The State of South Australia v Crossley
[2020] SASCFC 128
•23 December 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
THE STATE OF SOUTH AUSTRALIA v CROSSLEY
[2020] SASCFC 128
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Blue)
23 December 2020
TORTS - TRESPASS - TRESPASS TO THE PERSON - WHAT CONSTITUTES AND DEFENCES THERETO
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - OTHER MATTERS
Appeal against a finding of liability for battery.
A District Court Judge awarded the respondent damages for past and future loss in the amount of $854,312.91 against the State of South Australia (the appellant) for both psychological and physical injury (including a comminuted fracture of the femoral shaft of the left leg), caused by battery committed by members of the South Australia Police Force (which comprised two sprays of capsicum spray, a number of police officers sitting on top of him, an attempted ‘figure four leg lock’ manoeuvre and handcuffing) during the course of arresting him in Bank Street on 10 March 2013. Much of the interaction was captured on CCTV.
Held per Peek J (Kourakis CJ agreeing) dismissing the appeal:
1. The Judge did not place undue weight on the CCTV footage and nor did he use it in a way that constituted “interpretation” or “misinterpretation” as distinct from observation of the images on the CCTV footage. Cuthbertson v New South Wales [2017] NSWDC 367; Goode v Angland (2017) 96 NSWLR 503 discussed. New South Wales v Cuthbertson (2018) 99 NSWLR 120 considered.
2. The Judge’s conclusions that the defence of self-defence was not made out by the appellant were well open to him.
3. It is not established that the Judge, in concluding that he accepted a version of fact inconsistent with evidence given by certain police officers, “misapprehended” or “overlooked” or “disregarded” that evidence. Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Smith v NSW Bar Association (1992) 176 CLR 256 discussed.
4. The actions of spraying the respondent with pepper spray, holding him on the ground with police officers on top of him, performing a ‘figure four leg lock’ manoeuvre and handcuffing him were unjustified and unlawful, irrespective of whether or not he had been properly informed as to the reason for his arrest. R v Stafford (1976) 13 SASR 392; Slaveski v Victoria [2010] VSC 441 discussed. Christie v Leachinsky [1947] AC 573; R v Tipping (2019) 133 SASR 58; Wilson v Pringle [1987] QB 237 considered.
Held per Peek J (Kourakis CJ and Blue J agreeing):
1. The Judge was correct in finding that SC Lovell attempted to carry out a ‘figure four leg lock’ manoeuvre by applying his full body weight across the respondent's legs while bending and twisting his left leg at the knee and that this was inherently dangerous and unjustified.
Held per Kourakis CJ (Peek J agreeing):
1. The police officers did not purport to exercise the power to require the respondent to cease loitering conferred by s 18 of the Summary Offences Act 1953. The police officers did not make clear to the respondent what lawful authority they were purporting to exercise with the consequence that all of the force used was arguably unreasonable.
Road Traffic Act 1961 (SA); Summary Offences Act 1953 (SA) s18, referred to.
Christie v Leachinsky [1947] AC 573; Crossley v State of South Australia [2020] SADC 14; CSR Ltd v Della Maddalena (2006) 80 ALJR 458; Cuthbertson v New South Wales [2017] NSWDC 367; Donaldson v Broomby (1982) 60 FLR 124; Fox v Percy (2003) 214 CLR 118; Goode v Angland (2017) 96 NSWLR 503; Johnson v Northern Territory [2016] NTSC 49; Lee v Lee (2019) 266 CLR 129; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Police v Dafov (2008) 102 SASR 8; R v Stafford (1976) 13 SASR 392; Rail Commissioner v Warner [2011] SASCFC 90; Robinson Helicopter Company v McDermott (2016) 90 ALJR 679; Slaveski v Victoria [2010] VSC 441; Smith v NSW Bar Association (1992) 176 CLR 256; Webster v McIntosh (1980) 49 FLR 317, discussed.
Hortin v Rowbottom (1993) 61 SASR 313; Hull v Nuske (1974) 8 SASR 587; New South Wales v Cuthbertson (2018) 99 NSWLR 120; R v O’Neill (1988) 48 SASR 51; R v Stafford (1976) 13 SASR 392; R v Tipping (2019) 133 SASR 58; Warke v Daire (1983) 32 SASR 321; Wilson v Pringle [1987] QB 237, considered.
THE STATE OF SOUTH AUSTRALIA v CROSSLEY
[2020] SASCFC 128Full Court: Kourakis CJ, Peek and Blue JJ
KOURAKIS CJ: I would dismiss the appeal on the ground described by Blue J as ground 3B for the reasons given by Peek J and by Blue J. I agree that it follows that the appeal must be dismissed in its entirety for the reasons given by Blue J. Nonetheless, I would also dismiss the appeal on ground 3 generally, and on ground 1, for the reasons given by Peek J.
On ground 2, I wish to draw attention to an important aspect of the obligation to announce the charge on which a person is arrested. Advising a person that he or she is under arrest, and the reason for it, allows the arrested person to make an informed decision about his or her response to the foreshadowed loss of liberty. It also allows the arresting officer to assess that response for the purpose of determining the degree of force which is reasonably required to effect the arrest. In this case, on any view of the evidence, Mr Crossley was not told he was under arrest until after the capsicum spray was first used.
The events which culminated in the use of the capsicum spray were, in no small part, the result of the police officers confronting Mr Crossley in a way which was laden with legal ambiguity. No lawful authority is required to speak to someone in an attempt to calm him or her down. However, lawful authority is required to impede a person’s freedom of movement and to corral him or her away from, or towards a particular place. It is undesirable that police officers operate in the shadows of what is lawful and what is not. The police officers did not purport to exercise the power to require persons to cease loitering conferred by s 18 of the Summary Offences Act 1953 (SA). It was the resulting uncertainty over the policing powers the police officers were purporting to exercise which is the genesis of the debate in this case over whether Mr Crossley was protesting his right to free movement on the one hand, or acting aggressively on the other. It is arguable that the failure to announce to Mr Crossley that he was under arrest before the use of the capsicum spray, given the police conduct which had preceded it, rendered all of the force subsequently used unreasonable. However, it is, as both Peek J and Blue J have observed, unnecessary to finally determine ground 2.
PEEK J: Appeal against a finding of liability for battery.
A District Court Judge awarded Mr Matthew Crossley (the plaintiff/respondent) damages for past and future loss in the amount of $854,312.91 against the State of South Australia (the defendant/appellant) for both psychological and physical injury (including a comminuted fracture of the femoral shaft of the left leg), caused by battery committed by members of the South Australia Police Force (SAPOL), during the course of arresting him in Bank Street on 10 March 2013.
The appeal is against liability only. In order to provide a brief overview of the judgment it is noted that the Judge, having made his detailed findings as to the facts and liability, added at the end of his judgment the following summary:
Summary and Conclusion
129. To sum up in brief. When the police came across what can be described as a melee in Hindley Street during the early hours of the morning in question, they either assumed, or in an on the spot assessment of the situation, considered Mr Crossley was at the centre of it. This assessment was made substantially because of his large size and the sound of his voice. Rather than attempt to sort out the causes, they resolved the best way to ‘defuse’ the situation was by removing him from the scene without arresting him. This they succeeded in achieving by encouraging him around the corner onto the Western side of Bank Street. This was a sensible and pragmatic course of action for which they cannot be criticised.
130. Mr Crossley began leaving the area by crossing Bank Street. The two police officers needlessly followed him. Mr Crossley stopped and resumed his verbal protestations as to his version of the Hindley Street events, but the police were not listening to him. As SC Carter crossed the road he readied his capsicum spray for use. As Mr Crossley continued the tirade of protest on the Eastern side of Bank Street, SC Carter formed the view that he was not leaving, and that unless he did he would be sprayed and arrested. The two acts of spraying were unjustified as there was no immediate danger or peril to anyone. Mr Crossley was not told in clear terms the reasons for his arrest, and the action of executing the leg lock in order to apply handcuffs was unnecessary and excessive, as he was already under restraint and in any case entitled to resist an unlawful arrest. This constituted a third unjustified act of battery. Since all three proven batterys were intentional, it is unnecessary to consider the alternative cause of action in negligence: Williams v Milotin, and Croucher v Cachia. [Citations omitted]
On appeal, the defendant maintains, as it did at trial, that the police officers lawfully arrested Mr Crossley for committing the summary offence of disorderly behaviour in Hindley Street and that their actions in spraying him with pepper spray (twice), holding him to the ground with police officers on top of him and attempting to perform a manoeuvre called a ‘figure four leg lock’ (which attempt caused the comminuted fracture of the left femoral shaft) and handcuffing him, were all lawful and justified in the circumstances.
The nature of appellate review generally
In the decision of this Court in Rail Commissioner v Warner, it was stated:[1]
[1] [2011] SASCFC 90 (Peek J with whom Sulan J concurred).
83. Before considering the appellants’ submissions in detail, it is worth repeating the obvious proposition that there are significant constraints on appellate review of findings of fact in civil trials heard by Judge alone, particularly where, as here, the Judge has been presented with a direct conflict between the evidence of several eye witnesses to the same event. It is well recognised that the trial Judge has primary responsibility for factual adjudication in such a situation and that his findings should not be disturbed unless good and sufficient reason to do so is positively established by the appellant.
84. In the recent decision in Sands v Channel Seven Adelaide Pty Ltd Gray J (with whom Nyland and Vanstone JJ concurred) stated:
[56] The approach of this Court is settled. The Court’s function was considered in Fox v Percy. Gleeson CJ, Gummow and Kirby JJ noted that, while an appeal court should conduct a “real review” of the trial and the trial judge’s reasons, there was nevertheless a need for “appellate respect for the advantages of trial judges”.
[57] The majority also considered that an appeal court should give weight to the trial judge’s reasons for making his or her findings. The Court should also take into account “the ‘feeling’ of a case which an appeal court, reading the transcript, cannot always fully share” and “the unexpressed conclusions” that went into the judge’s findings.
[58] In particular, the members of the High Court endorsed the statement of principle to be found in Jones v Hyde, Abalos v Australian Postal Commission, and Devries v Australian National Railways Commission, that a finding of fact by a trial judge, based on the credibility of a witness may only be set aside upon appeal where incontrovertible evidence or uncontested testimony demonstrate that the judge’s conclusions are erroneous, or that alternatively, a decision at trial may be set aside where a finding of fact is “glaringly improbable” or “contrary to compelling inferences”.
85. In referring to “the advantages of trial judges”; “the ‘feeling’ of a case which an appeal court, reading the transcript, cannot always fully share”; and ‘the unexpressed conclusions’ that went into the judge’s findings”, Gray J emphasises that appellate Courts must show restraint because the impression made by the respective witnesses on the Judge seeing and hearing them in Court may be important.
86. The three decisions of the High Court in Jones v Hyde, Abalos v Australian Postal Commission, and Devries v Australian National Railways Commission were approved in both Sands v Channel Seven Adelaide Pty Ltd and Fox v Percy, where Gleeson CJ, Gummow and Kirby JJ stated:
[26] After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges. (Citations omitted)
87. This “trilogy” of cases makes it clear that the mere fact that the trial Judge attempts to explain his preference for the evidence of one witness over another in objective and logical terms rather than expressly justifying his decision by direct reference to the advantage of seeing and hearing the witnesses, does not mean that he has not also made use of that advantage which is available only to him. This matter was emphasised in Jones v Hyde by McHugh J (with whom Brennan, Deane, Dawson, and Toohey JJ concurred) and repeated in Abalos v Australian Postal Commission by McHugh J (with whom, on this occasion, Mason CJ, Deane, Dawson, and Gaudron JJ concurred). Thus in Jones v Hyde, McHugh J stated:
It is true that the learned judge did not expressly rely on the demeanour of the plaintiff in making his findings of primary fact. But this does not mean, as Mr Ellicott submitted, that an appellate court is in as good a position as the trial judge to determine the primary facts of the case. When a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his determination cannot be overlooked. It does not follow that, because the learned judge made no express reference to demeanour and credibility, they played no part in his conclusion: cf Martin v Option Investments (Aust) Pty Ltd [No 2] [1982] VR 464 at 468.
88. And in Devries v Australian National Railways Commission Deane and Dawson JJ stated:
Indeed, as Kirby ACJ pointed out in Galea v Galea [(1990) 19 NSWLR 263, 266], in many cases today, judges at first instance expressly “disclaim the resolution of factual disputes by reference to witness demeanour”. However, this does not deny that in many cases a trial judge’s observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings. (Citation inserted)
“Established facts”, “incontrovertible evidence” and “glaringly improbable evidence”
89. It is, of course, the case that particular expressions such as “findings based on evidence that is glaringly improbable” or findings based on “evidence opposed to established facts or incontrovertible evidence” do not per se wholly delineate the test to be applied: rather, they are illustrative of the sort of factual situation that may justify appellate interference; thus Deane and Dawson JJ noted in Devries v Australian National Railways Commission that the appellate duty cannot be explained “in any short exhaustive formula” and that the reference to “glaringly improbable” in the joint judgment in Brunskill v Sovereign Marine and General Insurance Co Ltd was by way of “example”.
90. Nevertheless, such expressions have the imprimatur of the High Court and serve to emphasise the exceptional nature of appellate interference in such circumstances. In fact there are two slightly different approaches, each the reverse side of the other.
91. The first approach refers to the fact that a trial Judge’s finding may be overturned by establishing that it is based on evidence that is “glaringly improbable”. Here, the emphasis is on the exceptionally fragile nature of the evidence that forms the basis of the finding and the degree of required weakness is illustrated by phrases such as “glaringly improbable”. In the present case it could not seriously be said that, standing by itelf, the evidence of McAlpine is “glaringly improbable”.
92. The second approach refers to an appellate reversal of “findings based on evidence that is opposed to established facts or incontrovertible evidence or contrary to compelling inferences”. Here the emphasis is on the exceptionally solid nature of clearly identified objective evidence with which the Judge’s finding is inconsistent. It is mainly this second approach that is adopted by the present appellant.
93. Such evidence must be quite inconsistent with the evidence of the witness(s) accepted by the trial Judge and have a greatly superior claim to reliability. Such was the position in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) with the clear trail of documentation and in Fox v Percy with the independent evidence of vehicle skid marks, as to which Gleeson CJ, Gummow and Kirby JJ there stated:
[37] In the end, it was not logic and the assessments of probable behaviour in the circumstances that persuaded the majority of the Court of Appeal. Such considerations might not alone have warranted disturbance of the primary judge’s conclusion. It was the objective fact of the skid marks which, to the close of the trial, remained unexplained, or insufficiently explained, by the appellant.
[38] … The skid marks showed objectively the direction of the respondent’s vehicle from the application of the brakes to the place of rest at the point of the collision with the appellant’s horse. Alike with Beazley JA, we regard the skid marks as an incontestable fact that rebuts the claim of negligence propounded by the appellant. Clearly, it was open to the Court of Appeal, conducting the rehearing, to reach that conclusion. Once it did so, that Court was bound to give effect to its opinion. [Citations omitted]
Of course, it is well recognised that there is inevitably a tension between “appellate obligations” and “appellate restraint”; and that first one, and then the other, may appear to be in the ascent at different times. Thus, in Fox v Percy, Gleeson CJ, Gummow and Kirby JJ stated: [2]
28. Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. [Citations omitted]
[2] (2003) 214 CLR 118, 128.
Indeed, there will be individual cases close to a “line” where opinions within that case may strongly differ as to whether appellate interference is appropriate. Thus, CSR Ltd v Della Maddalena[3] is a relatively recent decision of the High Court in which the approaches of Gleeson CJ and Kirby J on the one hand, and Callinan and Heydon JJ on the other hand, differed in just such a situation. However, in the more recent decision of the High Court in Robinson Helicopter Company v McDermott, it was stated in a unanimous joint judgment:[4]
43. The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing 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 judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them. [Emphasis added; Citations omitted]
[3] (2006) 80 ALJR 458.
[4] (2016) 90 ALJR 679 (French CJ, Bell, Keane, Nettle and Gordon JJ).
And in Lee v Lee the plurality in the High Court stated:[5]
55. 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. Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” 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. 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. … [Citations omitted]
[5] (2019) 266 CLR 129, 148-149 (Bell, Gageler, Nettle and Edelman JJ).
The tort of battery and the requirements of a valid arrest
As the Judge correctly noted,[6] the case for the defendant was that the capsicum spray was, in the circumstances, honestly and reasonably used in self-defence, because SC Carter and PC Grimshaw were in fear of immediate violence. The case for Mr Crossley was that the two applications of capsicum spray each constituted batteries and that no defence is proven.
[6] At [76].
But, self-defence aside, there was no dispute that, as the Judge observed,[7] “both capsicum sprays otherwise amount to the tort of battery, a species of trespass to the person.[8] Thus, in Johnson v Northern Territory, Blokland J stated:[9]
265. Although for the purposes of the criminal law “assault” includes the actual application of force as well as the threatened application of force, the actual application of force is not an element of the tort “assault”. …
266. … Where a threat of contact is carried out the incident is properly described as “assault and battery”.
267. The tort of battery is distinguished from assault. Battery is committed by “intentionally bringing about harmful or offensive contact with another person’s body.”[10] There is some support for negligent contact rather than intentional contact being sufficient to constitute battery,[11] however the plaintiff’s case was not pleaded on that basis.
[7] At [81].
[8] His Honour continued: “The common law has recognised over the centuries that the least intentional touching of another amounts to battery: Cole v Turner (1704) 6 Mod Rep 149; 87 ER 907, Stingel v Clark (2006) 226 CLR 442, [97], and the authorities referred to in footnote 111, and Battiato v Lagana [1992] 2 Qd R 234, 236, Carter v Walker (2010) 32 VR1, [15]. The common law equally recognises that battery is constituted by striking another with a missile or instrument: Pursell v Horn (1838) 8 Ad & El 602, 604 112 ER 966, 968, McHale v Watson (1964) 111 CLR 384, 388, Darby v DPP (2004) 61 NSWLR 558, [73]. Battery is fully constituted without requiring proof of damage: Wilson v Pringle [1987] QB 237, 252”.
[9] [2016] NTSC 49.
[10] Sappideen C and Vines P, Fleming’s The Law of Torts, 10th Edition Thomson Reuters, 2011 at 31.
[11] Halsbury’s Laws of Australia V26, [415] – [345]; C Goodhand and P O’Brien, Intentional Tort Litigation in Australia, at 5; Slaveski v Victoria (2010)VSC 441 at [241], per Kyrou J.
The requirements of a valid arrest
Any act by a police officer which has the effect of impinging upon the liberty of a particular person must be viewed with extreme seriousness. An act of arrest marks the limits of liberty and freedom. Thus, in Webster v McIntosh Brennan J (with whom Deane J and Kelly J concurred) stated:[12]
Liberty ends where the power of arrest begins. There is a legal immunity from arrest and from the threat of arrest unless and until the conditions governing the exercise of the arresting power are fulfilled. The extent of this immunity, no less than the extent of the power of arrest, is fixed by the laws prescribing these conditions; for immunity and the power to arrest are correlatives, and laws which define the power measure the immunity.
[12] (1980) 49 FLR 317, 322.
And in Donaldson v Broomby, Deane J stated:[13]
… Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable. …
[13] (1982) 60 FLR 124, 126.
While there are some specific powers to give mandatory directions,[14] police officers have no general power to give mandatory directions to a member of the public short of making an arrest. In Police v Dafov (Dafov), Vanstone J stated:[15]
[14] Examples may be found in the Road Traffic Act 1961.
[15] (2008) 102 SASR 8, 32.
84. The elements of a lawful arrest were described by Gilles P, The Law of Criminal Investigation (Law Book Co, 1982) p 144 in the following terms:
At common law, an arrest will (assuming that it is made for an object sanctioned by the law) be lawful and thus validly made, provided that there is a sufficient act of arrest, the arrester communicates to the arrestee that the latter is under compulsion, the arrester notifies the arrestee as to the reason for his arrest, and the arrester possesses the state of mind required of one acting pursuant to the given power of arrest.
In a much earlier article Glanville Williams [1954] Crim LR 6 put the position slightly differently:
Assuming the legal power to make an arrest, there are certain general requirements of a proper and effective arrest.
(1) The person arrested must be deprived of his liberty; in technical language this is called an imprisonment.
(2) The imprisonment must be intended as a step in a criminal process, and this intention must be made known by the officer to the person arrested.
(3) Subject to some exceptions, the reason for the arrest must be communicated to the person arrested.
And, as Vanstone J goes on to state in Dafov, while the law does not encourage the subject to resist the authority of one whom he knows to be an officer of the law, nevertheless “as a general rule, a person subject to an unlawful arrest is entitled to use reasonable force to free himself”.[16]
[16] (2008) 102 SASR 8, 33 [90]; White J agreeing at [95].
In similar vein, Kyrou J stated in Slaveski v Victoria:[17]
[17] [2010] VSC 441.
103. … Assuming there exists a statutory power of arrest and that power is not exceeded by the person effecting the arrest (‘the arrester’), a person (‘the arrestee’) will be lawfully arrested if:
(a) the arrestee was deprived of his or her liberty;
(b) the arrester informed the arrestee that he or she was under arrest; and
(c) the arrester informed the arrestee of the reason for the arrest.
…
106. While the arrestee must be deprived of his or her liberty in order to be lawfully arrested, there is no requirement that the arrestee be actually seized or subjected to physical force. There will be a sufficient deprivation of liberty if the arrestee submits to the arrester’s control after the arrester has indicated his or her intention to effect the arrest. In Alderson v Booth, Lord Parker CJ said:
There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying ‘I arrest you’ without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear ... that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant’s notice, and did bring to the defendant’s notice, that he was under compulsion and thereafter he submitted to that compulsion.
107. If the arrestee does not submit to the arrester’s control, the deprivation of the arrestee’s liberty must be formally established by the arrester touching his or her person.
Communication of arrest
108. The arrester must do all that a reasonable person would do in the circumstances to inform the arrestee that he or she is under arrest.
109. An arrest will not be lawful if the arrestee, in submitting to the arrester, understands that he or she is acting voluntarily. Any form of words used to communicate the fact of arrest must unequivocally bring home to the arrestee that he or she is acting under compulsion.
110. In R v Inwood, the English Court of Appeal held that whether it has been made sufficiently clear to the arrestee that he or she is acting under compulsion is a question of fact that depends upon all the circumstances of the case. The Court said:
No formula will suit every case and it may well be that different procedures might have to be followed with different persons depending on their age, ethnic origin, knowledge of English, intellectual qualities, physical or mental disabilities. There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man. [Citations omitted]
The rule in Christie v Leachinsky
One of the requirements of a valid arrest is that, subject to limited exceptions which do not apply here, the reason for the arrest must be communicated to the person arrested. This requirement is usually referred to as the rule in Christie v Leachinsky[18] and is the law in South Australia.[19] In Christie v Leachinsky, Viscount Simon summarised the principles that govern such communication in the following propositions:[20]
(1)If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.
(2)If the citizen is not so informed, but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.
(3)The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.
(4)The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is one of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that restraint should be imposed.
(5)The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away.
[18] [1947] AC 573.
[19] See authorities such as Hull v Nuske (1974) 8 SASR 587; R v Stafford (1976) 13 SASR 392; Warke v Daire (1983) 32 SASR 321; R v O’Neill (1988) 48 SASR 51; Hortin v Rowbottom (1993) 61 SASR 313. For a recent consideration by this Court, see R v Tipping (2019) 133 SASR 58.
[20] [1947] AC 573, 587-588.
In similar vein, Lord du Parcq stated:[21]
… The principles established by the authorities are agreeable to common sense, and follow from the governing rule of the common law that a man is entitled to his liberty, and may, if necessary, defend his own freedom by force. If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submitted to arrest, or blamed for resistance. The right to arrest and the duty to submit are correlative. …
[21] [1947] AC 573, 598.
The degree of force that may be lawfully used to effect an arrest
As to the degree of force that may be lawfully used to effect an arrest, in Johnson v Northern Territory, Blokland J stated:[22]
272. … Kyrou J stated in Slaveski v Victoria:
The person exercising the power of arrest is entitled to use such a degree of force as in the circumstances they reasonably believe to be necessary to effect their purpose, provided that the means adopted by them are such as a reasonable person placed as they were placed would not consider to be disproportionate “to the evil to be prevented.”
273. This last phrase may be taken to refer to circumstances such as escape, resist or other significant non-compliance with submission to the arrest or to the continuation of offending. As the right to liberty is sacrosanct, the use of force and whether it is reasonable must be assessed in the context of orthodox and strict principles governing the power of arrest.
274. Clearly arrest constitutes the deprivation of liberty of the person arrested. To protect personal liberty the law that permits and provides the circumstances in which a police officer may arrest or detain an individual is strictly construed. The approach that is taken to strictly construing s 123 of the Police Administration Act applies equally to the application of principles governing the circumstances in which the use of force will be considered reasonable. The relevant authorities also emphasise that the assessment of whether a police officer’s conduct is reasonable must be made in a manner that has regard to the many exigencies relevant to the circumstances in which an arresting officer’s decision is made. Those include the need for a quick decision, possibly in an emergency or other pressured environment. The assessment should not be made by reference to hindsight. … [Citations omitted]
[22] [2016] NTSC 49.
The amended Grounds of appeal
The Judge heard a lengthy trial over some 12 days. Nine witnesses were called for the plaintiff being Mr Crossley, Dr Nagi Guirguis, Ms Lesley Blight (the plaintiff’s grandmother), Ms Rene Lithgow (the plaintiff’s partner), Mr Olivio Varrichio, Dr Warwick Blakemore, Mr Aaron Reine, Dr Sarojana Hapuarachchi and Dr Hoa Phan. Nine witnesses were called for the defendant being Dr Michael Clarke, Ms Katia Gould (physiotherapist), SC Carter, SC Durkin, Sergeant Mann, PC Grimshaw, SC Lovell, Ms Jasmine George (paramedic) and Professor Jason White.
On 25 February 2020, the Judge delivered his verdict on liability, consisting of some 49 closely typed pages of analysis of the law and evidence. His Honour made extensive specific findings of fact and gave detailed reasons. In the Grounds of appeal to be referred to below, there are no assertions of error of law or wrong admission of evidence. Nor is it complained that there were insufficient reasons given. Rather, the complaints assert that his Honour erred in making some of his factual findings reasons and thereby came to the wrong conclusion as to liability.
The amended Grounds of appeal are as follows:
1.The learned trial judge erred in finding that there was no requisite situation of apprehended violence and no occasions for self-defence, justifying the use of capsicum spray on two occasions ([79], [85], [87], [88] and [89] of the liability judgment) in circumstances where his Honour:
1.1 placed undue weight on his interpretation of the CCTV footage, which was misplaced;
1.2 misapprehended evidence as supporting his interpretation of the CCTV footage, when it did not; and
1.3 overlooked the evidence of the police officers of their reasonably held perceptions arising from the respondent’s physical and verbal behaviour, which supported the opposite conclusion to that of the learned trial judge.
2.The learned trial judge erred in finding that the state of the evidence as to whether a reason for arrest was given was inconclusive ([95]-[101]) rendering the arrest unlawful, in circumstances where his Honour:
2.1 failed to have proper regard to the evidence of the police witnesses;
2.2 misapprehended the evidence of Senior Constable Carter concerning the warnings he gave to the respondent on the basis that his evidence was inconsistent with Carter’s subsequent written records, when it was not and; in the alternative
2.3 having rejected the evidence of Senior Constable Carter concerning the warnings he gave to the respondent, the learned trial judge was required, but failed, to consider whether the respondent was nonetheless aware that the arrest related to the earlier assault on Carter, for which he had received a specific warning by Probationary Constable Grimshaw.
3.The learned trial judge erred in finding that police used unreasonable force in affecting [sic effecting] the arrest of the respondent ([102]-[128]); that there was no basis for placing the respondent in handcuffs ([109]); and employing a figure four leg lock in order to apply the handcuffs was unnecessary and excessive and constituted a battery ([127]) in circumstances where his Honour:
3.1 placed undue weight on his interpretation of the CCTV footage in which vision of the respondent and the police officers was obscured, which was misplaced; and in doing so
3.2 overlooked the evidence of the police officers of the respondent’s conduct, which supported the opposite conclusion to that of the learned trial judge, namely that the respondent was forcefully resisting arrest and presented a danger to the arresting police officers.
The background circumstances up to the arrival of police
The facts leading up to the arrival of the police were not in dispute and may be stated thus. On the evening of Saturday, 9 March 2013, Mr Crossley (Crossley) was given a lift to the city where he and others were to celebrate a friend’s birthday. At about 4.00 am the following morning, Crossley and two male friends, Mr Reine and Mr Kelly (the Crossley party), were walking along Hindley Street east towards Rundle Mall, from whence they were to be given a lift home. Just to the west of the intersection of Hindley and Bank Streets, the Crossley party encountered a large commotion involving 20 to 30 Sudanese or African youths, fighting each other. They watched for a while and Mr Reine attempted to speak to one of them, but was insulted. Crossley’s party then resumed walking, but soon after heard foot-steps and, on looking back, saw that they were being followed by several of the youths who attempted to attack them.
Crossley gave evidence that one tried to punch Mr Kelly, and Crossley “chest bumped” him to prevent that. Mr Reine gave substantially similar evidence. At this time, a number of police officers arrived on the scene and noticed Crossley interacting with one or more of the youths. Crossley was very noticeable; he is a very large man[23] and was speaking loudly. The police approached him and moved him away from the youths.
[23] Mr Crossley is 6’2”-6’3” tall and weighed 90 kg at the time, T121.29-.35.
Although the Judge decided the ultimate issues against the police, his Honour displayed a balanced approach throughout his judgment. His Honour took a benign view of the initial actions of the police and found thus:
59. It is clear enough that the police came upon the scene when the encounter with the African youths was all but over. No doubt their attention was drawn to Mr Crossley because of his size and because of a somewhat animated verbal exchange with a number of those youths. SC Carter said as much during the course of his evidence in that ‘he stood out as the one person that seemed agitated and aggressive’. Whatever the precise situation, it is apparent that the police either assumed Mr Crossley was the focal point of the imbroglio, or more likely, instinctively considered the best way to ‘defuse’ the situation was to remove him from the scene. This conclusion stems from the very nature of the insitu circumstances at that time and place, bearing in mind the difficulties of policing the Hindley Street area, deposed to by the police witnesses.
60. The police witnesses involved that night spoke in various ways of the torrid policing conditions prevailing in the Hindley Street area over the weekends. SC Carter commonly dealt with people ‘behaving in a disorderly manner, fighting’ during weekends around the Hindley Street area and of arresting people for ‘street-type offences’ on ‘many occasions’. He described the busiest period for policing purposes was from 10.00 pm on Fridays and Saturdays, through to the ‘early hours’ of the following morning. The evidence of Sergeant Durkin was to a similar effect, adding that incidents such as those involving Mr Crossley were in his experience ‘very common’. The evidence of PC Grimshaw was equally consistent about this. Because of the critical situation in the area, SC Carter spoke of dealing with such situations before taking more affirmative action, in this way:
Q Do you have a policy that you adopt, wherever possible, when dealing with people such as that.
A. Myself, obviously each individual circumstance we have to deal with how we see it but I try to calm the situation down. From the UK we were always taught, it was kind of like instilled to us, to calm people down rather than have to use any form of force.
and
Q. On occasions when you’ve not effected arrests, have you managed to diffuse situations.
A. Yes.
61. This is precisely what occurred when the police first confronted the melee in Hindley Street. Having failed to quell Mr Crossley and his companions’ attempts to explain the circumstances, SC Carter determined in an instant that the most effective course in order to ‘defuse’ the situation was to remove him from the scene. This intention clearly emerges from the evidence of both SC Carter just quoted and that of PC Grimshaw:
… so we could move Mr Crossley away from that area, have a conversation with him, defuse the situation and hopefully all parties could go their separate ways.
62. It flows from the above findings, that the probabilities are as follows so far as the events involving police in Hindley Street and the Western side of Bank Street are concerned:
.SD Carter and PC Grimshaw confronted a scene which they considered might quickly grow out of hand and potentially result in fighting or even violence;
.They considered or assumed without much time for reflection, that Mr Crossley was at the centre of the action because he physically stood out and because he was verbally animated;
.They considered the most effective solution to defuse the situation was to remove him immediately from the scene;
.Mr Crossley (and Mr Reine) mistakenly took this action as a prelude to arrest and began protesting about it;
. Police took this as uncooperative behaviour and resistance on their part.
63. It is accepted that the police were at these points in time faced with a difficult and potentially challenging situation, which had the potential to quickly erupt beyond their control. It was therefore understandable that rather than attempt to resolve the differing accounts of the fracas, they would attempt to quell the situation. Situations such as this, and the following events for that matter, are not to be judged in hindsight ‘in the comparative calm and leisurely atmosphere of the courtroom …’: McIntosh v Webster.[24]
64. Thinking the removal of Mr Crossley was the course most likely to achieve those ends, SC Carter and PC Grimshaw instinctively resolved to do just that. Perceiving some injustice, Mr Crossley not unnaturally reacted in protest, which the police took to be uncooperativeness. All the same, there was nothing illegal or unreasonable in the way the police handled the situation up to the point in time the CCTV vision commences on the Western side of Bank Street near its junction with Hindley Street, at precisely 4:45:25:61.
65. Whatever else might be said about the circumstances, it is undoubtedly the case that the police succeeded in separating Mr Crossley and his friends from the African youths and thus successfully ‘defusing’ the situation. All the evidence points to the fact that no African youths followed or were to be seen in the subsequent events taking place in Bank Street. [Citations omitted]
[24] (1980) 43 FLR 112, 123.
As was indicated to this Court on the hearing of the appeal, the appellant has no issue with the above paragraphs from his Honour’s judgment.
Ground 1 of appeal – The use of capsicum spray
Ground 1 of appeal is as follows:
1.The learned trial judge erred in finding that there was no requisite situation of apprehended violence and no occasions for self-defence, justifying the use of capsicum spray on two occasions ([79], [85], [87], [88] and [89] of the liability judgment) in circumstances where his Honour:
1.1 placed undue weight on his interpretation of the CCTV footage, which was misplaced;
1.2 misapprehended evidence as supporting his interpretation of the CCTV footage, when it did not; and
1.3 overlooked the evidence of the police officers of their reasonably held perceptions arising from the respondent’s physical and verbal behaviour, which supported the opposite conclusion to that of the learned trial judge.
Particular 1.1: The Judge’s use of the CCTV recording
Of course, one must bear in mind that there are dangers with both photographs and video material in some situations. Thus, in the decision of the New South Wales Court of Appeal in Goode v Angland, it was said:[25]
[25] (2017) 96 NSWLR 503, 522-523 (Beazley P. See also Leeming J at [213]-[224]).
92. In Blacktown City Council at [169], Tobias JA, with whom Giles JA agreed, considered, by reference to Schmidt , that photographs should not be used to make findings of fact that were not supported by the evidence. To use photographs in that way, according to his Honour, would be no more than conjectural. His Honour accepted that photographs could have probative value of themselves, but that care was necessary that they not be the sole source from which primary facts were inferred if the primary facts were not apparent on the face of the photograph.
93. A matter that frequently arises in the use of photographs is that they can be deceptive, particularly in relation to perspective and distance. This was the subject of observation in Angel v Hawkesbury City Council (2008) Aust Torts Reports 81‐955; [2008] NSWCA 130 where the court (Beazley and To bias JJA, Spigelman CJ, Giles and Campbell JJA agreeing) said, at [69]–[72], that photographic evidence could not trump the direct evidence of witnesses that compelled acceptance.
94. I had cause to review the use of photographic evidence again in Yarrabee Coal Company Pty Ltd v Lujans (2009) Aust Torts Reports 82‐024; [2009] NSWCA 85 at [20]–[27] and concluded, at [28]:
“[28] … much will depend upon the photograph in question, the circumstances in which it was taken and what the evidence, if any, is in relation to the photograph. Thus, in Angel v Hawkesbury City Council [2008] NSWCA 130 the Court rejected that the photographs should have trumped the eyewitness evidence which, the Court held, was compelling: see at [69]–[70].”
95. In Townsend v O’Donnell (2016) 78 MVR 283; [2016] NSWCA 288, there were photographs in evidence, taken after a motor accident, which depicted the place where the accident occurred and from which it was sought to estimate how long the respondent had had to take evasive action. Sackville AJA, with whom I and McColl JA agreed, said, at [52]:
“[52] … great care must be taken in interpreting photographic evidence. This is particularly the case where there is no evidence as to the precise position of the camera when the photographs were taken and the photographs themselves are indistinct.” (Footnotes omitted)
See also Warren v Gittoes [2009] NSWCA 24 at [54]–[55].
96. In Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72, which concerned a motor accident, the appellant contended that the primary judge had failed to give adequate weight to video footage taken from a camera in a vehicle travelling behind the vehicles involved in the accident. Sackville AJA, Ward JA and Garling J agreeing, said, at [42]:
“[42] The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved.” (Footnote omitted)
See also, again in the context of video evidence, Asim v Penrose [2010] NSWCA 366 at [57]; QBE v Orcher [2013] NSWCA 478.
However, the following matters may be noted. First, many of the above criticisms arose in the context of photographs or videotape the quality of which was defective or poor. In the present case, while there was no sound track, the quality of the visual recording was very high. It was in colour, corresponded to movements in real time, and was clear and distinct. Its quality was much better than the more inferior forms of recording with which the Courts often have to grapple. It is only towards the end of the incident, when Crossley is prone with police officers on top of him, that it becomes harder to make out some detail due to the fact that a large number of curious onlookers have gathered, somewhat blocking the view for a time.
Secondly, the CCTV footage was tendered by consent. All of the police witnesses had refreshed their memory by viewing the CCTV footage prior to the trial and gave evidence by reference to the CCTV footage.
Thirdly, the Judge appropriately referred to the decision of Cuthbertson v New South Wales,[26] in which Montgomery DCJ set out a number of principles relating to the use of CCTV footage (including by reference to several decisions of the New South Wales Court of Appeal), which may be summarised as follows:
[26] [2017] NSWDC 367, [39]-[52] (reversed on other grounds as to provocation and costs: New South Wales v Cuthbertson (2018) 99 NSWLR 120).
-A court can treat “photographs as evidence and not merely as material to understand the evidence”.
-It is open to the Court to arrive at observations of movement and action of the police officers from the CCTV footage.
-The CCTV evidence shows events without the subjective assessment and exercise of judgment and thought of the participants of the events, at the time depicted.
-The CCTV footage contains evidence which the Court is free to consider in determination of the factual contest.
-CCTV footage is of particular value in three ways:
- (a) first, the film permits close examination of important moments of physical confrontation, much like replay, including at slow motion, of a sporting event;
- (b) second, the film provides a visual record of behaviour of participants and therefore visual evidence of events were known to the police officers at times of their respective exercises of power including arrest, detention and use of force; and
- (c) third, the visual record displays the physical environment to be taken into account when determining between conflicting accounts of what was said.
In the present case, I do not accept that the Judge placed “undue” or “misplaced” weight on the CCTV footage and nor did he use it in a way that constituted “interpretation” or “misinterpretation” as distinct from observation of the images on the CCTV footage.
Particular 1.2: The Judge misapprehended evidence as supporting his interpretation of the CCTV footage, when it did not
The defendant here makes a specific complaint that the Judge misapprehended the evidence relating to the first capsicum spray. The defendant refers to paragraph [74] where the Judge stated:
74. However from here, the events take a somewhat different course. Mr Crossley unwisely pushes SC Carter’s left palm and arm away from his abdomen and then raises a right arm with pointed fingers to head height, rather suggesting he is no longer prepared to back away. By this point in time he might have better dealt with the situation by adopting a more submissive response. He admitted pushing the hand down for the second time because ‘(H)e was being a bit rough with me’. By 4:46:09:65, SC Carter remains essentially in the same position with the capsicum spray, as Mr Crossley’s right arm rises to head height, with the left kept horizontal to the body. This movement is once again more consistent with a pleading stance than it is with a threatening one. PC Grimshaw equally accepted that was the case under cross-examination:
Q. So you’ve watched this footage.
A. Yes.
Q.Do you accept that up until this point that you can see on the screen now, Mr Crossley, to the extent you’ve seen him in this footage, hasn’t been acting aggressively.
A. No.
Q.When do you say he was acting aggressively in the footage that you have just watched.
A. He was acting aggressively the entire time we were with him.
Q.So you say that he has been acting aggressively while you have been watching this footage.
A. Yes.
Q. Do you want to watch it again and point to any specific incident.
A. It was more the words he was using.
Q. So it wasn’t his physical demeanour.
A. No. [Citations omitted; Emphasis added]
In the passage in paragraph [74] leading up to the excerpt from the
cross-examination of Grimshaw (the Grimshaw excerpt), the Judge referred to the time period up to about 4:46:09:65 (bearing in mind that the parties agreed the first capsicum spray occurred at 4:46:10:29). However, the defendant correctly submits that the Grimshaw excerpt was in fact introduced by reference to the video being paused during the cross-examination at 4:46:01, with the question “So you’ve watched this footage?” inquiring as to its content up to that time of 4:46:01, which is about nine seconds prior to the time of “about 4:46:09:65”, which was addressed by the Judge at paragraph [74].
I accept that, to this extent, there is an error by the Judge.
However, the defendant then submits in writing:
34. The use of that unsynchronised evidence enabled his Honour to conclude at paragraphs [79] and [80], that there was no requisite situation of apprehended violence and therefore no occasion of self-defence and that Carter accepted that the respondent was not physically violent “apart from his gesture motion forward at the very start of it” and that Grimshaw admitted that “it was more the words he was using”.
35. At paragraph [83] the learned Judge concluded that Carter and Grimshaw had to concede that in the 30 seconds immediately prior to the first application of capsicum spray at 4:46:10.29, Mr Crossley cannot be seen in the CCTV footage displaying any physical violence “apart from his gesture motion forward at the start of it”.
36. In fact, the evidence of Carter related to an earlier period, from the point when the respondent put his hands up to his ears at 4:45.59.
37. To the limited extent that the learned Judge used the evidence of the police witnesses, he did so in a way which erroneously accorded with his impression of the CCTV vision.
In my view, this is to take the matter too far. It was not, as suggested by the defendant, “[t]he use of that unsynchronised evidence” which enabled his Honour to conclude at paragraphs [79] and [80], that there was no requisite situation of apprehended violence. Quite to the contrary, it is obvious from the whole of the judgment that his Honour has paid the closest attention to the whole of the video footage, which he had obviously scrutinised a number of times, and which obviously included the nine seconds between 4:46:01 and the first spray at about 4:46:10:29. It was the whole of that video, taken in conjunction with the rest of the evidence in the case, that led his Honour to come to the conclusions he expressed.
Upon carefully looking at those nine seconds of the video, I do not consider that there is anything therein that precludes or calls into question his Honour’s conclusions that the defence of self-defence was not made out by the defendant. Of importance, it is to be noted that within the paragraphs of his judgment dealing with the immediate lead up to the first spray, his Honour specifically refers to the nine second period in the emphasised passage in paragraph [85] thus:
84. … essentially the defensive body language gleaned from the entire CCTV vision, placing his hands over his ears, together with gesticulations towards the Hindley Street area and a largely defensive posture, combine to bring the probabilities to the point that it is more likely than not that he was protesting in the manner deposed to by him and Mr Reine. On the other hand, by the time Mr Crossley began to stand his ground, rather than retreat as was the case until then, there is a suggested measure of frustration, even agitation on his part. Even so the CCTV footage does not support the conclusion that the police were subjected to the kind of ‘barrage of shouting’ as claimed by them.
85. It is accepted by Mr Crossley’s counsel that immediately before he was first sprayed, Mr Crossley pushed SC Carter’s arm away from his own chest and raised his right arm, but this was still nevertheless in protest rather than aggression. Viewed objectively, the situation was not one of an immediate threat of violence or of imminent danger to the police. It was one of impasse. The police had already achieved their objective of removing Mr Crossley from the problem area, they were not dealing with his protestations and they continued to pursue him having achieved their purpose of defusing the situation, even though he walked away from it to the Eastern side of Bank Street.
86. The evidence that an acute situation arose requiring immediate defensive action for their own safety, is grounded in large part in the claim that in raising his arms and clenching his fists, Mr Crossley presented an imminent threat of physical harm and therefore an immediate danger to the police at the East side of Bank Street. The source of that claim begins with the evidence of SC Carter that Mr Crossley ‘stepped toward me in an aggressive manner with his fist clenched, believing I was to be assaulted’. He accepted under cross-examination, when the CCTV footage was shown to him that at this point ‘Mr Crossley is pointing as opposed to having a fist … seems to be just gesturing’. Sergeant Mann likewise claimed that Mr Crossley ‘was in a defensive stance … (F)ists clenched down by his side. In re-examination he added that he ‘was in an aggressive sort of pose, I would say, with his fists clenched’. The CCTV footage supports the evidence that Mr Crossley stepped forward a little with a raised hand, but does not support the evidence that he did so with a clenched fist at all. It might be noted at this point in the analysis that Mr Crossley denied clenching his fists in the exchange with SC Carter.
87. The cumulative weight of all this evidence, including the CCTV footage and the inferences fairly arising therefrom, leads to the conclusion that no occasion for employing capsicum spray on the basis of apprehended violence was on foot. It was unreasonable in the circumstances to think otherwise. The evidence that Mr Crossley held a clenched fist at this time is rejected as it is against the combined weight of the evidence. [Citations omitted]
I conclude that the above conclusions were well open to the Judge in relation to the first spray and that it is inevitable that his Honour would have come to the same conclusion if he had not made reference to the Grimshaw excerpt.
The second capsicum spray
The defendant submits that the capsicum spray had little effect on Crossley and refers to police evidence that he said words to the effect “I put spicier sauce on my steak” or “I love fucking pepper spray”. However, many a word is spoken in “black” or “gallows” humour,[27] and a close examination of the video shows that the sprays had real effect on Crossley. Once again, I agree with the Judge’s observations in the following paragraphs:
[27] On one well-known occasion, the Black Knight characterised the loss of the whole of his left arm as “‘Tis but a scratch”.
88. The same considerations apply equally to the second spray. Even assuming Mr Crossley uttered words to the effect ‘I put spicier sauce on my steak’ or ‘I love fucking pepper spray’, those words provided no reasonable basis for thinking the first spray was ineffective. Too little time elapsed between the two to make that assessment and in any event, the first spray appears to have obviously affected SC Durkin and Mr Kelly, so there was no objective basis to assume it did not affect Mr Crossley. Upon careful review of the CCTV footage between the first and second sprays at 4:46:10.29 and 4:46:12.97, that is in the time-span of just over two and a half seconds, apart from leaving no time to say as much, it is not possible to detect Mr Crossley saying anything at all between the two sprays. To the contrary, he turned to face SC Carter and was immediately sprayed a second time. Furthermore, the same vision suggests SC Carter was determined to spray for a second time irrespective of the circumstances, as he is seen in this time span at the ready to fire again, the only thing holding him back was the proximity of other police officers who might be too close to the firing line.
89. The evidence discloses instant disabling consequences of capsicum spray, such as inhibited vision, shortness of breath and pain as ‘very debilitating … and may induce … a sense of panic’. SC Carter himself explained his understanding of the effects:
Q. Dealing with capsicum spray, are you aware of what the effects of capsicum spray.
A. It is - to a certain degree, yes, we have experienced it ourselves.
Q. Can you describe those effects.
A. Yes, it makes your eyes stream, a little bit difficult to see. In some people it can affect their breathing slightly as well.
Q. Is it painful.
A. It is, yes. Some people it is more painful for than others. Some people aren’t affected by it sometimes.
This evidence further suggests SC Carter’s excuse for the second spray is contrary to the objective facts and does not therefore ring true as a matter of common sense.
90. The fact of the matter remains that no situation of imminent danger emerged on an objective appraisal of the facts. Irrespective of exactly what Mr Crossley said to the police, his physical posture was by and large a defensive one. SC Carter determined early on to prepare for the use of capsicum spray by removing it from its holster and secreting it behind his back at a time when Mr Crossley was retreating across Bank Street. There was plenty of time available to reflect on his decision making to employ in between time before spraying the first time. Whilst the time between the two sprays was relatively short, it was quite insufficient to allow him to rationally form the view that it was ineffective the first time around. The known debilitating effects in any event count against that view. The fact that SC Carter only resorted to the use of capsicum spray four times in 18 years of police service, testifies to just how sparingly it ought be used. It is for all these reasons that the conclusion was reached that two batterys are proven on the Briginshaw onus. [Citations omitted]
I conclude that there was a minor blemish in the Judge’s reason concerning the first spray but, as discussed above, this clearly had no real effect on his Honour’s reasoning or decision given that his judgment makes plain that he had regard to the whole of the video up to the first spray (and thereafter to the second spray as to which his Honour’s conclusions were also well open).
Particular 1.3: The Judge overlooked the evidence of the police officers of their reasonably held perceptions arising from the respondent’s physical and verbal behaviour
At particulars 1.3, 2.1 and 3.2, and during submissions, the defendant complains that the trial Judge “overlooked”; or failed to have proper regard to; or did not make express factual findings concerning; or “disregarded”: the police officers’ evidence or did not expressly reject it.
However, the Judge made clear in very extensive reasons that, in a number of critical areas, he accepted the evidence of the Crossley party and/or found that what was to be seen on the CCTV supported the case for the plaintiff. At a general level, one must pay heed to judicial observations such as that by Gageler J in Minister for Immigration and Border Protection v SZVFW:[28] “[t]he appellate court needs to be conscious that ‘[n]o judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another’”.
[28] (2018) 264 CLR 541, 557 [33] citing Fox v Percy (2003) 214 CLR 118, 132 [41] (footnote omitted).
Further, on a more specific level, and particularly having regard to the facts of this case, it is well accepted that often a Judge will deliberately abstain from directly branding witnesses as liars if it is not absolutely necessary to do so. And so here, the fact that the Judge concluded that he accepted a version of fact that is inconsistent with certain evidence given by certain police officers without positively uttering the words “I reject the evidence of police officer X”, does not mean that his Honour has “misapprehended” or “overlooked” or “disregarded” that police officers’ evidence. As was stated by the plurality in Smith v NSW Bar Association:[29]
… There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied.[30] In some cases, a rejection of evidence may lead to a finding that that person lied on another occasion. Thus, in the present case, a rejection of the appellant’s evidence in the Court of Appeal led to a finding that he lied in the Penrith Local Court on the morning of 11 November 1986. … But, as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.
And Deane J said:[31]
There are many circumstances in which a trial judge – and the Court of Appeal in the present case was effectively sitting as a court of first instance – is required to consider whether a party or a witness has been deliberately untruthful in the course of giving evidence before it. An obvious example of such a case is where there is a direct conflict of evidence and it is apparent that there is no real possibility of honest mistake. Unless it be truly necessary for the purpose of disposing of the particular case, however, a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made. Ordinarily, a party or other witness will not be concerned or entitled to set out to establish that, if his or her oral evidence is ultimately found to be mistaken, the mistake was an honest one. As a consequence, material which serves only to establish that a party or other witness subjectively believes that his or her evidence is correct is likely to be inadmissible in the proceedings in which the evidence is given. And there is good reason for that. The length, cost and hazards of litigation would be intolerably increased if each party or other witness was required not only to deal with the issues before the particular court but also to anticipate the ultimate rejection of his or her evidence and seek to establish that, notwithstanding that it was mistaken, it was honestly given. [Emphasis added]
[29] (1992) 176 CLR 256, 268 (Brennan, Dawson, Toohey and Gaudron JJ).
[30] See, in relation to disciplinary proceedings against a solicitor, O’Reilly v Law Society of NSW (1988) 24 NSWLR 204, at pp 208, 230.
[31] Smith v NSW Bar Association (1992) 176 CLR 256, 271-272.
I reject Ground 1 of appeal.
Ground 2 of appeal – Failure to inform an arrestee the reason for the arrest
It is not necessary to deal with Ground 2 of appeal, which concerns the requirement of informing Crossley of the reason for his arrest. In something of an understatement, the Judge observed (correctly) that: “There were some differences, if not confusion, in the evidence as to what he was told he was under arrest for”.[32] Indeed, his Honour found: “In light of the state of the evidence, it is impossible to determine one way or another what reason Mr Crossley was given for his arrest in Bank Street, if any”.[33]
[32] At [95].
[33] At [97].
As referred to above, a consequence of a failure to inform an arrestee of the basis of his arrest may well render it unlawful;[34] and since it was for the defendant to prove that the arrestee was properly informed of the basis of his arrest, the consequence of his Honour’s inability to make a definitive finding would appear to be that the defendant was unable to discharge the onus of proving that the arrest was lawful.
[34] See generally Christie v Leachinsky [1947] AC 573 and the recent decision of this Court in R v Tipping (2019) 133 SASR 58.
However, it is unnecessary to consider that matter further, since I conclude that in any event, the police actions in spraying Crossley with pepper spray, holding him to the ground with police officers on top of him, performing a manoeuvre called a ‘figure four leg lock’ and then handcuffing him were not justified by the circumstances. They were unlawful quite irrespective of whether or not he had been properly informed as to the reason for his arrest.
Ground 3 of appeal - Handcuffs and the ‘figure four leg lock’ manoeuvre
Ground 3 of appeal is as follows:
3.The learned trial judge erred in finding that police used unreasonable force in affecting [sic effecting] the arrest of the respondent ([102]-[128]); that there was no basis for placing the respondent in handcuffs ([109]); and employing a figure four leg lock in order to apply the handcuffs was unnecessary and excessive and constituted a battery ([127]) in circumstances where his Honour:
3.1 placed undue weight on his interpretation of the CCTV footage in which vision of the respondent and the police officers was obscured, which was misplaced; and in doing so
3.2 overlooked the evidence of the police officers of the respondent’s conduct, which supported the opposite conclusion to that of the learned trial judge, namely that the respondent was forcefully resisting arrest and presented a danger to the arresting police officers.
It is axiomatic that even if the plaintiff were lawfully arrested, the defendant bore the onus to establish that the police used only “such a degree of force as in the circumstances they reasonably believe to be necessary to effect their purpose, provided that the means adopted by them are such as a reasonable person, placed as they were placed, would not consider to be disproportionate ‘to the evil to be prevented’”. [35]
[35] Slaveski v Victoria [2010] VSC 441, [127] (Kyrou J) citing R v Turner [1962] VR 30, 36.
The use of handcuffs
It seems to be a not uncommon misconception amongst SAPOL officers that to handcuff on the occasion of an arrest is the rule rather than the exception.
One might, of course, glean that view from the countless examples of video material from the USA depicting the most placid of white collar suspects being recorded by television cameras (that just happen to be there) as they are led off in handcuffs without the slightest indication that they might assault, or attempt to escape from, the throng of accompanying police officers.
In Australia, we have not yet got quite that far. We have not yet forgotten the wise and resounding words of Dr Bray CJ in R v Stafford[36] when referring to the extreme behaviour of the police in that case: “In my opinion the actions of the police on this occasion constituted an outrageous and unwarrantable exercise of arbitrary power. There was no reason to handcuff the appellant. There was no suggestion that he was threatening violence or attempting to escape”.[37]
[36] (1976) 13 SASR 392.
[37] R v Stafford (1976) 13 SASR 392, 401.
To be clear, any citizen who is handcuffed without adequate reason has an action for damages against the police officer(s) responsible.[38] Indeed, if a police officer reasonably suspects a person of having committed an arrestable offence, a number of stages of consideration by that police officer should follow.
[38] Battery is fully constituted without requiring proof of damage: Wilson v Pringle [1987] QB 237, 252.
First, the officer must positively consider whether an arrest is warranted at all. Depending upon a number of considerations (including the confidence with which the personal particulars of the suspect can be ascertained), it will often be the case that an arrest, rather than a report with a summons to attend Court to follow, cannot be justified.
Secondly, if an arrest must be made, the officer must positively consider in each case whether the circumstances actually require the use of handcuffs. A mere habit or preference of the officer to use hand cuffs when arresting is certainly not sufficient justification. And nor is some internal SAPOL custom or directive, oral or written. SAPOL can in no way change the laws of the land by the issuing of an internal “order”, “directive” or any other communication referred to by whatever impressive name.
In the present case, the Judge correctly stated:
104. It is well settled principle that police officers are not entitled to use handcuffs merely to effect an arrest: R v Stafford. As observed long ago in Wright v Court:[39]
[39] 4 B&C 576, (1825) 107 ER 1182.
The defendants have also justified the handcuffing the plaintiff in order to prevent his escape; but they have not averred that it was necessary for that purpose, or that he had attempted to escape, or that there was any danger of his escaping; and such a degree of violence and restraint upon the person cannot be justified even by a constable, unless he makes it appear that there are good special reasons for his resorting to it.
In another Nominate report of the same case, the following appears:[40]
[40] (1825) 2 CP 234, 235, 172 ER 105, 106.
… persons may always avoid the declarations of the police … by taking care not to be concerned in the doing of things which they cannot afterwards justify.
105. Subsequently in Leigh v Cole, Williams J is reported as summing up in a case of unlawful imprisonment:[41]
The case was one which required careful and anxious consideration on the part of the jury. On one hand, it is clear that the police ought to be fully protected in the discharge of an onerous, arduous, and difficult duty – a duty necessary for the comfort and security of the community. On the other hand, it is equally incumbent on every one engaged in the administration of justice, to take care that the powers necessarily entrusted to the police are not made an instrument of oppression or of tyranny towards even the meanest, most depraved, and basest subjects of the realm.
The other points involve questions of law of great importance. First with respect to handcuffing, the law undoubtedly is, that police officers are not only justified, but they are bound to take all reasonably requisite measures for preventing the escape of those persons they have in custody for the purpose of taking them before the magistrates; but what those reasonable measures are must depend entirely upon circumstances, upon the temper and conduct of the person in custody, on the nature of the charge, and a variety of other circumstances which must present themselves to the mind of any one. As to supposing that there is any general rule that every one conveyed from the police station to the magistrates’ court is to be handcuffed, seems to me to be an unjustifiable view of the law, and one on which the police officers are mistaken. In many instances a man may be conveyed before the magistrates without handcuffing him, and taking him thus publicly through the streets. On the other hand, it is necessary to take proper precautions in conveying a person in custody to be dealt with by the magistrates; and you must say whether, looking at all the circumstances of the case, the defendant used unreasonable precautions in this case, or used unnecessary measures to secure the safe custody of the plaintiff.
106. These decisions were applied by Lockhart J in Kumar v Minister for Immigration, Local Government & Ethnic Affairs,[42] to conclude the power to handcuff an arrested person was only available ‘where the handcuffing is justified in order to prevent the person from escaping or endangering the safety or property of persons.’ They were likewise applied by Kyrou J in Slaveski v State of Victoria,[43] a decision applied in turn by Millsteed DCJ in Holder v State of South Australia.[44] The decision in Kumar v Minister for Immigration, Local Government & Ethnic Affairs,[45] was quoted with approval by Charles JA in Perkins v County Court of Victoria:[46]
… I require no persuasion that there is no general rule that persons arrested and being conveyed to or from a place of detention to a court must be handcuffed. An arresting officer is entitled to take proper precautions when conveying a person in custody, and all the circumstances must be considered to determine whether there are reasonable grounds for the arresting officer to handcuff the prisoner. But the right to handcuff must be found in some additional circumstance, such as the necessity to prevent the prisoner’s escaping; or committing some further offence; or endangering the safety of persons or property. … If the police officers arresting this appellant had no justification for handcuffing their prisoner, it would in my opinion follow that in attempting to do so, they were not acting in the course of their duty, and the appellant was not guilty of the offence of resisting the police in the course of their duty.
107. A similar view was taken by a single judge of the Nova Scotia Supreme Court and by six judges of the New Brunswick Supreme Court in Fraser v Soy,[47] and in Mcallister v Johnson,[48] respectively. No doubt the use of handcuffs is enough of itself to signify the intention to arrest: Nicholl v Darley,[49] Greenwood v Ryan.[50]
[41] (1853) 6 Cox CC 329, 330-332.
[42] (1991) 28 FCR 128, 131-134.
[43] [2010] VSC 441, [131]-[133].
[44] [2018] SADC 83 [206], upheld in State of South Australia v Holder [2019] SASCFC 135.
[45] (1991) 28 FCR 128.
[46] (2000) 2 VR 246, [44]-[45].
[47] (1918) 44 DLR 437, 441-442.
[48] (1910) 40 NBR 73.
[49] (1828) 2 Y & J 399, 148 ER 974.
[50] (1846) 1 Legge 275, 278.
I entirely agree. And I note that the defendant accepted in its written submissions at paragraph [62] that the principles concerning the permissible use of handcuffs were correctly summarised by the Judge.
Of course, the defendant contends that the particular circumstances here did positively warrant the application of handcuffs. However, once again, I agree with the Judge’s assessment of the situation. His Honour said:
102. … For reasons about to be explained, the police used unreasonable force in completing the arrest in any event. During the course of taking Mr Crossley into their custody, the police already had him on his knees. Within moments SC Carter and PC Grimshaw succeed in prising his hands from the street sign. Between 4:46:31.20 and 4:46:31.44 Sergeant Mann assists SC Carter to take hold of both arms, Carter the right arm and Mann the left. This was at a time when his vision and breathing were very likely impaired as a consequence of the two capsicum sprays. None of the police involved claim he was aggressive, or attempted to flee and the CCTV footage does not support the conclusion that he was.
103. The ostensible reason for restraining Mr Crossley was to facilitate the application of handcuffs, in the interests of police safety, according to PC Grimshaw. Contrary to the primary conclusions made above, even assuming the police held a lawful basis to arrest Mr Crossley, they remained constrained by the necessity to use force only to such a degree as in the circumstances the police reasonably believed to be necessary, and by the use of means a reasonable person would not consider to be inappropriate: R v Turner. Of course, the conduct of the police in this context once again must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight: McIntosh v Webster, Pringle v Everingham.
…
108. The situation then was this at the point of arrest and in the immediate period leading up to that, Mr Crossley was on his knees and effectively disabled by the two capsicum sprays. He was successfully rolled over onto his stomach by three police officers. He was not physically aggressive and he was not attempting to flee. His companions were not interfering and although people were beginning to mill about, none were in the immediate vicinity or at risk as other police had successfully deployed crowd control measures. By 4:46:34.40, Sergeant Mann and SC Carter were in the process of placing him face down for handcuffing as Mr Crossley instinctively raised his right arm to steady himself, before PC Grimshaw steps closer to assist. It was then that the three officers attempt to handcuff him behind his back, while several paces away SC Durkin appears to be in conversation with Mr Reine. By 4:46:55.00 other police officers arrive at the scene including SC Lovell, whilst Mr Crossley remains substantially face down on the Eastern pavement. SC Lovell immediately proceeds to encourage Mr Kelly and another person to move back from the immediate area as SC Durkin continues to speak with Mr Reine.
109. There was simply no basis in these circumstances, reasonable or otherwise, for placing Mr Crossley in handcuffs. As noted, SC Carter had control of his right arm and Sergeant Mann of his left, with the assistance of PC Grimshaw. Soon after the CCTV footage suggests SC Carter had his knees on Mr Crossley’s back, whilst PC Grimshaw held him about the head. At all events, the police evidence was to the effect that Mr Crossley was in no position to ‘get up’ and ‘walk or run away’. They did succeed in handcuffing Mr Crossley by the time SC Lovell entered the arena. Even though it may have taken up to approximately 40 seconds all up to complete the handcuffing exercise, this was not that long in the scheme of things, and once SC Lovell enters the fray it appears to take a few seconds at most to complete the handcuffing exercise. There is nothing to be seen in the CCTV footage to support the claim that Mr Crossley was ‘kicking and thrashing’ about or ‘struggling back and forth’ for that matter.
110. The only reasonable inference following from the above evidence, is that seeing the removal of Mr Crossley from the scene as the most expeditious way of defusing the situation, the police proceeded to have him leave the area, irrespective of his protestations over what took place in Hindley Street. They succeeded in achieving that end, but for some unconvincing reason pursued him across Bank Street where his protestations resumed. Presuming that he was not intending to go any further, they determined to arrest him. At most, Mr Crossley arguably might have hindered them in a relatively minor way, but that was about as far as it went. It does not appear that SC Carter was particularly concerned over the minor pushes to his hand or arms on either the Western or Eastern sides of Bank Street. What the precise particulars of disorderly behaviour were is not readily apparent, casting further doubt on whether any reason was given for arresting him.
111. Indeed, on the basis of the above primary findings of fact, it is otherwise difficult to identify facts amounting to any substantial breach of decorum tending to disturb the peace or to interfere with the comfort of other people in the vicinity, other than the earlier events in Hindley Street, for which there was no intention to arrest: Barrington v Austin. At most the words used might have amounted to hindering police, but that is about as far as it goes. [Citations omitted]
In my view, the conclusions to which the Judge came, and the findings that he made, were entirely open to him.
The attempted ‘figure four leg lock’ manoeuvre
I turn now to the final battery complained of by the plaintiff, the attempted ‘figure four leg lock’ manoeuvre by SC Lovell.[51] At the relevant time, Crossley was effectively restrained, laying prone on the ground with a number of police officers on top of him.
[51] SC Lovell was a Police Constable at the time of the incident on 10 March 2013.
The first point to note is that the Judge found that “…it was undoubtedly the application of the four-figure leg lock that led to a ‘comminuted fracture of the left femoral shaft’”.[52] That finding was not disputed by the defendant. The evidence of SC Lovell was that during the course of applying the leg lock, he heard a “loud pop”, immediately after which “I yelled out to the guys on top, something was wrong with his leg”. Crossley was handcuffed immediately after the pop.
[52] At [24].
However, the defendant’s contention is that resort to that manoeuvre was justified in the particular circumstances. Technically speaking, it is probably unnecessary to address that contention. Since the plaintiff proved that the action of SC Lovell directly caused the comminuted fracture, the onus was on the defendant to prove that handcuffing was justified and the Judge found that the defendant failed to discharge that onus. In other words, since the Judge ruled that the defendant had failed to prove that handcuffing was justified, the details as to how the ‘figure four leg lock’ manoeuvre was applied by SC Lovell in fact became irrelevant.[53]
[53] It is perhaps useful to appreciate that the defendant conceded that what resistance there was by the plaintiff to handcuffing him did not go beyond reasonable resistance to unlawful arrest. Thus, on the hearing of the appeal occurred the following passage at T73: PEEK J: Would you accept that if a purported arrest was unlawful at that point, what he was then doing, in the way that you have just summarised, would not go beyond reasonable resistance to unlawful arrest? MR ROBERTS: I’d accept that.
Nevertheless, ex abundanti cautela, I will address the defendant’s contention that the attempted ‘figure four leg lock’ manoeuvre was lawful in the particular circumstances.
In this regard, the Judge referred in close detail to the video footage of the attempted ‘figure four leg lock’ manoeuvre thus:
112. As noted, Mr Crossley was effectively restrained, laying prone on the ground. The defence claims the length of time taken to secure handcuffs in the locked position, necessarily meant he must have resisted. At 4:46:51.60 his left leg is seen to rise slightly, bent at the knee. Between around 4:47:08.20 and 4:47:12.00 Mr Crossley is seen to move his legs a little, which the defendant maintains amounts to kicking his legs to resist handcuffing. Within moments SC Lovell bends or squats near Mr Crossley’s head, which was facing East before he falls from view of the CCTV camera. It was around then that he began applying a Figure Four Leg Lock’.
113. Soon after SC Lovell arrived upon the scene one can detect some movement of Mr Crossley’s leg for roughly three seconds between 4:47:11 and 4:47.14, in scissor like reactive kick of the legs. So far as one can observe, and whilst bearing steadily in mind that the night vision is not as clear as one would hope, that Mr Crossley’s body is blocked to varying degrees by police officers and spectators, the CCTV footage does not support the conclusion, and if anything, rather refutes the claim that Mr Crossley was ‘kicking and thrashing around’, or ‘struggling back and forth’, and certainly not with the intention of resisting or fleeing. His evidence that he lifted his legs because the police were ‘putting their knees into’ him is a likely natural response to the multiple restraints applied at that time. Such a reaction is consistent with the means by which the police described the restraints they did apply, considering once again that it was very likely Mr Crossley was unable to see very much and to be in some discomfort because of the immediate consequences of the capsicum sprays.
114. It is Mr Crossley’s case that the application of the Figure Four Leg Lock was the cause of his left femur fracture. According to the SAPOL ‘Defensive Tactics Instruction Notes’, applying controlled pressure to avoid injury involves:
Q. … ‘First, while the subject is in the prone position place the ankle of the primary leg behind the knee if the secondary leg’. So you understood that aspect of the procedure.
A. Yes.
Q. At the time you performed this procedure.
A. Yes.
Q. Then it says ‘The secondary leg is bent towards the subject’s buttocks over the entrapped ankle of the primary leg’. Did you understand that aspect of the procedure.
A. Yes.
Q. Then it says thirdly, the third dot point ‘Apply controlled pressure to the secondary leg to hold the lock in place’ …
The ‘Instruction Notes’ with respect to the ‘Figure Four Leg Lock’ advise to ‘place yourself alongside the offender’s legs’ and that ‘only reasonable force be used’.
115. During this particular application of the Leg Lock, SC Lovell applied pressure by placing his knee to the back of Mr Crossley’s left leg. He then put his left foot across the back of Mr Crossley’s right knee without resistance, but then according to SC Lovell, ‘he began to try and kick his left leg out of the hold that I had it in’. He then claims to have held the left leg ‘at the knee and the ankle … with his left foot being across the back of his right knee and the ankle’, achieving ‘half the leg lock procedure’ without completing it. His evidence was that he achieved as much whilst he was on his ‘knees behind and lower down than Mr Crossley’, that is he was not on the body before hearing the ‘loud pop’.
116. Counsel for the plaintiff criticised the evidence of SC Lovell in as much as he ‘was adamant that he did not apply his whole-body weight to the legs, or lie on top of the legs’, intending only to take hold of the left foot, place it behind the right knee and then move his own body around to the base of Mr Crossley in order to keep the lock in place. Mr Crossley’s case is that he was unlawfully arrested, was not told why he was arrested and the circumstances producing the fractured left femur amounted to a third actionable trespass.
117. SC Carter’s [sic Lovell’s][54] evidence was that he did not apply his full body weight to the leg, only that he applied ‘pressure down through my hands’, whilst lying on top of Mr Crossley’s legs’. It appears it was immediately afterwards that the handcuffs were successfully secured. Whilst at first denying that SC Lovell placed his body weight over Mr Crossley’s legs, PC Grimshaw in contrast conceded the accuracy and truth of an affidavit sworn by him not that long after the events in question, ‘I then observed Constable Chris Lovell try to prevent Crossley from kicking his legs around by placing his body over his legs’. [Citations omitted]
[54] The word “Carter” is a typographical error for “Lovell”. The transcript references given by the Judge are accurate references to the evidence of Lovell.
At trial, the evidence was clear, and there was no dispute, that only carefully controlled force should be applied during an application of the ‘figure four leg lock’; and that one should not place one’s own body weight on top of the prone subject because that would generate excessive force which could injure the subject.
But as to whether SC Lovell did apply full body weight, there were inconsistencies as between the police witnesses. SC Lovell denied having done so but SC Grimshaw gave the following evidence in cross-examination:
Q.Did you recall seeing Officer Lovell place his entire body weight over Mr Crossley’s legs.
A. No.
Q. Do you recall preparing an affidavit in respect of criminal proceedings.
A. Yes.
Q. You recall swearing an affidavit on 20 May 2013.
A. Yes.
Q. So that was shortly after -
A. Yes.
Q.- this event. You recall that’s in relation to Mr Crossley being charged with disorderly behaviour and resist police.
A. Yes.
Q.Do you recall saying this ‘I then observed Constable Chris Lovell try to prevent Crossley from kicking his legs around by placing his body over his legs’.
A. I recall writing that, yes.
Q. You accept that’s what you saw him do.
A. I accept I wrote that. I do not recall given the time lapse.
Q.You accept though that your affidavit at the time on 20 May 2013 being only a short period after the event would have accurately recorded what you observed.
A. Yes. [Emphasis added]
The medical evidence concerning the cause of the comminuted fracture
However, the definitive answer was supplied by the medical evidence in the case. Crossley was examined by an Orthopaedic Surgeon, Dr Nagi Guirguis, on 24 March 2014, at the request of his solicitor. In his report of that date, Dr Guirguis diagnosed “a comminuted fracture of the left femoral shaft …”. Subsequently, after being requested to “provide a description of the fracture sustained by our client to his left leg during the course of the arrest on 10 March 2013”, Dr Guirguis watched the CCTV footage contained in Exhibit P1 prior to preparing a second report of 9 February 2019, which states:
1. According to the Plain X-ray films images dated 10 March 2013 there is a long spiral fracture of the left femur with a laterally located butterfly fragment. The fracture had sharp edges and was displaced and angulated.
2. The spiral nature of the fracture is indicative of a significant torsional (twisting) force applied to a two opposite directions to the proximal and distal end of the femur.
2.1 The force has to be sufficiently severe to induce a fracture of one of the strongest bones in the body (the femur) particularly in a young physically active male.
2.2.1Having had access to the CCTV video clip and the three policemen affidavits. I found it difficult to collaborate the video clip with the three policemen statements, due to obstructions by the public gathering. But mostly depending on the three statements, two of which indicated that the officer performing the figure 4 maneuvre applied his body weight across the back of Mr Crossley’s legs. So in my opinion, it is highly likely that the police officer, performed the figure of 4 manoeuvre by applying his body weight on the back of both legs above the knees while bending and twisting the left leg at the knee, therefore not allowing free compensatory movements of the corresponding hip and side of the body to allow for such an abnormal position of the bent and twisted knee. Therefore there were two forces applied at two opposing directions at the two ends of the femur, creating a tortional torque and resulting in the femur fracturing because of the two opposing forces.
2.2.2In my opinion, Mr crossley’s [sic] body was significantly restrained by two officers restraining his upper body and a third officer applying the full weight of his own body on Mr Crossleys’ leg therefore would not allow him to generate enough twisting force to produce the fracture. I noted from the limited view of the CCTV, that the injury occurred soon after applying the maneuvre [sic] and that negates the notion that he was able to generate enough force by twisting his body to induce the fracture.
3.I believe the proper application of the figure of 4-lock procedure according to the SAPOL manual, would have prevented the occurrence of such an injury. The instructions set out certain method of handling the one leg used for the lock, which does not include placing the whole body weight on the body, which would be considered as applying excessive force and, as I stated previously, would not allow for free movement at the hip, to compensate for the abnormal twisting movement of the leg at the knee. [Emphasis added]
Dr Guirguis also gave oral evidence at the trial. In examination in chief, he said, inter alia:
Q.Then you were asked at 2.2 of the letter of 7 February 2019 to ‘have regard to any forces that you consider were applied during the arrest and by whom and how’. You first response [sic respond] to that at 2.2 of your report on p.52 is ‘The force has been sufficiently severe to induce a fracture of one of the strongest bones in the body (the femur) particularly in a young physically active male’. Are you able to say in your experience what sort of circumstances people typically might break their femur, patients might.
A.Yes. It has to be quite a significant force. Usually it’s a motor vehicle accident or fall from a height. So there has to be a considerable force applied to the bone to fracture it one way or the other. This is very unusual to fracture femur with that type of trauma. [Emphasis added]
…
Q.Just to be clear, so when you think this force has been applied, this is probably a difficult thing to sort of demonstrate, but if you can demonstrate, how do you think the legs were positioned at that time when the force was applied.
A.Well, initially the leg was stretched, and then if you imagine this is the knee, then it became like that and then when you move that leg across, this knee has to move a little bit that way. If you put a lot of pressure there, that doesn’t allow that free movement, that has to raise a bit, because this is - I mean, the arm is different than the leg, it’s even more abnormal for you to do that in the leg - and hence that’s an abnormal force has been applied - one force is this and the other force is putting the leg down, not allowing that movement in the leg and it just - the forces have nowhere to go except to break the femur (INDICATES). Something had to give with this.
Dr Guirguis was cross-examined about these opinions and maintained his position. Thus, he was asked:
Q.Let’s suppose that you have a strong person and they are moving around as the police officer attempts to perform the figure four, so that the left leg is being bent and the attempt is made to move the left leg over behind the right leg and whilst this is happening, the person upon whom that is being attempted is moving their body as hard as they can against the police officers attempting to apprehend them, you couldn’t rule that out then, could you, there’d been a force one way and then a force another way and the combination causing the sufficient combined force to break the femur.
A.I mean you can’t fully rule it out but I cannot imagine that somebody can generate enough force while they are on the ground to create that, enough force to break the leg because again, as I said, if that leg was not restrained, all that would happen simply is that the body will just go in the opposite direction, to actually try to create enough force by his body muscles, by the muscular force of his body against the other is just - I don’t believe it would be sufficient.
Q.But if, say, the torso is rocking, say, if he’s lying face down and the body rocks, the upper body rocks towards the left as the left leg is being brought over towards the right, could not the combined force created by those two movements be sufficient to fracture the femur in a mere twist.
A.I really can’t - to be honest I can’t see it because the ground is there, there’s not enough - when you compare that with the picture of somebody standing, one leg in a hole fixed, and the body weight twisting freely in air, and falling, that’s what you need, that’s the force you need. You cannot generate that force by somebody on the ground and wiggling about, it’s just not enough.
I consider that the Judge accurately summarised this medical evidence in the following passage in his judgment:
124. The various opinions expressed by Dr Guirguis in his report and supplemented by his evidence, might be condensed as follows:
·There was an unusually long spiral fracture with sharp edges of the left femur with a lateral butterfly fragment.
·Two forces were applied in opposing directions at the two ends of the femur resulting in a femur fracture.
·The above conclusions as to the facts render it difficult to reconcile, or difficult to ‘collaborate’, the CCTV footage with SC Lovell’s account of the mechanism causing the fracture.
·The probabilities are that full body weight and excessive force was applied across the back of Mr Crossley’s legs, which prevented free compensatory movements, so the force applied will only break the femur.
·Twisting by Mr Crossley contributing to the injury is ‘difficult to comprehend’, because there was not enough space on the ground for him to create the required force.
125. The overwhelming inference to be drawn from the very nature of the compound fracture itself and the mechanisms producing it, is that SC Lovell must have applied his ‘whole body weight’ to the legs of Mr Crossley. No other mechanism satisfactorily explains why such a complex injury could otherwise occur. The spiral fracture was of such an unusual nature that it was something Dr Giurguis did not believe he had seen before in well over 30 years in orthopaedic and musculoskeletal medicine. That injury is not at all consistent with SC Lovell remaining on his knees along-side Mr Crossley; to the contrary, it is more consistent with full body weight force. The very nature of the fracture is equally inconsistent with Mr Crossley’s own body movements bringing about that injury.
126. … Significantly the defence adduced no expert evidence refuting or calling into question the opinions expressed by Dr Guirguis.
127. The defence accordingly fails to establish on balance that SC Lovell acted as he did ‘utterly without fault’, or that it was reasonably necessary, or that the degree of force used was not excessive. The undeniable situation was that Mr Crossley was wholly restrained by the police officers lying prone face downwards, without presenting any further risk to anyone and without attempting to flee, before SC Lovell began to execute the leg lock. The only mechanism rationally explaining the acute nature of the injury was the application of excessive full body weight.
128. Nor is it to the point that the ‘restraining force’ to the left hip area (or proximal end) was applied by another police officer. The fact is that a battery occurred at the hands of the police officers involved at the time, as joint tort feasors. This conclusion is reached without reference to the SAPOL ‘Defensive Tactics Instruction Notes’, which are treated in the same way as the General Order covering the use of capsicum spray, for precisely the same reasons. Here again, these may become relevant, when questions of damage arise. [Footnote omitted]
Accordingly, the Judge concluded that SC Lovell attempted to carry out a ‘figure four leg lock’ manoeuvre by applying his full body weight across Crossley’s legs while bending and twisting his left leg at the knee and that this was inherently dangerous.
These conclusions were well open to the Judge. In fact, I agree with them. There is no reason to interfere with his Honour’s findings that the handcuffing and the attempted ‘figure four leg lock’ manoeuvre were unlawful, the defendant not having discharged its onus to prove that they were justified. I reject Ground 3 of appeal.
I simply add that since writing the above, I have seen the Chief Justice’s additional remarks in draft. I agree with them.
I would dismiss the appeal.
BLUE J: The facts, appeal grounds and contentions are set out in the judgment of Peek J, which I gratefully acknowledge.
Ground of appeal 1
The trial Judge concluded that the defence of self-defence to battery by the applications of capsicum spray by Senior Constable Carter directed at Mr Crossley was not established. This conclusion is challenged by ground 1.
The State contends that the Judge made errors of reasoning by relying exclusively on the vision from the CCTV camera:
·in finding that Mr Crossley did not exhibit aggression without having regard to the evidence (which was not rejected by the Judge) of Senior Constable Carter and Probationary Constable Grimshaw of verbal aggression by Mr Crossley;
·in finding that Mr Crossley did not exhibit aggression without having regard to the evidence (which was not rejected by the Judge) of Senior Constable Carter of his apprehension of being attacked arising from Mr Crossley pushing his arm away and raising his own right arm; and
·in finding that Mr Crossley did not say anything after the first spray and before the second spray without having regard to the evidence (which was not rejected by the Judge) of Senior Constable Carter that Mr Crossley said “I love fucking pepper spray”, of Probationary Constable Grimshaw that Mr Crossley said “I love capsicum” and of Mr Crossley that he said “I put spicier sauce on my steak” after the first and before the second spray.
If these errors of reasoning are established, it would not be possible for this Court to make its own finding on the issue of self-defence in respect of the capsicum sprays. It would be necessary to remit the matter to the District Court for a new trial before another Judge. However, the State accepts that success on ground 1 alone would not affect the damages award because the effect of the capsicum spray was trivial compared to the effect of the subsequent conduct by the police that resulted in Mr Crossley suffering a broken femur. Determination of ground 1 is therefore incapable of being dispositive of the appeal or the action.
Grounds 2 and 3
The Judge concluded that the State failed to prove that Mr Crossley was told on what ground he was being arrested; the arrest was thereby unlawful; and the application of force that resulted in Mr Crossley’s femur breaking was thereby unlawful. This conclusion is the subject of ground 2.
The Judge concluded that, in any event, the State failed to prove that the application of force after the arrest was justified because it failed to prove that the police reasonably believed that it was necessary to restrain Mr Crossley by applying handcuffs or a figure 4 leg lock. This conclusion is the subject of the State’s first set of contentions under ground 3 (ground 3A).
The Judge concluded that, in any event, the State failed to prove that the final application of force was justified because the Judge found that Senior Constable Lovell applied his full body weight across Mr Crossley’s legs while bending and twisting his left leg at the knee and this manoeuvre was inherently dangerous and not justified. This conclusion is the subject of the State’s second set of contentions under ground 3 (ground 3B).
The State concedes that, in order to succeed on appeal, it must succeed on each of ground 2, ground 3A and ground 3B. Its failure on any one of these grounds will entail that the appeal must be dismissed.
Ground 2
Ground 2 challenges the Judge’s conclusion that the evidence did not establish on what ground Mr Crossley was told that he was being arrested and hence the arrest was unlawful.
The State contends that the Judge made errors of reasoning by:
·assessing the evidence as “inconclusive” when Senior Constable Carter gave evidence that he told Mr Crossley that he was being arrested for disorderly behaviour which the Judge rejected for erroneous reasons;
·failing to make a finding about Senior Constable Carter’s evidence (which was not rejected by the Judge) that he had earlier warned Mr Crossley that he was acting disorderly and would be arrested and failing to consider whether Mr Crossley knew from this the ground of his arrest; and
·alternatively by failing to make a finding about Probationary Constable Grimshaw’s evidence (which was not rejected by the Judge) that he had earlier warned Mr Crossley that he was suspected of assaulting Senior Constable Carter coupled with Mr Crossley’s evidence (which was not rejected by the Judge) that he understood he was under arrest for grabbing Senior Constable Carter and knocking his hand down and failing to consider whether Mr Crossley knew from this the ground of his arrest.
If these errors of reasoning are established, it would not be possible for this Court to make its own finding on the issue of the lawfulness of the arrest. It would be necessary to remit the matter to the District Court for a new trial before another Judge. Determination of ground 2 is therefore incapable of being dispositive of the action and, for the reasons given above, is incapable in itself of being dispositive of the appeal.
Ground 3A
Ground 3A challenges the Judge’s conclusion that the State failed to prove that the application of force after the arrest was justified because it failed to prove that the police reasonably believed that it was necessary to restrain Mr Crossley by applying handcuffs or a figure 4 leg lock.
The State contends that the Judge made errors of reasoning by:
·failing to have regard to evidence by Senior Constable Carter, Probationary Constable Grimshaw and Sergeant Mann that it was necessary to handcuff Mr Crossley because, while on the ground, Mr Crossley was kicking, thrashing around and struggling back and forth and by relying exclusively on the CCTV vision which was obscured by onlookers; and
·failing to have regard to evidence by Senior Constable Carter, Probationary Constable Grimshaw, Sergeant Mann and Senior Constable Lovell that it was necessary to apply a figure 4 leg lock to Mr Crossley to handcuff him because, while the police officers were attempting to handcuff him, Mr Crossley continued to kick, thrash around and struggle back and forth and by relying exclusively on the CCTV vision which was obscured by onlookers.
If these errors of reasoning are established, it would not be possible for this Court to make its own finding on the issue of the attempted application of handcuffs and a figure 4 leg lock. It would be necessary to remit the matter to the District Court for a new trial before another Judge. Determination of ground 3A is therefore incapable of being dispositive of the action and, for the reasons given above, is incapable in itself of being dispositive of the appeal.
Ground 3B
Ground 3B challenges the Judge’s finding that Senior Constable Lovell applied his full body weight across Mr Crossley’s legs while bending and twisting his left leg at the knee and this manoeuvre was inherently dangerous and not justified.
I agree with Peek J, for the reasons given by his Honour, that the Judge made no error in finding that Senior Constable Lovell applied his full body weight across Mr Crossley’s legs while bending and twisting his left leg at the knee. Likewise, I agree with Peek J, for the reasons given by his Honour, that the Judge made no error in finding that this manoeuvre was inherently dangerous and not justified.
Ground 3B is not established. It follows that the appeal must be dismissed. Given this conclusion and in the circumstances referred to above in relation to grounds 1, 2 and 3A, it is unnecessary to determine those grounds and I prefer not to do so.
Conclusion
I agree with the order proposed by Peek J that the appeal be dismissed.
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