. There were two radically differing accounts advanced by the respondent and Constable Marsman.

19. The respondent’s account as summarised by the primary judge at [28]-[29] was that:

“ …he, the plaintiff, then attempted to stand up. However, he says when he attempted to do that he was told to stay down. He refused to do so as he described the ground as being wet and ‘there was bindy in the grass’.

As he stood, the plaintiff says that he attempted to put his shoes on as they had been knocked off by the impact of the initial tackle or shoulder charge. When he was told to get back on the ground, he refused to do so saying ‘We're the fucking victims.’ The same police officer again demanded that he get to the ground ‘or he will knock me back to the ground.’ (T44:48-49). The plaintiff responded by saying to the officer that he was ‘a fucking hero’. Following that statement, the plaintiff says that he was ‘grabbed and thrown over his - his leg, his waist area’, resulting in the plaintiff being thrown to the ground ‘towards the gutter’ and that the police officer then started striking him with his knee. The plaintiff further stated that when he landed he was in the gutter. The police officer still had hold of the plaintiff's shirt and then proceeded to knee him in the groin. After that had proceeded for a time, the plaintiff describes the following to have occurred (T45:41-50):

‘A.   But the last time that he got up from me and jumped back into my groin area, that's when he got me on the inner thigh and that's what broke my hip and femur.

Q.   What did you feel, hear, see at that point in time?

A.   I felt just the worst pain I've ever had in my life. Now, do I have to explain? The pain was that severe to me, I actually vomited with the pain.

Q.   Where was the pain?

A.   In the groin and hip. Not upper leg; hip and groin.’”

20. The account of Constable Marsman was that there was only one physical interaction, that being the first check-drill the subject of the finding referred to at [16] above. On Constable Marsman’s account, the respondent fell awkwardly after the first check-drill and screamed out in pain when he did so. The primary judge recorded at [105] that:

“In response to questions from the plaintiff's counsel, Constable Marsman denied that he had tackled the plaintiff, prevented him getting to his feet when he first fell and also denied throwing him over an outstretched leg causing him to land in the gutter. He denied kneeing the plaintiff and stated that he did not hear the plaintiff saying, as he approached, ‘Are youse now going to do your fucking job.’"

21. The primary judge also summarised evidence that had been given in support of the respondent’s account by his mother, his brother and his then girlfriend, as well as evidence given in support of Constable Marsman’s account by other police officers.

22. At [165]-[194] of his judgment, the primary judge reviewed what we will compendiously refer to as the corroborating evidence. He pointed to inconsistencies and difficulties with the corroborating evidence on both sides of the record. With one exception, which related to the evidence of a Constable Waterhouse, the appellant makes no criticism of the primary judge’s analysis and assessment of this evidence.

23. At [195] of his decision, having reviewed differences in the accounts of various police witnesses as well as differences in the accounts of witnesses called on behalf of the respondent, the primary judge said that:

“While the differences do not directly impugn the evidence of Constable Marsman, they do reduce the weight of the evidence called by the defendant to corroborate Constable Marsman’s evidence. The same should be said of the differences between the evidence called to corroborate the plaintiff’s description of what occurred. That results in the evidence given by each of the plaintiff and Constable Marsman as being the evidence upon which I have closely focussed in order to determine what, on the balance of probabilities, occurred on the morning of 12 August 2014 in Delaney Drive Doonside.”

24. Having made this observation the primary judge continued: “[f]ounded upon the evidence I have discussed and distilling from that evidence the more likely course of events, I make the following findings …”. He then made the following findings in relation to the critical issue:

“(12)   The plaintiff then rose, after being told to stay down, and said to Constable Marsman that he, Marsman, was a ‘Fucking hero’ and then persisted in questioning Constable Marsman about the police doing their job.

(13)   When the plaintiff persisted, Constable Marsman moved towards the plaintiff and again pushed him forcefully in the chest with both hands, causing the plaintiff to fall and strike the edge of the gutter in the area of his right hip, occasioning the fracture of his right femur.”

No basis in the evidence and no reasons given

25. It is evident that the finding expressed in (13) above did not involve an acceptance of either the respondent’s account of “the critical issue” or that of Constable Marsman.

26. On the respondent’s account, Constable Marsman had not on this second occasion pushed him forcefully in the chest with both hands (what the primary judge in [213] described as the “second check drill”) but, rather, had physically thrown him over his leg (a very different physical action to the pushing motion entailed in a check drill) and then commenced to knee him in the groin repeatedly.

27. On Constable Marsman’s account, there was only ever one check-drill, being that which the primary judge held involved the reasonable use of force necessary for the exercise of his function. His Honour also found that immediately following his fall, the respondent had cried out in pain.

28. There is no reasoning supporting finding (13) which addresses the “critical issue”. Rather it is expressed as a bare conclusion. Furthermore, there is no reasoning which explains the evident rejection of Constable Marsman’s evidence as well as the rejection of the respondent’s account of events.

29. Indeed the finding is not supported by the evidence of either of the principal witnesses or any of the corroborating witnesses. Whilst a primary judge is not bound to accept all aspects of any witness’ account, and in an appropriate case may accept parts of one witness’ account and parts of another witness’ account, the ultimate finding must have some basis in the evidence: Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 at [91]; see also Bruce v Cole (1998) 45 NSWLR 163 at 188 ; Bell v Commissioner of Taxation [2012] FCA 1042 at [84]; Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353 at [73].

30. These matters lie at the heart of the appellant’s appeal although issue is also taken with the primary judge’s rejection of the evidence of Constable Waterhouse which it is said was corroborative of Constable Marsman’s evidence. Unlike Constable Marsman’s evidence, however, the primary judge did give some reasons (at [193]-[194] of his judgment) as to why reliance may not be able to be placed on Constable Waterhouse’s evidence including an inconsistency in one respect with Constable Marsman’s evidence (as to the direction which BN17 was facing, and therefore as to his line of sight) and the incomplete state of his notebook.

31. The High Court has made it plain on many occasions that a duty to give reasons for decisions is “an incident of the judicial process”: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 667 (Gibbs CJ); [1986] HCA 7, quoting Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; [1983] 53 LGRA 325 at 332). Indeed, in Wainohuv New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [44] (Wainohu), French CJ and Kiefel J (as her Honour then was) said that “…it is … a defining characteristic of a court that it generally gives reasons for its decisions”. Further, in Wainohu at [92], Gummow, Hayne, Crennan and Bell JJ described the quelling of controversy by the giving of reasons as a “hallmark distinguishing substantive judicial decisions from arbitrary decisions”.

25. A failure to give reasons, or to give adequate reasons, can in certain circumstances amount to an error of law: Fleming v R (1998) 197 CLR 250; [1998] HCA 68 at [22], citing Pettitt v Dunkley [1971] 1 NSWLR 376 (Pettitt). The precise content of the duty to give reasons for judicial decisions varies depending on the nature of the decision in question: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (Soulemezis).

26. It is clear, however, that a trial judge should provide reasons for findings on material factual issues. As Emmett AJA (with whom Leeming JA and Payne JA agreed on this point) said in ISS Facility Services (NSW) Pty Ltd v State of New South Wales [2016] NSWCA 87 at [47]:

“Normally, the contents of an adequate statement of reasons include a reference to the relevant evidence, any material finding of fact and any conclusions or ultimate findings of fact reached, the reasons for making those relevant findings of fact and conclusions, and the reasons for applying any law to the facts found. In particular, a trial judge must analyse the evidence as a whole to determine, where there are different versions of events, which of the versions should be accepted.”

34. Earlier, in Keith v Gal [2013] NSWCA 339 at [117], Gleeson JA observed that “it is essential to expose the reasoning on a point critical to the contest between the parties”. In Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2], Allsop P (as he then was) observed:

“The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression. Judgment writing should not become a process that is oppressive and that produces unnecessary prolixity. Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved. Here, critical factual enquiries were not embarked upon by the primary judge. Unfortunately, for the reasons given by Campbell JA these deficiencies mean that there must be a new trial.” (emphasis added).

35. A failure to explain the basis of a crucial finding of fact can amount to an error of law, though when it is contended that a judge’s reasons do not disclose the basis for a material finding of fact, “great care needs to be taken that dissatisfaction with the finding of fact does not mislead the [c]ourt into holding that the learned judge has failed to give his [or her] reasons for his [or her] finding”: Soulemezis at 281; see also Li v Attorney General for New South Wales [2019] NSWCA 95 at [75] and [107].

36. In Soulemezis at 279, McHugh JA (as he then was) articulated three purposes underlying the duty to give reasons for judicial reasons:

“First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment ‘is not only to do but to seem to do justice’: The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said (In Defence of Judicial Candor (1987) 100 Harv L Rev 731 at 737):

‘…A requirement that judges give reasons for their decisions – grounds of decision that can be debated, attacked, and defended – serves a vital function in constraining the judiciary’s exercise of power.’

Thirdly, under the common law system of adjudication, courts not only resolve disputes – they formulate rules for application in future cases: Taggart, ‘Should Canadian Judges Be Legally Required to Give Reasoned Decisions in Civil Cases’ (1983) 33 University of Toronto Law Journal 1 at 3-4. Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.”

37. A fourth consideration emerges from this Court’s decision in Pettitt at 382 where Asprey JA said:

“…where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge’s findings of fact and his [or her] reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his [or her] judicial office, to state the findings and the reasons for his [or her] decision adequately for that purpose.”

38. The present case is a fortiori one where it was necessary to give reasons why one witness’ evidence was preferred to that of another: see Palmer v Clarke (1989) 19 NSWLR 158 at 170; see also Toll Pty Ltd v Harradine [2016] NSWCA 374 at [70].

39. The absence of reasoning to support the primary judge’s finding that Constable Marsman engaged in a second check-drill manoeuvre, and his Honour’s failure to alert the parties to the fact that he was contemplating making a finding which was different from the plaintiff’s case as pleaded and the evidence of the respondent, had forensic ramifications for both parties.

40. Those ramifications for the appellant were obvious. What the primary judge found was quite a different case to that pleaded which was to the effect that “a member of the police force, without lawful justification, shoulder charged and/or tackled the [respondent]” and “then proceeded to strike the [respondent] on several occasions causing [him] to sustain injury, loss and damage.” The appellant was not on notice that the allegation was of a second and unreasonable check-drill manoeuvre. Procedural fairness was thereby denied to both parties. Constable Marsman was not given the opportunity to address by evidence and submissions an allegation that he engaged in a second check-drill manoeuvre. And the respondent was not given the opportunity to address a case that he did not put and which was not supported by the evidence: see State of New South Wales v Hunt (2014) 86 NSWLR 226 at [44]; [2014] NSWCA 47.

41. The appellant also challenged the primary judge’s finding at [213] of the judgment which was as follows:

“Where I do not accept that necessary reasonable force was used by Constable Marsman involved his second push a check manoeuvre upon the plaintiff. At that point in time the [plaintiff’s] momentum had been arrested. Although the plaintiff was undoubtedly maintaining his anger, manifest from his comments, Constable Marsman was then in a position to control the plaintiff’s movements by contrast with the position that pertained that lead to the first check-drill being administered. In those circumstances, I find that the force used when administering the second check-drill or push was not reasonably necessary to maintain either Constable Marsman's personal security or the security from attack upon Mr Bond. It was the plaintiff’s fall consequent upon the second check-drill by Constable Marsman that resulted in the femur fracture sustained by the plaintiff. That injury was sustained when the plaintiff landed on the concrete curb of Delaney Drive.”

42. In light of the conclusions we have reached as to the inadequacy of the reasoning on what we have described as “the critical issue”, it is not necessary to deal with the separate challenge to the primary judge’s finding that excessive force was used on the second occasion.

43. It suffices for present purposes to observe that, as was essentially accepted on behalf of the appellant, had the respondent’s account of what had transpired been accepted, no defence of necessary reasonable force would have been available or, alternatively, it would have been far more difficult to make out. Thus, a reasoned finding as to what transpired on the night in question had important ramifications for any assessment as to whether or not there was an absence of reasonable force.

44. For these reasons, subject to the notice of contention, the appeal must be allowed and a new trial ordered.

Notice of contention

45. It remains to be considered whether or not the matter raised by way of notice of contention alters any of the foregoing analysis.

46. The notice of contention is in the following terms:

“1.   The primary judge ought to have found that, having put the respondent on the ground (whether on the first or a second occasion), Constable Marsman forcefully applied his knee to the respondent’s right groin and upper thigh area, causing the neck of the respondent’s right femur to fracture.

2.   The primary judge ought then to have found that Constable Marsman’s doing so:

(a)   did not constitute a reasonable use of force in carrying out his    functions as a police officer;

(b)   did not amount to self defence; and

(c)   was otherwise unjustified.

3.   The primary judge ought to have made the findings contended for in grounds 1 and 2 on the basis, inter alia, of the history recorded in the hospital notes comprising Exhibit D in the proceedings, and the evidence of Constable Marsman himself at T315.8-13, to which no consideration was given by the primary judge.”

47. The hospital notes referred to in the notice of contention recorded that:

“Painful [r]ight hip after a police tackle allegedly

Fell into gutter when tackled – onto right side of hip and police pinned him to ground with knee on right thigh allegedly

Couldn’t get up due to severe pain in [right] [h]ip

Heard a snap

Denies any other injuries

No parasthesis or numbness in limb

Suffers with osteoporosis? [C]ause”

48. The passage from the transcript referred to in the notice of contention was as follows:

“[Counsel]:   Would you accept that if that had occurred, that would have been a gross overreaction to the situation?

[Constable

Marsman]:   Definitely.

[Counsel]:   And a gross breach of your obligations as a police officer?

[Constable

Marsman]:   Definitely.”

49. In our opinion, it is not possible for this Court to make the findings sought by the notice of contention in reliance on the hospital notes and the passage of transcript extracted above.

50. What is sought to be established would necessarily involve a review of all of the evidence, including the evidence of the respondent and Constable Marsman. It may well be that on any retrial, in a holistic review of the evidence, the hospital notes will assume particular significance, but in circumstances where there is a radical dispute between the respondent’s account including as to kneeing (which was implicitly at least rejected by the primary judge) and Constable Marsman’s account which is to the effect that there was only one fall to the ground which involved a single check-drill, this Court in an appeal by way of rehearing is not in a position to resolve these differences which raise questions of credit.

51. Further, if the respondent only fell to the ground on one occasion, the respondent would need to confront the primary judge’s finding that that occurred as the result of Constable Marsman’s use of reasonably necessary force.

52. For these reasons, the notice of contention should be dismissed.

Conclusion and orders

53. The appeal should be allowed with costs (with the respondent to be entitled to a certificate under the Suitors’ Fund Act 1951 (NSW)), the judgment of the primary judge set aside and a new trial ordered. The costs of the trial at first instance should be costs in the retrial. A similar order was made in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (Waterways).

54. In proposing these findings, we note the appellant’s submission that there should be no retrial, the outcome of his Honour’s reasons being that he did not accept the respondent’s case.

55. However, just as the primary judge did not articulate any reasons for rejecting Constable Marsman’s account, he also gave no reasons for rejecting the respondent’s account. On any view, the respondent was badly injured as a result of his interaction with the Constable. So much is not gainsaid by the appellant. The respondent is entitled to have his case determined in a trial where neither party has been denied procedural fairness.

56. In expressing this view, we note that neither party submitted that any retrial should be on the basis of any findings made by the primary judge other than those challenged on appeal. In Waterways at [17], Gleeson CJ said that “[c]onducting a new trial on the basis of a certain view of the primary facts is not impossible”. He held, however, that it was not desirable on the facts of that case. We are inclined to think that it would be similarly undesirable in the circumstances of the present case where there is such a difference in the accounts of the parties and their respective witnesses.

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Decision last updated: 25 October 2019