Tilse v State of New South Wales

[2013] NSWDC 265

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Tilse v State of New South Wales [2013] NSWDC 265
Hearing dates:	11-12, 20-22 March 2013; 26 April 2013; 6, 9-10, 12-13 December 2013
Decision date:	13 December 2013
Before:	Neilson J
Decision:	Verdict and judgment for the plaintiff.
Catchwords:	TORT - false imprisonment - plaintiff arrested and held in custody for 5 hours and 43 minutes before released on bail - arrest must be necessary not reasonably necessary - APVO not proper substitute for bail conditions - bail may be granted without need to arrest - whether arrest was necessary - period held in custody excessive
Legislation Cited:	Bail Act 1978, ss 4, 7, 15, 17, 18 Crimes Act 1900, s 352 Crimes (Domestic and Personal Violence) Act 2007, ss 10, 13, 19, 25, 26 Interpretation Act 1987, s 34, 35 Justices Act 1902, s 153
Cases Cited:	Cannane v J Cannane Pty Limited [1998] HCA26 Carey v State of New South Wales [2013] NSWDC 213 Elcham v Commissioner of Police [2001] NSWSC 614 McCulloch v Maryland (1819) 7 US 159 Thomas v Mowbray [2007] HCA 33 Zaravinos v State of New South Wales [2004] NSWCA 320
Texts Cited:	Brian Donovan QC, Law of Bail: Practice, Procedure and Principles, (1981, Legal Books) P H Lane, Lane's Commentary on the Australian Constitution, (1986, Law Book Company) R M Howie and P A Johnson, Criminal Practice and Procedure New South Wales (Service 124 2014, LexisNexis) Sir William Holdsworth, A History of English Law (5th ed 2003 Methuen & Co Ltd) The Federalist No. 44 (Maddison)(Special Edition, 1788, Leslie B Adams, Jr MA JD)
Category:	Principal judgment
Parties:	Melissa Leigh Tilse (Plaintiff) State of New South Wales (Defendant)
Representation:	P Barham & R Di Michiel (Plaintiff) M Spartalis & G Doherty (Defendant) Foot, Law & Co (Plaintiff) McCabes (Defendant)
File Number(s):	2012/00275857
Publication restriction:	No

Judgment

1. HIS HONOUR: The plaintiff, Ms Melissa Leigh Tilse of Grafton brings an action for damages for the tort of false imprisonment. She claims compensatory damages, aggravated damages and exemplary damages. The statement of claim is pleaded in such a way as to suggest that "wrongful arrest" is a tort. However, it is not. Nevertheless, a wrongful arrest may commence a period of false imprisonment. Such is the plaintiff's allegation.

1. The defendant seeks to justify the arrest and therefore the imprisonment of the plaintiff on the grounds that the arresting police officer suspected on reasonable grounds that the plaintiff had committed the offence of affray justifying an arrest under s 99(2) of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and pursuant to s 99(3)(d) that it was necessary to arrest the plaintiff to prevent the harassment of or interference with witnesses nominated in the defence as Mr Brett Watson, the licensee of the Coutts Crossing Tavern, his wife, Mrs Kim Watson, and Ms Nadine Close.

1. There is no dispute that at 1.35pm on Sunday, 1 May 2011, Senior Constable Peter Barnier of the Grafton Police arrested the plaintiff at Grafton Police Station and that the plaintiff was kept in custody at the Grafton Police Station until 7.18pm, on that evening when she was released on bail. There is no dispute that the period of time in custody was for five hours and 43 minutes. The issue for determination is whether the Senior Constable Barnier suspected on reasonable grounds that it was necessary to arrest the plaintiff in order to prevent the harassment or intimidation of the witnesses named in the defence. Despite the relatively short period that the plaintiff was in custody and the narrowness of the issues tendered for my determination, the matter has been hotly contested and nearly every point that could possibly be raised has been taken.

1. On Monday, 11 March 2013, I commenced a two-week sitting of this Court in its civil jurisdiction at Coffs Harbour. The first seven days were taken up with an action bought by a plaintiff named Randall against the State of New South Wales in which that gentleman alleged that he was assaulted and falsely imprisoned at the Casino police Station by police. I delivered judgment in that matter last Thursday, 5 December. That matter in fact went for a further three days in Sydney, after the seven days in Coffs Harbour. When I finished the matter of Randall at Coffs Harbour this matter commenced and took the rest of the two-week's sittings, namely three days. Only two witnesses were called in the plaintiff's case; the plaintiff herself and Ms Samantha Polley. The only witness called in the defence case was Senior Constable Barnier. He commenced his evidence at 12.49pm on Thursday, 21 March 2013. His evidence could not be completed on Friday, 22 March, as the court needed to adjourn early for the convenience of counsel. His evidence was completed in Sydney on Friday, 26 April 2013. All told, the Senior Constable's cross-examination took the best part of two days. There were then some interlocutory skirmishes before me in Sydney on 9 August 2013 and the matter was then set down for further hearing before me on the 5 and 6 December. I did not reach this matter on 5 December owing to the fact that I was giving judgment in the matter of Randall. This matter continued before me on Friday 6 and Monday 9 and Tuesday 10 December 2013. Yesterday I took "time out" in order to read the voluminous material to which I had been referred.

1. No concession was made by either party, in essence, about any point. For example, the plaintiff said that I would not accept the evidence of Senior Constable Barnier as being reliable, accurate or honest, and the defendant said the same thing about the plaintiff's evidence. The defendant submitted that judgment should be entered in its favour or, in the alternative, that at most the plaintiff's damages should be no more than $5,000 whereas the plaintiff submitted that she ought be awarded damages between $50,000 to $60,000 and interest.

The plaintiff's evidence

1. I turn now to consider the plaintiff's evidence. The plaintiff was born on 26 April 1981. She was to turn 30 on 26 April 2011. She has at least three children. At the time she had living with her her daughter, Lyesha, who was then aged 11, and also residing with her was her daughter, Hope, who was then nine, and then also a third daughter, Isabelle, who was then five. I have stated that the plaintiff was the mother of at least three children because the plaintiff needed to be excused one afternoon, 20 March 2013, because she had to return from Coffs Harbour to Grafton to look after three children to whom she referred as her children and her grandchildren. That can be seen on p 77 of the transcript.

1. At relevant times the plaintiff was unemployed. In 2011 she was studying a TAFE course for a Certificate IV in Information Technology. She was attending Grafton TAFE on Mondays, Tuesdays and Wednesdays, full time, and for a half day each Thursday. At relevant times the plaintiff was in a relationship with Mr David Daley. The evidence which the plaintiff gave, recorded on pp 30 and 31 of the transcript, lead to the view that the plaintiff may have been in a relationship with David Daley between August 2008 and October 2011 However, the plaintiff referred to the relationship as persisting for only some two and a half years ending in October 2011. There is evidence to suggest that at some stage the plaintiff and Mr Daley may have cohabited but the plaintiff gave evidence that he stayed overnight at her residence "now and then". However, it is clear that a number of witnesses believed that the plaintiff and Mr Daley were a defacto husband and wife.

1. Anzac Day 2011 was also Easter Monday. It was also the eve of the plaintiff's 30th birthday. On Anzac Day 2011 the plaintiff and David Daley, amongst others, were to visit the Coutts Crossing Tavern in the village of Coutts Crossing. It is clear that the plaintiff had some long association with that village. When interviewed by police, in particular by Senior Constable Barnier on 1 May 2011, the plaintiff said this,

"It's a lot easier if I just go out there [Coutts Crossing] rather than all my friend's out there... having to come into town. ...as I pretty much have lived out [at] Coutts basically since I was 22, that's pretty much been my home town."

The plaintiff's parents were, in 2011, living at Coutts Crossing on the corner of Kangaroo Creek Road and Kudaroo Place. As at Anzac Day 2011 Mr Desmond Watson, the father of the licensee of the Coutts Crossing Tavern, Mr Brett Watson, had known the plaintiff for nine years as her mother had worked at the hotel. One might infer, therefore, that the plaintiff's parents had been living in Coutts Crossing since about 1992. There appeared to me to be an attempt by the plaintiff to downplay her familiarity with the Coutts Crossing Tavern.

1. Evidence can be gleaned from the plaintiff as to where she lived from time to time. She told me that she had left home at the age of 14. That would indicate that she had left home in about 1995. The plaintiff told me of living in Ulmarra for about two years, and then living in Braunstone for two and a half years, then living in Lower Kangaroo Creek Road at Coutts Crossing for three months; and then living in Tallowood Street, South Grafton for six months commencing in April 2008 but moving from Tallowood Street, South Grafton to 73 Oliver Street, Grafton where she had lived since October 2010. Clearly there is some discrepancy in the dates because if the plaintiff moved to Tallowood Street, South Grafton in April 2008 and only lived there for six months, she would have moved to Oliver Street, Grafton at the end of 2008 rather than in October 2010. One can see the plaintiff living with her parents from 1992 to 1995 at Coutts Crossing and, on the plaintiff's chronology, living at Braunstone for two and a half years which may have been in 2005, 2006 and 2007, then going to Coutts Crossing for a short period of three months into early 2008 before moving into Grafton or South Grafton.

1. Coutts Crossing is a village 18 kilometres south of Grafton and represents a place where a road to Armidale crosses the Orara River. Braunstone is a village nine kilometres north-east of Coutts Crossing and 14 kilometres south of Grafton. When the plaintiff was asked about whether the closest licensed premises to her when she lived at Braunstone was the Coutts Crossing Tavern the plaintiff said that the closest "pub" was at Glenreagh. Glenreagh, according to any map one needs to consult, is 33 kilometres south of Braunstone. In other words, when the plaintiff told me that the closest pub to Braunstone was at Glenreagh, she was not telling me the truth. The only reason not to tell the truth on such a relevantly trivial matter is, of course, to downplay her association with the Coutts Crossing Tavern.

1. In any event, the plaintiff went to Coutts Crossing on the afternoon of Anzac Day in order to have drinks with a number of her friends who lived in Coutts Crossing. She went to the house of Ms Cindy Wilson at 18 Lakkari Street, Coutts Crossing. She went there with Mr David Daley and her three children. The plaintiff went to Coutts Crossing at 3.30. The inference from what she said in the police interview is that she started drinking alcoholic beverages at 4 o'clock. At 4.30 the plaintiff, David Daley and others left 18 Lakkari Street and went to the Coutts Crossing Tavern. She told me that 18 Lakkari Street was only a "five minute walk from the pub". It was conceded by learned counsel for the plaintiff, that at the Coutts Crossing Tavern, she kicked Mr Peter Travers and that led her to being involved with the police. At the tavern the plaintiff spoke with the police and gave to Senior Constable Barnier her details.

1. The plaintiff said that she had ordered hot chips from the kitchen at the tavern, which opened at 6pm in order to take the hot chips back to Lakkari Street for her children to have for dinner. The plaintiff said that as soon as she spoke to the police she obtained the hot chips "over the bar" and headed back to the house in order to feed the children. When she was at 18 Lakkari Street police attended the house. She could recall speaking with Detective King but she did not recall in her evidence-in-chief Senior Constable Barnier's being there. This evidence was then given:

"Q. Was there a disagreement with police officers at Lakkari Street?

A. There was a little bit, yes. They sort of walked into the house without having been let in and woke up all the children and we told them that Dave [Daley] wasn't at the house. We'd already told them he'd got a lift back to town but, yeah, they didn't take much notice of us and continued searching the house.

Q. How did that make you feel?

A. I was a bit upset, you know, mainly because the kids - we'd only just settled them down and got them down and, yeah, they were all sort of up wondering what was going on."

1. Before turning to the events of 1 May 2011, the plaintiff was asked in chief a number of questions about the three persons nominated in the defence. The plaintiff said that she didn't know Nadine Close and that she would not be able to point her out and did not recall what she looked like. She said that she knew Mrs Kim Watson because she and her husband, Mr Brett Watson, had been running the Coutts Crossing Tavern for many years and because her mother had worked at that tavern for approximately 14 or 15 years, and that had been her mother's last employment. When asked about Mr Brett Watson, the plaintiff identified him as the publican at the tavern and then went on to say this:

"I don't really get along with the bloke too well. I try not to - don't - I don't really go to the Coutts pub. I only went there that night 'cause it was my birthday the next day and my friends all lived out there."'

She went on to describe Mr Watson as a very fit man who engaged in, amongst other sports, boxing. She went on to say that despite her not getting along well with Mr Watson she thought Ms Kim Watson was a "pretty nice lady" with whom she got on well. She then said that when she was living at Braunstone it was "too far" to travel to and from the Coutts Crossing Hotel. That was somewhat inconsistent with the evidence she gave in cross-examination about the nearest hotel to Braunstone being at Glenreagh, some 33 kilometres south of Braunstone.

1. The plaintiff's evidence then turned to the events of Sunday, 1 May 2011. The plaintiff said that on that day she had mown the lawn and then she had a shower. Prior to her getting into the shower she observed that David Daley was "going somewhere". She had the shower because she was hot and sweaty. She said that when she was drying herself after showering her lodger, Samantha Polley, knocked on the bathroom door and told her that the police had arrived. She then finished dressing and walked out the front to speak to the police. Even on this piece of evidence there is a dispute. Senior Constable Barnier said that when he knocked on the door at 73 Oliver Street on 1 May 2011 the door was answered by the plaintiff. There is corroboration in that regard for the evidence of Senior Constable Barnier from the evidence by Samantha Polley. She said (T.113) that Melissa, meaning the plaintiff, opened the door to the police. When she said that, this question and answer were given:

"Q. I want you to think about this. Did Melissa answer the door or did you answer the door or perhaps ... Lyesha opened the door. Lyesha would have been 11 then.

A. She could have opened the door, I'm not sure. Melissa normally answers the door".

When asked what the plaintiff had been doing prior to her answering the door Ms Polley said that she had been cleaning the house. She was asked what clothing the plaintiff was wearing and Ms Polley said that she was wearing her Parramatta Eels shirt and footy shorts. Those are the garments which the plaintiff was wearing, which one can see in the electronically recorded interview made later that afternoon at the Grafton Police Station. Accordingly, it is very easy for me to accept that the plaintiff answered the door based on the evidence of both Senior Constable Barnier and Ms Polley who was called in the plaintiff's case.

1. The evidence that the plaintiff gave about her movements immediately prior to police attending her home at 1.20pm on 1 May 2011 appears to have been given to excite some sympathy for the plaintiff herself. In her evidence-in-chief the plaintiff said that she said to the police "What's going on?" and that the police officer who spoke asked to speak with David Daley. There is really no dispute that the person who interrogated the plaintiff at the door of 73 Oliver Street on 1 May 2011 was in fact Senior Constable Barnier. She said that there were two male police standing at the front door, both in uniform, and these are clearly Senior Constable Barnier and then Probationary Constable George Andrew Chakty. The plaintiff then said that she asked the police officer who was speaking words to the effect of what was going on or what was happening. She then said that she may have said words to the effect of what do you want to speak to David Daley about, or something "along those lines". The plaintiff then said that the police office said "Well, we're here to arrest him for assault". The plaintiff replied to that "Well, have you arrested Peter Travers?" who was the person who was alleged to have been assaulted by David Daley. According to the plaintiff, the police officer said "We've already arrested him and charged him with assault and released him on bail". The plaintiff then said that in answer to that she probably said "I'll bring Dave down when he gets back". She said that she said that because she believed the he had gone out when she was in the shower. She said that very shortly after saying that, that she realised he was still in the house and he actually had not left the house.

1. This again raises an issue as to why the plaintiff said she was in the shower. Was it to maintain the position that she believed that David Daley had left the house whilst she was in the shower, so that she could justify stating to police, as the police state she did, that he was not at home? When asked what the police officer said in response to her statement, that she would bring Mr Daley down to the station when he returned home, the plaintiff said that the officer said "We're coming in to have a look" and the plaintiff said "Well, hang on. I'll go in and just double-check". She also then volunteered that the police officer did mention something about someone's head sticking out of a window to which the plaintiff said that she may have replied "It may be one of the children". She said that the police denied that it was one of the children and she went and looked and that was when she saw Mr Daley inside the house and told him to go out to the front to meet the police. He did so and was arrested and put in the back of a caged police vehicle. The plaintiff's evidence continued thus:

"Q. What happened then, after he was put in the police car?

A. Then - I believe its Barnier said to me, 'Well, what are you doing?' and I said 'Well, about to watch the football soon. I just mowed the lawn and had a shower' and he's said 'Well can you come down the station and give a statement? When is it possible time you could come and give a statement?'"

The plaintiff then told Senior Constable Barnier about her TAFE commitments and that she could attend the police station on a Thursday afternoon or a Friday. She then said that Senior Constable Barnier asked her whether she could come to the police station "right now". The plaintiff said that she told the Senior Constable that she had two of her children there, her middle child, Hope, was away at a sleepover and she was awaiting a phone call so that she knew when to go and pick up Hope. She then said that Senior Constable Barnier said words to this effect, "Well ... if she calls while you're giving your statement, you can go to pick her up and come back". She then said that the Senior Constable said that the giving of the statement was only going to "take an hour or two".

1. The plaintiff then said that she told the Senior Constable that she had no-one to look after her other children who were in the house and it was Senior Constable Barnier who pointed out Ms Samantha Polley and he asked the plaintiff whether Ms Polley could look after the children. The plaintiff told, according to her evidence, the Senior Constable that Ms Polley didn't drive and she would be unable to pick up her daughter and that Ms Polley herself "had to get going" and that she could watch them for "an hour or two". She then said that she asked Ms Polley if it was all right for her to mind the two children and that Ms Polley replied "yes, but not to be "any longer than that", meaning an hour or two. The plaintiff then said that she then reiterated to the police officer that if her daughter's friend's mother rang to pick up Hope that she could go and pick her daughter up. She then jumped into her motor vehicle and the police remained in their vehicle, stationary, until they saw her car pulling out of the driveway and then they themselves started what would have been a relatively short journey to the Grafton Police Station.

1. What was said at the door between the plaintiff and Senior Constable Barnier is, of course, contested. However, there is again some corroboration for the Senior Constable's version from what was said by Ms Polley. In her evidence-in-chief Ms Polley said that she was living at 73 Oliver Street, Grafton as at 1 May 2011; that she "got home" not long before the police arrived at 1.20pm. She then gave this evidence,

"They asked if Dave, her partner at the time, was there, and I didn't know if he was there or not and then, yeah, they asked her about the incident at Coutts and asked her, like, would she please come down and make a statement, and she said yes, asked them what time, and they said today, and not long after they left, she left.

Q. Was there any discussion about children?

A. Yeah. She had two of her children at home at the time. I had to baby-sit them."

In cross-examination Ms Polley said that she had babysat for the plaintiff before and referred to the plaintiff's daughters as "like my little sisters". She said that she enjoyed looking after them and that the plaintiff trusted her to look after them and that in the past she had fed them and bathed them. She said that she is content to look after the children and that it was no problem for her. There was no suggestion in Ms Polley's evidence that there was some time constraint on the period during which she could look after the plaintiff's children, nor was there any suggestion by Ms Polley that she had some engagement to which she had to attend on the afternoon of Sunday, 1 May 2011, which limited the time in which she was available to look after the plaintiff's children. It appeared to me after I heard the evidence of Ms Polley that the plaintiff had tried to limit her availability to look after the children in order to place greater significance than might otherwise attach to the length of time that she spent at the Grafton Police Station.

1. In chief, the plaintiff said that she entered the Grafton Police Station where there is a foyer which is open to members of the public. There was an officer behind the desk in the foyer and she told him that she had come to the police station in order to give a statement. She was asked to wait in the foyer. She then said that an officer came to the glass door at the side of the counter, meaning the desk in the foyer, opened the door and invited the plaintiff to come through the door into the interior of the police station. She said that she stepped inside the door and the officer began shutting it, then he put his hand on her handbag and told her that she was under arrest. The plaintiff made it quite clear that the arrest was not in the foyer but only after she has passed through the door between the foyer and the inside of the police station. There is an issue about that.

1. Senior Constable Barnier, who was the arresting officer, said that he arrested the plaintiff in the foyer. Despite the fact that it is now common ground that the police officer who spoke with the plaintiff at the door of her house at 1.20pm was in fact Senior Constable Barnier, and although the plaintiff herself referred to Senior Constable Barnier by name earlier when telling me what had happened at the front door of her house, the plaintiff was unable to identify the arresting officer and did not appear to accept that it was Senior Constable Barnier, although it is now common ground that it was him. This "credit issue" I find to be bemusing. It would be in the interests of Senior Constable Barnier for him to say that the plaintiff was only arrested after she had entered into that part of the police station where members of the public are not admitted because it would indicate that the arrest was not in a public place. However that is not his position. Equally, it would be in the interests of the plaintiff herself to maintain that she was arrested in the foyer of the police station, in a place open to members of the public. However, the significance of the place of arrest would probably be of more note to a police officer than to the plaintiff. The admission by Senior Constable Barnier that he arrested the plaintiff in the foyer is essentially against his interest because he arrested her in a public place. I therefore am prepared to accept his evidence, that he did arrest her in the foyer of the police station, but again, the evidence is positive that there was no-one in the foyer of the police station at the time of the plaintiff's arrest. However in the grand scheme of things this "credit issue" can have little moment.

1. The plaintiff said that when she was told that she was under arrest she was "stunned". She said that she said to the police officer "Why, when I was asked to come and give a statement?" She then went on to say this:

"I was really stunned, just totally shell-shocked at that moment and just thinking of my children. They've only got a babysitter for two hours, like what am I going to do? I won't be able to ring them. Yeah, everything just started running through my head as to what was going to happen with my daughter that wasn't home."

In cross-examination the plaintiff said that at the time that she was told that she was under arrest she was "pretty shell-shocked" which of course is consistent with what she said in chief.

1. Of course, I do not accept that the plaintiff only had a "babysitter for two hours" but I do accept that she was concerned about being able to communicate with her babysitter and/or her children if her phone were removed and how she would make arrangements to pick up her daughter if she could not take a phone call from her daughter's friend's mother or otherwise communicate with her daughter's friend's mother. Whether the plaintiff was actually shell-shocked or stunned depends largely on my acceptance or otherwise of the reliability of her evidence.

1. There is really no dispute about subsequent events at the police station. They can be gleaned from contemporaneous records. The arrest is recorded as occurring at 1.35pm. At 1.37 she was assigned to cell 2. One minute later she was received by the custody manager, Senior Constable Ryan Lynch. At 2.04pm Senior Constable Lynch completed the form on which he was required to make a brief assessment and a visual assessment of the plaintiff. At the same time he also filled out the medical questionnaire and made his general comments. One can accept that that process took the best part of half an hour. At 2.08pm the plaintiff was permitted a toilet break. The custody management record, exhibit C, shows that toilet break lasting for four minutes. At 3.50pm an electronically recorded interview with suspected person commenced and that finished at 4.44pm. One can accept some short time prior to the commencement of the interview that time would have been taken to set up the room and to move the plaintiff from her cell to the interview room. One can accept that after the conclusion of the interview some time would be taken returning the plaintiff to her cell. At 4.50pm, six minutes after the conclusion of the interview a court attendance notice was made. It is exhibit F. The 4.50pm time is shown as date of creation of the court attendance notice on the form itself. At 7.02pm the court attendance notice, a bail undertaking and a facts sheet were printed out. The custodial management record tells me that the plaintiff was formally charged at 7.10pm and released on bail at 7.18pm.

1. The plaintiff was shown a field arrest form which became exhibit B. That lists the property that the plaintiff had on her. Inter alia, she had taken with her to the police station a drink bottle which indicates that she thought she could be there for some time that could be categorised as other than short, but of course that might have been merely an hour. Nothing can be gleaned from that fact. The plaintiff confirmed that the property listed on the field arrest form was the property that she had at the time. The plaintiff was not searched. She said that the only other person in custody at the time she was in custody was Mr David Daley. She told me that she heard her telephone ringing when it had been removed from her custody and she told me that the police had told her that they would answer her phone and give her a message, but when her phone rang it was not answered and she was never given any message. There is no contest about that issue.

1. The plaintiff stated shortly after her interview with Senior Constable Ryan was completed that she needed to use the lavatory and that she needed a tampon from her bag. The plaintiff told me that the police "let me grab one". She then asked that the curtains giving public view to her cell be drawn whilst she used the lavatory and that was done. She said it was drawn "briefly". She then said that the curtain was drawn for about ten minutes and then was re-opened by the police. There is no suggestion that the plaintiff's private affairs were observed by any member of the New South Wales Police in the station or indeed by Mr Daley when she needed to use the lavatory and use a tampon.

1. The plaintiff makes no complaint about the way in which she was interviewed other than making a complaint about the coldness of the interview room. She gave this evidence:

"Q. During the interview with the police officers, how did you feel, how did you feel?

A. Freezing. My voice was trembling because I was so cold. But, yeah, I was just a bit, sort of, confused, I suppose - really as to still why they were arresting me. I'm not saying I didn't do anything wrong but compared to the other two [David Daley and Peter Travers] and what they did I was miniscule.

Q. After the interview concluded, what happened then?

A. Then they said - I said, 'Well, what happens now?' and they said 'You're going to go back into the cell until we finalise the interview records and draw up the paperwork.' I then asked them about how long they think that may take because I was pretty worried and a bit stressed at the time about where my kids were. They said, 'Not quite sure. Another hour. Maybe longer.' I then asked for a blanket because I was, yeah, freezing.

Q. Was a blanket provided to you?

A. Yes, it was then provided. Yes."

The request for the blanket is not contained in the ERISP. However the plaintiff said that it was only after the conclusion of the ERISP that she asked for the blanket and that it was provided. In cross-examination the plaintiff said a number of things about the interview. At p 30 the following question and answer are recorded:

"Q. Did you do that during the interview, did you embrace yourself as if you were cold?

A. Yes, I would have. I was sitting there pretty much the whole time leaning on the table. I think I sat back at some points but sort of the whole time I was freezing."

1. Later, questions were asked about the behaviour of Senior Constable Barnier who did most of the talking at the interview. When asked whether the Senior Constable was polite the plaintiff agreed but grudgingly, stating, "He wasn't rude I suppose". She then described him as being "a bit sarcastic" and said that he made comments which she found difficult to explain and then she said that she thought he was mocking her. When pressed about what she was referring to, she said that she thought that the Senior Constable was repeating things that she said in a mocking or sarcastic manner. When pressed further, the plaintiff said that "Nothing really upset me" and when pressed as to give an instance of what Senior Constable Barnier may have said that mocked her she said she couldn't really do so off the top of her head. At p 71 Mr Barham is recorded as conceding that he made no complaint about the record of interview other than the plaintiff saying that she was cold.

1. Mr Spartalis visited this issue for a third time, commencing on p 91 of the transcript. That is on the second day of the hearing. The significance of this I shall turn to shortly. On p 92 the following evidence was given:

"Q. You know that when you told his Honour yesterday that you were freezing and shivering in the room, that was untrue as well, don't you?

A. No, that was the truth. I wouldn't have asked for a blanket at the end of the interview if it wasn't cold.

Q. You knew that there was no tremor in your voice during the interview, don't you?

A. There was when I was talking. I could feel it.

Q. In fact you were quite relaxed when you were talking, giving an account of what had occurred.

A. No, I don't believe so."

The significance of those questions and answers is that the audiovisual recording of the interview was played to the Court on the afternoon of 20 March 2011. That was played to the Court in the absence of the plaintiff who had to return to Grafton to look after her children and grandchildren.

1. From p 77 it was clear that when the plaintiff said that she needed to return to Grafton it was 4.10pm. It takes about an hour to motor from Coffs Harbour to Grafton. She would not get to Grafton until 5.10pm and she had to be back in Grafton by 5.30pm. The plaintiff agreed that she had the audio of the electronically recorded interview and she said that she would listen to that at home that evening and the Court then had played to it the audio-visual of the interview which became exhibit 3. In addition to noting some errata between what I could hear on exhibit 3 and what is recorded in the transcript of the interview, which is exhibit D, the following are noted on the transcript at p 79:

"The transcript can show that the plaintiff was wearing a short-sleeved T-shirt that appeared to imitate a football jersey, short sleeves, and that each of the three police officers who are seen in the video were all wearing short-sleeved shirts, and I could not see on any occasion anywhere the plaintiff indicate in any way that she was cold."

On p 80 this interchange is recorded: After referring to a question, 'Okay. There's nothing else you want to say", which is Q289 , Mr Spartalis asked me to record that the plaintiff was observed to remove her cap, appeared to wipe her face and replace her cap. He submitted that the plaintiff appeared to be moving or wiping sweat from her forehead but he left that for me to determine. I then said that "I didn't glean anything from that, other than perhaps it was a bit warm for wearing a cap." There was nothing at all to suggest on viewing the electronically recorded interview that the plaintiff was cold. There is nothing to suggest that the courteousness of Senior Constable Barnier could be questioned in any way. There is no suggestion that he mocked the plaintiff, ridiculed her, made any comment or was sarcastic, and there is nothing to suggest the plaintiff was other than fully at her ease.

1. The evidence was given by Senior Constable Barnier that the Grafton Police Station is air-conditioned. The temperature is constant and the police officers walk around wearing short-sleeved shirts. The plaintiff may have asked for a blanket for her use in the cell but whether it was to keep her warm or merely to soften the hardness of the bench or bed in the cell I do not know. I only know what she told me. However the criticisms she made of the conduct of Senior Constable Barnier at the interview are without any foundation whatever, nor can I determine anything about the temperature of the room other than to say that there is no suggestion that anyone was suffering from cold. I am unable to accept the plaintiff's evidence about the interview as being accurate or reliable.

1. The plaintiff said that she then sat in her cell "for hours". It would appear that the plaintiff was in her cell for the best part of two hours between 4.44pm and around 7.02pm. That is over two hours. Her evidence then continued thus:

"Q. What was the next thing that happened to you?

A. The next thing was Custody Officer Benfield, I believe - he came in to check on me. He'd just started. He came on duty. When he got to the door I was pretty upset and I was, sort of, having a bit of a - I don't know, anxiety attack. Hyperventilating. I don't know what you'd call it. I was very stressed. Breathing heavy, you know, trying to catch my breath. Just freaking out. I don't know where my daughter was. It was dark outside. That's out of the little window. I could see it was dark and I still had no idea what was going on with my kids.

Q. What happened then?

A. He, sort of, was a bit concerned and he told me just to take it easy and 'I'll go and find out what's going on and we'll get you out of here'. He then went and must've spoke to the other officers and came back and told me they were still doing the paperwork and he said, 'Look, I'll take you into the custody room and you can - yeah, you can get out of this - you know, get a bit of fresh air and we'll get your, you know, fingerprints and photos done'.

Q. Did that happen?

A. Yes. Then he allowed me to call home and check up on the kids that were at home and find out whether my other daughter had been returned or if they'd call the home phone, but - yeah.

Q. Was there a discussion with Officer Benfield of any sort, about bail?

A. Yes. He asked about bail conditions and I said, 'Look, I'll agree to anything. I just need to get home. I'm, you know, I'm not going anywhere. I will be at court. I just need to get home. I just need to get out of here.'

Q. You were eventually released, of course.

A. Yes.

Q. I take it you don't recall exactly what time it was or do you?

A. I think it was just prior to 8 o'clock when I got home.

Q. How did you find the experience being arrested?

A. Traumatic. Yeah, just very traumatic. I've been through a lot in my life and, just - yeah, that was one of the worst, like, moments. Just watching that sun go down and not knowing where my kids were. It was horrible.

Q. How did you feel about the police defending this matter, the way they have done?

A. I cannot see their defence. They did the wrong thing. I did not raise my voice. I wasn't argumentative. I wasn't in any way difficult. I was doing what they wanted me to do."

1. I do note that Leading Senior Constable Philip Benfield commenced work on 1 May 2011 at 6pm and worked until 6am the following morning. All of that period was overtime, caused by staff shortages. The plaintiff's custodial record indicates that Senior Constable Michael Rheinberger (mistakenly referred to in the transcript as Ryanburger) commenced duty at 6pm on 1 May 2011 and worked until 6.30am the next morning, from the exhibit Q. Exhibit Q records that during that shift, Senior Constable Rheinberger was performing station duties. The plaintiff's custody management record shows Senior Constable Rheinberger commencing as the custody manager for the plaintiff at 6.04pm. That is consistent with Senior Constable Ryan Lynch ceasing duty after a period of overtime and being replaced by Senior Constable Rheinberger on the new shift commencing at 6pm. The same custody management record shows a change of custody manager to Leading Senior Constable Philip Benfield at 7.17pm. However, as I have earlier recorded, the plaintiff was released at 7.18pm. Leading Senior Constable Benfield appears to have been the most senior officer serving at Grafton at any material time as far as this case is concerned.

1. I expect that as a Leading Senior Constable, officer Benfield would have been an Acting Sergeant and officer in charge of Grafton Police Station pro tempore. The inference I drew from the evidence given by the plaintiff that I have just cited is that shortly after Leading Senior Constable Benfield came on duty at 6pm he would have visited those in custody and received the concerns voiced by the plaintiff and set in train the motions which eventually led to the behaviour described by the plaintiff and her release at 7.18pm.

1. The plaintiff said in her evidence-in-chief that she was told at the end of the interview that she will be charged with both assault and affray. Senior Constable Barnier told the plaintiff the time of her arrest that she is under arrest for affray. The only charge that the plaintiff was given on 1 May 2011 was the charge of affray. That is the only charge contained in the Court Attendance Notice printed out at 7.02pm on 1 May 2011. There is a second Court Attendance Notice, exhibit L, which contains two charges. However that Court Attendance Notice was printed out on 1 November 2011 at 11.04am. That Court Attendance Notice was returnable before the Local Court at Grafton on that very day but at 9.30am. It would appear that the decision to charge the plaintiff with assault was made only on or shortly before 1 November 2011 and perhaps results from a letter from the plaintiff's solicitors to the Commander of the Grafton LAC bearing date 10 August 2011 offering to plead guilty to a charge of common assault if the charge of affray was withdrawn. The sequence 2 charge on the court attendance notice printed on 1 November 2011 is for of common assault on Peter Travers. On 1 November 2011 the charge of affray was withdrawn. The plaintiff did plead guilty to common assault on Peter Travers. The plaintiff was fined $550 and ordered to enter into a bond pursuant to s 9 to be of good behaviour for 12 months. I cannot accept the plaintiff's assertion that she was told at the end of the interview that she was being charged with both assault and affray. She was merely charged with affray and no-one had any reason to tell her at that time that she was being charged with assault. Furthermore, the particulars of the affray would encompass an assault upon Peter Travers and the two charges could not run concurrently: one could only be a back-up charge.

Cross-examination of the plaintiff

1. A number of matters were explored in cross-examination of the plaintiff and some of those I have already averted to. The first thing to note is that the first document adduced into evidence in the plaintiff's case was three pages of Facebook entries made by Peter Travers. The Facebook entries were posted on Anzac Day 2011. One generated at 11.37 shows a group of people with this caption "On z piss at the coutts pub... oh ...". Another generated at 11.43am was made by Ash Bancroft who asked Mr Travers with whom he was. The reply given by Mr Travers nominates eight persons and notes that they were playing the game of two-up, the traditional activity on Anzac Day. At about a half hour later a Facebook entry invites Ash Bancroft to join Mr Travers at the Coutts Crossing Tavern. At 12.24pm Mr Travers posted this "Playing up like a second-hand lawn mower". That would certainly seem to indicate that Mr Travers was behaving mischievously at least. Other Facebook entries were posted on the following day, 26 April, commencing at 7.40am. They discussed an altercation in which Mr Travers was engaged on the evening of Anzac Day. At 8.23am Mr Travers posted an entry which contains this matter "Nah mate. I'm fine ey. Couple of cuts and grazes. lol... all just good fun really...". At 10.55am Mr Travers posted a note which indicates that he was still fairly hung-over. Those Facebook entries were printed off by the plaintiff on 26 April 2011 when she became aware, she asked me to believe, of the extent of the interaction between Mr Peter Travers and Mr David Daley.

1. Commencing on p 94 Mr Spartalis commenced cross-examining the plaintiff about her reasons for printing out the Facebook entries. At the foot of that page this evidence commenced,

"Q. Did you search it because you were very cranky about what happened?

A. No, I searched it because I wanted to copy and paste it because it may have come in handy.

Q. What, in case someone wanted to go around to his address?

A. No. In case it came to something like this, or in case I needed it in case I was going to get charged or just in case."

I interpolate that that suggests that as at 26 April 2011, the plaintiff clearly had in her contemplation that it was possible that she could be criminally charged for what were injuries sustained by Peter Travers and the reason for printing out the Facebook entries was to make sure that he was not seriously injured and in fact was laughing off or minimising the extent of what had happened to him on the evening of Anzac Day 2011. However the questioning then continued thus:

Q. How does it help you with this case, can you tell his Honour?

A. It may not. I don't know. I didn't expect this was going to happen, because I didn't expect the police to treat me the way they did. I would never have expected to be treated that way. I'm not a menace to society. I'm not somebody who they pick up on a regular basis. Therefore I would have expected to be treated with slightly a bit more compassion I suppose.

Of course, the protestation that she didn't expect "this" was going to happen is inconsistent with what she had just said. If she perceived that she might be charged she would perceive that she would have some interaction with the police. However, the extent of the last answer amounts, in my view, to pure self advocacy by the plaintiff. She was unresponsively protesting that she had been ill dealt with by the police and that she ought not to have been dealt with in the way that she was, and that she ought to have been dealt with "more compassionately", meaning, I suppose, that she should not have been charged with any criminal offence. The hard fact is, however, that she printed off the Facebook entries in case anything were to happen, that is, in case she and perhaps her partner, David Daley, would be charged for what had happened to Peter Travers at the Coutts Crossing Tavern on the evening of Anzac Day.

1. There is, also arising from cross-examination and other evidence, an issue as to timing of the events at the Coutts Crossing Tavern, and therefore the reliability of the plaintiff's evidence. I have earlier recorded the evidence of the plaintiff in chief that as soon as she had spoken to police at the tavern she obtained the hot chips from over the bar and headed back to Lakkari Street in order to give the children their dinner and to continue having some further alcoholic beverages. In the electronically recorded interview , Q209 followed upon an adverse description of the Coutts Crossing Tavern given by the plaintiff. The question and answer recorded are this:

"Q209. If the, if the hotel's that bad, like, why go to it though?

A. Well, we only really went to get chips for the kids. We thought we'd have two beers. Three beers which we wait for the chips to cook, 'cause they don't start till 6 o'clock cooking. So, we thought, you know just to have a bit of peace away from the kids for an hour we'd sit down there, have a couple, then order chips and go home."

In cross-examination at p 97 the plaintiff confirmed that she had already told me that the fight between Mr Travers and Mr David Daley occurred while she was waiting for the chips to cook. She also confirmed that that must have been after 6 o'clock because the kitchen only opened at 6pm. The plaintiff was asked whether she had hung around after the fight to obtain the chips and she said that she had, and the plaintiff said that she was only at the hotel for "two or three minutes because the chips were already ready."

1. It is difficult to know whether that meant that she hung around for two or three minutes after ordering the chips or for two or three minutes after speaking to the police, however earlier the plaintiff said, at the foot of p 47, that she left the hotel "after 6pm". She confirmed that she had ordered chips for the kids to take home. She agreed about the kitchen only opened at 6pm and that the fight happened after she had ordered the chips.

1. However, an undisputable objective fact is that a CIDS broadcast was made at 6.01pm on 25 April 2011 by a private citizen phoning on a landline to 000 with information that six persons, both male and female, were fighting at the Coutts Crossing Tavern. The incident is referred to as a "brawl" and I shall hereafter use that expression because it has no particular legal significance and because it is used both in documents and used by witnesses to describe what actually occurred at the Coutts Crossing Tavern early in the evening of Anzac Day 2011.

1. It is clear from exhibit 4, the COPS event entry, that the police only arrived at the Coutts Crossing Tavern at 6.15pm and that the plaintiff was still at the tavern at that time. The brawl may have occurred between the plaintiff's ordering hot chips at 6pm and picking them up after speaking to the police very shortly after 6.15. However the period involved appears to have been at least a quarter of an hour and not a few fleeting minutes as the plaintiff would have me believe. Indeed, this was eventually put by Mr Spartalis to the plaintiff commencing at the foot of p 99. This evidence was given:

"Q. The evidence you gave earlier about being at the pub for two minutes after the kitchen opened is wrong as well isn't it?

A. I beg your pardon?

Q. You gave evidence a moment ago that the kitchen opened at 6pm, you got the chips and two minutes later you were out of there.

A. I said that I'd ordered the chips, and the chips were ready by the time the police got there. I spoke to the police then I went and collected the chips. I don't know exact times. This was like, nearly two years ago. I'm unsure of the exact time I ordered the chips or picked the chips up.

Q. I just put this to you squarely. You spoke to Senior Constable Barnier at 6.15 on 25 April 2011.

A. If that's what you're saying. I can't confirm or deny that. I don't know what time it was when I spoke to an officer and I do not recollect if it was that exact officer, but I did speak to an officer and the chips were ready at that point because I picked them up as soon as I spoke to the officer and gave him my details."

Of course when pressed with objective evidence, the plaintiff is prepared to back away but again it does suggest that her evidence is not reliable or accurate.

LUNCHEON ADJOURNMENT

1. Another factor to bear in mind when considering the evidence of the plaintiff, especially the evidence that she gave about what happened at the Coutts Crossing Tavern, is to consider the state of her sobriety at that time. She was asked questions about her alcohol consumption when interviewed by Senior Constable Barnier on 1 May 2011. The plaintiff said that before she went into the hotel, that is between about 4 and 4.30, she had three stubbies of Tooheys New beer. At the tavern she had three schooners of Tooheys New beer and four nips of Stone's Green Ginger Wine. She admitted that she was "probably a bit tipsy" or "slightly tipsy". All told, that would have amounted to 13.3 standard drinks over a period of some two hours. That is discussed at p 34 of the transcript. Although the plaintiff herself said that she was "slightly tipsy", the standard of her inebriation may have been much greater and therefore her ability to remember what actually happened at the Coutts Crossing Tavern on the evening of Anzac Day might not be good and her memory of what was to happen later in the evening might also not be good.

1. The plaintiff said that after leaving the Coutts Crossing Tavern she returned to 18 Lakkari Street, Coutts Crossing, and there were present there Ms Cindy Wilson, Ms Amber Murphy and her husband Mr.Tony Murphy, Natasha Wilson, the daughter of Cindy Wilson, and her boyfriend Mr Gary Brush, and other evidence also says that Ms Samantha Polley was also present. When cross-examined about the interaction of the plaintiff and the police at 18 Lakkari Street, when they called there looking for David Daley, the plaintiff admitted that she "probably did yell at them a little bit" and that she "probably would have [sworn] a couple of times", and this question and answer were then put:

"Q. What about this? 'You're all fucked. We're looking to - we're going to fuckin' sue. The ombudsman will have your fuckin' jobs.' What about that?

A. Yeah. I probably wouldn't have said the F-word that many times because I don't really say it that many times."

1. On 8 June 2002 the plaintiff had been arrested for the offence of offensive language. For that offence she was eventually fined $200 by the Local Court at Grafton. The COPS entry for that offence is in evidence. It is indicative of the language that the plaintiff might use when intoxicated. The narrative contained in the COPS entry for that charge is this:

"About 2am on Saturday 8 June 2002, police were performing foot patrols of the corner of Prince and Pound Street, Grafton in an effort to disperse a large crowd after the closing of nearby licensed premises.

At this time police had cause to arrest a female by the name of Scaybrook, a friend of the defendant.

Whilst police were arresting Scaybrook the defendant continually yelled verbal abuse towards police saying words like 'What are youse locking up a female for you fuckin' cunts. Youse are nothing but fuckin' cunts. Fuck youse.' Police cautioned the defendant about her use of offensive language and a short time later left the area.

About 15 minutes later police were patrolling when they were noticed [sic] the defendant and another female involved in a verbal argument. Although police were approximately 50 m away in a moving vehicle police could clearly hear the defendant yell, 'fuck you, you're a fuckin' white cunt. How many of youse will it fuckin' take to have ya's.' At this time a scuffle broke out between the defendant and several other people.

Police intervened in an attempt to stop the imminent brawl. The defendant turned to police and said, 'Youse never fucking help us out, you fucking cunts.' The defendant was then again cautioned about the use of offensive language.

As police calmed the situation down the defendant continually enraged the group, at one time attempting to physically attack another person, speaking to police.

At this time the defendant lashed out yelling 'You fuckin' racist slut, you fuckin' cunt, try to fight a 15-year-old will ya, ya slut.'

Police then took hold of the defendant's arms and informed her she was under arrest. She was cautioned, to which she stated, 'I know, fuck youse.'

The defendant was then conveyed to Grafton Police Station where she was issued a field Court Attendance Notice for the matters now before the court.

At the time of the incident the defendant was moderately affected by intoxicating liquor."

I have, when quoting it, not commented upon the egregious errors of spelling made by Constable Wiles, who compiled the narrative.

1. It is also clear from the verbiage used by the plaintiff, when interviewed by the police on 1 November 2011, that even when sober the plaintiff is prone to using foul language. It appears to me to be more probable that the version of events to which Senior Constable Barnier was to depose as happening at 18 Lakkari Street, Coutts Crossing, is the more accurate and reliable version. I turn now to his evidence.

Onus of proof of lawful arrest

1. Before doing so I should probably state the obvious as to the onus of proof. These are civil proceedings. The onus of proof of the plaintiff's cause of action obviously lies with the plaintiff. However, the burden of a proof when the police arrest a person falls upon the police. In Zaravinos v State of New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58, Bryson JA, with whom Santow JA and Adams J concurred, said commencing at [37] this:

"In the present case the burden of proof that the arrest and detention were lawful fell on the defendants under the defence of justification which was attributed to them. Even if the circumstances mentioned in s 352(2)(a) of the Crimes Act1900 exists, the lawfulness of the arrests of Mr Zaravinos are examinable, and the arrests were not lawful unless each decision to arrest was made in good faith and for the purposes for which the power to arrest exists, that is the purposes of bringing the person arrested before a justice and conducting a prosecution; and not for some extraneous purpose. Arresting a person for the purpose of questioning him and investigating the circumstances of the suspected offence or any other offence is arrest for an extraneous purpose. It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary, high-handed and humiliating behaviour in the circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of information and summons as an alternative course, and the considerations favouring and adverse to the taking of that alternative course, are relevant where the validity of the exercise of the power to arrest is in question.

Whether or not the arrests themselves were lawful, the burden of proof of the lawfulness of the continuance of detention throughout the period rested on the defendants."

Section 352(2)(a) of the Crimes Act 1900 has been replaced by s 99(2) of LEPRA. The dictum which I have quoted remain applicable to an arrest governed by s 99 of LEPRA.

1. Incidentally, I should mention that Mr Barham, who appeared for the plaintiff, made submissions to me about the meaning of "good faith". "Good faith" is not a term used in s 99 of LEPRA. The requirement that an arrest be carried out in good faith represents a judicial gloss. Mr Barham referred me to the judgment of Kirby J in Cannane v J Cannane Pty Limited [1998] HCA26; (1998) 192 CLR557. In that case Kirby J discussed at [101] the meaning of the term "in good faith", but that, of course, was a term used in s 121(1) of the Bankruptcy Act 1966 which was the subject of the consideration of the High Court. Dicta about words used in a statutory context cannot be applied literally to the same words used as a judicial gloss by judges speaking of the requirements of an Act which do not use that term. Clearly, in the dictum which I have quoted from Bryson JA above, his Honour used the words "in good faith" in contradistinction to an arrest being made for some ulterior or extraneous purpose.

Senior Constable Barnier's evidence

1. Senior Constable Peter Barnier was attested as a probationary constable of police in 1999. He initially saw service in Sydney. In about 2009 he was posted to Grafton. On Anzac Day 2011 he commenced his shift at 6pm. He was working with two probationary constables, Probationary Constable George Chakty and Probationary Constable Andrew Jeffrey. As I have previously mentioned, the CIDS incident was broadcast at 6.01pm. Senior Constable Barnier and the two probationary constables were assigned to the police car known as Grafton 25. I have earlier referred to the CIDS message. Grafton 5 responded to the call. It is clear from the COPS event entry and from Senior Constable Barnier's notebook, exhibit 7, that they arrived at the Coutts Crossing Tavern at 6.15pm. They drove there with lights flashing and sirens sounding.

1. The Senior Constable said this about what he observed:

"I observed a number of people. People were starting to leave. We started speaking to witnesses there and at that time we identified a crime scene which we proceeded to basically keep people out of. I started obtaining witness details as people were leaving, I made a number of inquiries, a number of entries in my notebook for witnesses."

The copy of the Senior Constable's notebook for this attendance was then put into evidence. He went on to say that he was shown where the brawl had occurred and he saw blood. He saw a white parked utility in the car park of the tavern and there was blood on it. He said he also saw a blood trail leading away from the crime scene. He also saw that there was broken glass there. Eventually colour photographs were put into evidence and they became exhibit 19, showing blood on the Nissan utility, on the surface of the car park and a blood trail along the front verandah of the tavern, as well as pieces of broken glass.

1. The first witness details recorded by the Senior Constable in his notebook were the details of the plaintiff. This evidence was given:

"You've identified her there as a witness. Why have you done that?

A. She was about to leave. So before she left, I thought she might have been a material witness. So I wanted to get her details before she left the scene.

Q. How would you describe her at that time?

A. Intoxicated. She just wanted to go home. She didn't really want to give her details, but basically I said, 'Look, it's a serious matter. I need your name and address and phone number.'"

The inference to be drawn from that evidence itself is that she was reluctant to give her details because she wanted to leave.

1. However, that led to some unnecessary cross-examination. That unnecessary cross-examination commences at p 187 line 30 and continues to p 188 line 40. The cross-examiner believed that the witness had indicated that she was reluctant to give her evidence because she did not want to be a witness, rather than that she was reluctant to give her details because she wanted to go home. It is clear from the evidence given by the Senior Constable that he only meant that the witness was reluctant to give her details because of her desire to leave, not because of any obstruction on her part.

1. The witness was then directed to what he was told about what had happened in the brawl in order to ascertain how serious he thought the incident may have been. The Senior Constable said that he had been told by Mr Watson and his wife that there had been a "glassing". He said that Mr Watson had told him that a man had been glassed "to the head". Mr Watson believed that the person who was injured had had serious injuries and had been "rushed to hospital". He had been informed that the injured person was Mr Peter Travers. He also was told by Mr Watson that the person responsible for the "glassing" was Mr David Daley. When asked whether he observed anything about Mr Watson, the Senior Constable said this:

"He was pale. He was sort of like puffing and panting. He had a sweaty complexion. He was soiled. He had blood on his shirt. He looked quite stressed and shocked really."

Exhibit 19 contains two photographs of Mr Watson taken on 25 April, showing his upper body and in particular blood stains on his basically white shirt. One of the photographs does show Mr Watson as "goggle-eyed" but that might be a photographic effect and cannot be taken to represent his physical condition at the time he was photographed. However, from what the Senior Constable did say, it would appear that the "brawl" had only recently ended.

1. The Senior Constable also spoke to Ms Kim Watson. She gave him the same information as her husband. The Senior Constable described her as "pale, hyperventilating and really breathing hard". He also said that she said that what she had witnessed was one of the most violent things she had ever seen. According to the Senior Constable the witness, that is Kim Watson, looked "fearful". Both Mr Fred Watson and Ms Kim Watson told the Senior Constable that they did not want David Daley to return to the tavern again.

1. After observing the crime scene and taking notes about the alleged victim and the alleged offender and other details, Senior Constable Barnier spoke to his supervisor, Senior Constable Richard Beresford, who was the acting sergeant. He asked that a detective be assigned and he pointed out that he had established a crime scene. He also requested the attendance of crime scene officers. Detective King arrived at the scene about 7.30pm or a little bit before. A crime scene guard was appointed. That initially was Probationary Constable Chakty. Detective King suggested that he knew where to go to try to find David Daley. Detective King led the Senior Constable and Probationary Constable Jeffrey to 18 Lakkari Street, Coutts Crossing. This evidence was then given:

"We went to the front door, knocked on the front door. There's no answer. It appeared locked. But we could hear voices coming from the background, like, as if there was a party coming out from the backyard. So Detective King, myself and Andrew Jeffrey walked around the back. As soon as we've gone - it's like there's a side gate, just like going through the gate, and there is quite a number of persons on like a back decking to do with the house. As soon as we walked in, Detective King said - basically introduced himself, 'We're the police'. As he was speaking a woman 'jumped up from the table, and ran straight into the back door of the house. Detective King followed. I also followed. We went into the house and started searching the house, believing that Dave Daley was inside."

1. It was then made known that the woman who had got up and run inside was not the plaintiff but Ms Natasha Wilson, the daughter of the householder Cindy Wilson. He said that then the plaintiff started yelling at the police. He went on to say this:

"A. Said, 'You fucking pigs. You can't come in here. The fucking ombudsman is going to hear about this. I'm going to fucking sue. I'm going to have your fucking jobs for this.' She was - she came right up to our faces, she was waving her finger at us, pointing."

There was then demonstrated a distance of about 30 centimetres between the police and the pointing finger. The Senior Constable went on to say this:

"A. Detective King and myself and Andrew Jeffrey continued quickly searching the house. The plaintiff basically continued the same sort of verbal abuse, 'Fucking pigs. Get out. You fucking need a warrant'. At this stage I think Detective King noticed the front door was wide open, and he's gone out the front door and basically - I think there was another gentleman there by the name of Gary Brush on the front and, yeah, there was no sign of Mr Daley.

Q. So how would you describe the plaintiff's demeanour at that time?

A. She was the most aggressive female there. She was very, very angry. She was just yelling at the top of her voice almost to the point of screaming, and I felt we had to leave, otherwise she's probably going to assault us. It was that bad.

Q. How did that make you feel by the way?

A. Basically I wanted to just leave. I just thought, you know, 'Detective King, it's time to go. We've searched the house. Let's just get out of here.'

Q. Were you concerned that something was going to happen?

A. Yeah. If we stayed there something would have happened. I found it odd at the time because her being the most aggressive there and she didn't live there. Like, I could have understood it if she was the owner of the house, but - yeah."

He then pointed out that the plaintiff was still intoxicated.

1. The police then returned to the Coutts Crossing Tavern and Detective King had a brief conversation with Mr and Ms Watson and Mr Desmond Watson, the father of Mr Brett Watson, and then Senior Constable Barnier returned with other police to the Grafton Police Station.

1. On the way to the Grafton Police Station they went to the plaintiff's address, 73 Oliver Street, Grafton. They were looking for David Daley. Having been informed that David Daley was the partner of the plaintiff, they thought it prudent to search for him at the plaintiff's residence, which she had disclosed when giving her details. Senior Constable Barnier said that the police knocked at the front and rear doors of the plaintiff's house and walked around it to see if anyone could be seen through the windows of the house. No-one could be seen and the house was in darkness. So, after spending some five or ten minutes at the house, they returned to the Grafton Police Station, where Mr and Ms Watson and Mr Desmond Watson were either then present or about to arrive in order to make statements. Detective Senior Constable Barnier took statements from Mr Desmond Watson and also from Mr Brett Watson. Probationary Constable Jeffrey took a statement from Ms Kim Watson.

1. On the following evening, 26 April, Senior Constable Barnier took a statement from Ms Nadine Close and also electronically interviewed Mr Peter Travers. After conducting those interviews, the Senior Constable decided that he would arrest the plaintiff. Accordingly, the initial decision to arrest was based only upon what was conveyed to Senior Constable Barnier by Mr Brett Watson, Mr Desmond Watson, Ms Kim Watson, Ms Nadine Close and Peter Travers. Information he actually obtained after that time is relevant only to the issue of whether the Senior Constable should have changed his mind, and perhaps, is relevant to whether it reinforced in him the initial determination to make the arrest. However, whether the Senior Constable had reasonable grounds to suspect that it was necessary to arrest the plaintiff to prevent the intimidation of or interference with witnesses must be determined at the time he made the initial decision. It is important, therefore, to know what information was available to the Senior Constable at the time he made the decision to arrest, either after interviewing or reading the statements of the five witnesses who had then provided statements to the police.

Information available when the decision was made to arrest the plaintiff

1. The first statement to which I should refer is a statement of Mr Brett Watson. At the time of making the statement he had been the licensee at the Coutts Crossing Tavern for ten years. The statement says this:

"4. On Monday the 25th of April 2011, we were open for Anzac Day and we were running two up from about 1:00pm to 5.45pm. Everyone was having a great day and I was running the bar and running the courtesy bus. About 5.30pm, I returned from a trip with the courtesy bus and Kim Watson, my partner, told me that there was a problem with Peter [Travers]. She told me she had refused service to him as he was intoxicated. Kim told me he was not aggressive, but he was intoxicated and had to leave.

5. I observed Peter for a while and a short time later, I then saw Peter speaking to a fellow whom I know as Dave Daley. Dave was wearing a red t-shirt and a pair of dark shorts. Dave could be described as Aboriginal complexion, about 180 cm and of solid build. Dave would be about 30 years old. I've known Dave for three to four years and I know Dave goes out with Melissa Tilse. Dave and Melissa used to reside together in Coutts Crossing, but I think they have now left the local area. I have had trouble with Dave before where he is aggressive and has thrown a glass at the hotel about a year and a half ago. He's been barred from the hotel before for this behaviour.

6. When I saw Peter and Dave having a heated conversation together I suspected trouble. Both Dave and Peter were at the front of the hotel at this time and I walked over to them to try and separate them and settle them down.

7. Both Peter and Dave were arguing about silly stuff. I asked them to quieten down, but they wouldn't. I then asked them to come around to the side of the hotel and have a quite chat together so that they would calm down. I also thought that if something did happen, that their behaviour would not disturb the other patrons as I was concerned for the customers' safety.

8. The friends of both then came over to where we were and I tried to push the crowd back so that they would not get involved. I asked both of the men to cut out their behaviour because I didn't want innocent people hurt and there were families and children there.

9. I think Peter said, 'Do you want a go?'

10. Dave said, 'Yeah, I'll have a go'.

11. Dave didn't muck around and I'm pretty sure Dave hit Peter first using a good right hand closed fist. Peter retaliated and they both traded punches. I stepped back out of the way as they were throwing punches as both boys were about 100 kgs each and quite solid. They went toe to toe for a while with both boys exchanging punches and hitting each other. Dave got the better of Peter and Peter ended up on the ground and hit his head quite hard on the grass with Dave on top of him. I tried to break up the fight and I got them apart with help from other people around. Peter was still aggressive and wanted to continue the fight. Both boys then exchanged punches again with Peter being the main aggressor. Dave was a better fighter and Peter ended up on the ground again with Dave on top of Peter.

12. I tried to break the fight up again and some other people helped me. There was a lot going on and there were other people involved in the fight as well. I managed to separate both parties again and I had hold of Peter and Peter broke my hold and ran over to Dave and punched Dave to the left side of his face. All through the fighting there were voices yelling, 'Hit the dog' , 'Knock him out'. There were both female and male voices. Peter's girlfriend, Nadine Close, was trying to get Peter out of there and into the car to leave. Dave's partner, Melissa Tilse, was [egging] Dave on and was the most aggressive female there. She was yelling, 'Fucking hit him, he's a dog.'

13. Both boys began punching each other again and the fight has ended up near a white utility. Peter was up against the ute and Peter was getting a flogging. Dave was just pounding Peter with punches to the face and must [have] punched him five to six times. I pulled Dave from Peter and things began to settle down. I have managed to push Dave back to the grassed area near the hotel and I went back to see if Peter was alright. At this time I noticed someone had given Peter a drink in a seven Oz. I took this off Peter and then I was trying to get Peter out of there. I then heard my wife yelling out, 'Dave's got a glass, Dave's got a glass'.

14. I moved in Dave's direction to try and get the glass off him. I noticed he was holding a seven Oz glass in his left hand. He was holding the glass in a clenched fist. It was [as] if he was about to hit something with it. He was not holding it as if he was going to drink out of it. I said, 'Dave, give me the glass.'

15. I tried to grab the glass from his left hand, but he flicked his wrist as I grabbed him and I lost my grip. Dave was marching across to Peter and Peter was still on his haunches. Peter was squatting down and did not see Dave approaching. Dave then smashed the seven Oz glass over the back of Peter's head. The glass smashed instantly and made a loud crash and I saw pieces of glass go everywhere. Moments later I noticed a lot of blood trickling down Peter's neck. I went over to try and get Peter into his girlfriend's car. We had trouble getting Peter into the car as he was argumentative and refusing to leave. We finally got him into the car with his girlfriend driving. As his girlfriend drove off, Peter tried to get out of the car and all of Peter's mates were trying to push him back in. I opened the driver's side door and got his girlfriend out and she got in the back and I got in the driver's side. I then drove Peter to Kangaroo Creek Road and he settled down. I stopped the car and I asked Peter to get out of the car and I had a look at Peter's head in the headlights.

16. I saw a four centimetre cut on the back of his neck just in his hairline and another cut what looked like at the top of his head. There was a lot of blood. I told Peter and his girlfriend, Nadine Close, to go to the hospital and report it to the Police. I then drove back to the Coutts Crossing shop and got out. I did not see Dave when I got back. Police had then arrived a short time later. I gave police details where Dave may [have] went [sic]. I showed Detective King the house where I believed Dave and Melissa Tilse would [have] gone and where I believed he would be staying."

I have quoted that extensively to give some substantial background to the event that occurred at the Coutts Crossing hotel on the evening of Anzac Day 2011.

1. In his oral evidence Senior Constable Barnier gave evidence about fears expressed to him by both Brett Watson, Kim Watson, Nadine Close and others. There was then a substantial disagreement between counsel as to the significance of that evidence and, although it was admissible not as to truth of the contents but only as to what was conveyed to Senior Constable Barnier, learned counsel for the plaintiff made it quite clear that he did not accept the veracity of what the Senior Constable had said. To try to solve the dilemma I needed to make certain interlocutory orders.

The orders that I made on 9 August 2013 contain these:

"If the defendant is to adduce any further lay evidence, an affidavit of any such lay witness giving his or her evidence-in-chief is to be made and a copy of it or them is to be served upon the plaintiff's solicitor and counsel by 4pm on Friday 18 October 2013.

Noted: The witnesses concerned are Ms Nadine Close, Mr Brett Watson, Ms Kim Watson.

If any such affidavit be served, plaintiff is to give notice to the defendant's solicitor by 4pm on 1 November 2013 that the witness or witnesses is/are required for cross-examination."

Pursuant to that direction, the defendant served affidavits from Brett Watson sworn 18 October 2013 and Kim Watson sworn 18 October 2013 and also from the defendant's solicitor, Ms Kate Dobbie, sworn 17 October 2013, concerning attempts to obtain an affidavit from Nadine Close. The affidavits in question were served upon the plaintiff in accordance with the orders I made.

The plaintiff's solicitor did not serve notice that the witnesses were required for cross-examination until two days before the scheduled resumption of the hearing, on 5 December. That was insufficient time to obtain the attendance at Court of two witnesses from the Coutts Crossing Tavern, eighteen kilometres south of Grafton, especially when they were the licensee and the licensee's wife. The plaintiff's solicitor by his conduct waived the right to cross-examine.

1. Mr Barham, for the plaintiff, made an application that I take evidence from Mr and Ms Watson by video link and he accepted that, if it were only put to them that what they said was incorrect, that they would probably merely reply that what they did say was correct, and he merely wanted to put those formal propositions to the witnesses to avoid any submissions under Browne v Dunn. Either video or telephone link. The problem then arose that my courtroom is not designed for either video or telephone link. It would be necessary to obtain another courtroom and courtrooms in the District Court are at a premium on Fridays because of the substantial criminal listings on that day, and because Fridays is motion days in the civil list: there are generally more judges available than there are courtrooms. However, I accept no Browne v Dunn point can be taken.

1. Mr Brett Watson, in his affidavit, said that he had a conversation with Senior Constable Barnier to the following effect:

"Me: 'They're [Melissa Tilse and David Daley] are troublemakers. They've caused me trouble before.'

Barnier: 'What've they done?'

Me: 'They've both been argumentative in the hotel with other patrons and have started fights. After what they've done, I don't want them back in the hotel ever again. What happens if they come back and cause us trouble?'

Barnier: 'Call us if they do and we'll come immediately. We won't let them get away with it'.

Me: 'I'm worried about my patrons. They could ruin my hotel's reputation. How do I protect my family and my business from them? They're the type that will come back and harass us.'

Barnier: 'Look, it's a serious offence to intimidate witnesses. Bail conditions can [be] imposed that will keep them away from you and the tavern. That will provide you with some protection.'"

1. The statement of Kim Watson obtained by Probationary Constable Jeffrey sets out her version of this brawl and of the main actors in the brawl, being "Peter" and "Dave". Par 5 of that statement is this:

"About 20 minutes later [after about 5.30] a female came to the bar and told me that there was a fight happening in the car park. I went out and saw people everywhere punching and kicking. There were about 15 people in the area at the time trying to stop the fight that was happening. This happened for around 2-3 minutes trying to stop the fight. I saw a couple of girls arguing with each other and I turned one to the side to get them to leave. I remember seeing one woman kicking a fellow whilst on the ground."

1. Accordingly, at the time of the foundation of New South Wales, power to grant bail resided in the justices of the peace. The first time that I am aware that power to grant bail was given to the police was by s 153 of the Justices Act 1902 inserted by Act No. 32 of 1918. Subsection (1) of that provision was this:

"Any member of the police force who is of or above the rank of sergeant or is for the time being in charge of a police station, and any gaoler shall have the same power of discharging any person who is in custody on the person's entering into a recognisance, with or without sureties, for a reasonable amount to appear before a Justice or a Court at any time and place named in the recognisance, or to comply with any order, or to perform any act, or on the persons giving security by an acknowledgement pursuant to subsection (1) of section 84, as a Justice has under the provisions of this Act. When any such member of the police force or gaoler refuses to discharge any such person on recognisance or on giving a security by an acknowledgement as aforesaid, the person shall be brought before a Justice as soon as practicable and the Justice shall thereupon hear and determine the matter."

Apparently that provision was still in force even though the Bail Act was enacted because it is still contained in the Justices Act as it was reprinted on 2 May 2000. It is clear that under that grant of power a person to be granted bail was a person, "who is in custody". Accordingly, it would appear to me that prior to the enactment of the Bail Act 1978, police could only grant bail to persons who were in custody.

1. Section 17 of the Bail Act 1978 bears a heading "Authority for police to grant bail". It provides this:

"(1) A police officer may grant bail in accordance with this Act to an accused person who is present at a police station if the officer is:

(a) of or above the rank of sergeant and present at the police station, or

(b) for the time being in charge of the police station.

(2) A police officer may not grant bail to a person accused of an offence if:

(a) a determination concerning bail has been made by a court under this Act, or

(b) the requirement for bail has been dispensed with under this Act,

in respect of the offence.

(3) A police officer may not grant bail to a person who has been arrested pursuant to a warrant to bring the person before a court for sentencing and any such person must be brought before a court as soon as reasonably practicable.

(4) Despite subsection (3), a police officer may grant bail to a person referred to in that subsection if the police officer is satisfied that exceptional circumstances justify the grant of bail and the police officer is otherwise entitled to grant bail under this Act."

It is to be noted that subs (1), besides identifying those police who are able to grant bail, provides that the police so authorised may grant bail, "to an accused person who is present at a police station". That provision does not mirror the verbiage of s 153 of the Justices Act 2002 which refers to the granting of bail to, "any person who is in custody".

1. Section 18 of the Bail Act provides this:

"(1) Where a person is charged by a police officer with an offence and the person is in custody, the proper officer shall, as soon as reasonably practicable:

(a) give the accused person such information in writing respecting the person's entitlement to or eligibility for bail as is prescribed by the regulations and sign an acknowledgment in the prescribed form that he or she has given the accused person the information, and

(b) if the proper officer is:

(i) authorised to grant bail - determine whether or not bail should be granted to the person or bring the person or cause the person to be brought before a court, or

(ii) not authorised to grant bail - bring the person before the court or an authorised officer.

(2) The authorised officer before whom a person is brought pursuant to subsection (1)(b)(ii) shall, as soon as reasonably practicable, determine whether or not bail should be granted to the person or bring the person or cause the person to be brought before a court.

(3) In this section:

(a) a reference to the proper officer is a reference to:

(i) subject to subparagraph (ii) - the police officer who laid the charge against the accused person, or

(ii) where it is not reasonably practicable for the police officer referred to in subparagraph (i) to perform the duties prescribed by subsection (1) - the police officer for the time being in charge of the police station at which the accused person is in custody or, if the person is not in custody at a police station, a police officer who has custody of the person, and

(b) a reference to bringing a person before a court is a reference to bringing the person before a court for the purpose of having the court exercise its powers in relation to bail or for the purpose of the person being dealt with otherwise according to law."

Clearly, s 18 is mandatory or compulsory where a person is charged by a police officer and is in custody. That person must be afforded information to exercise his or her rights to seek bail and be given an opportunity to seek bail from an authorised police officer that is one of or above the rank of sergeant or the officer for the time being in charge of the police station.

1. In my view, there is force in the submission that there is a difference between ss 17 and 18. Section 17 grants, it is true, authority for police to grant bail but is facultative in the sense that it gives the authorised officers power to grant bail to an accused person who is present at a police station. Section 18 is not facultative but mandatory where there is a person at the police station in custody or otherwise in police custody. That person is to be given an opportunity to seek bail from the police.

1. The following provisions in Pt 3 of the Bail Act do not assist me in the question of statutory interpretation. Section 35 of the Interpretation Act1987 refers to headings, however, no submission was put to me as to the significance of the heading to s 17. Initially, I believed it to represented merely the granting of power to the police but, on reflection, it appears that it goes beyond that.

1. I earlier discussed this matter in Carey v State of New South Wales [2013] NSWDC 213 commencing at [40]. At [41], I pointed out that in the work of Howie and Johnson, Criminal Practice and Procedure New South Wales, provides no commentary on s 17 which I described as a, "curious provision". I appear to have accepted in that case that s 17 was purely facultative and that the substantive provision was s 18 and accordingly said, obiter, that the only power the police had to grant bail is if a person had been arrested. Under s 34 (2) of the Interpretation Act1987, I am entitled to use certain extrinsic material. Under subs (2) (c), I am entitled to have regard to any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made. Exhibit 29 is a report of the Bail Review Committee ordered to be printed on 30 September 1976, a report to the Parliament of New South Wales. The report, I am told by a handwritten notation on it, was dated 30 September 1976 and was brought into existence for the purpose of reviewing bail procedures in this State which led to the enactment of the Bail Act 1978.

1. On p 32 of the report commences a section of the report relating to police bail. The first paragraph notes that the police power to release on bail is governed by s 153 of the Justices Act and exercised in accordance with instructions issued by the Commissioner of Police. On p 33, there is a heading, "Alternatives to arrest and bail". The following matter then appears:

"Police bail powers are used only where a defendant is arrested. If the summons procedure is used instead, the defendant is not taken into custody and the need for bail does not arise.

Many people are now arrested, taken to a police station, charged and bailed when there was no need for arrest in the first place or when, after arrest, there was no need to formally charge and require bail. Many people arrested are well known to the police - or are readily identifiable - as likely to appear on a summons, or easy to locate if they do not.

A summons procedure is certainly not appropriate in every case. For example, if a continuing breach of the peace is likely if the person is not arrested, or if he cannot readily provide information of his identity sufficient to satisfy police that he will appear, arrest is appropriate.

But the Committee believes that many of the arrests now made are an abuse of power and unnecessary. Far greater emphasis should be placed on the use of alternatives to arrest which avoid the need to take the defendant into custody at all and reduce the amount of police time and resources involved in formally charging, bailing, holding, and transporting to court."

1. On p 34, another section of the report is headed, "Citations in New South Wales", and essentially advocates the adoption of a system in this State which was not enacted at the time of the Bail Act1978 and which the Committee recommend which would have enabled police to issue the equivalent of a summons. This procedure has been much more recently adopted and is the CAN system.

1. One can, therefore, glean from the provisions of the Bail Act itself, supported by that extrinsic aid to interpretation, an intention to entitle police with the requisite authority to grant bail to any person present at a police station and one can also glean from the Act that a person need not be in custody in order to be granted bail.

1. Counsel for each party have spent some considerable time in providing me with written submissions on the question of a proper interpretation of the Bail Act. The defendant's submissions on this aspect have been marked for identification 10 and will be left with the papers. The plaintiff's written submissions on the same topic are marked for identification 16 and will be left with the papers. I merely remark in passing that Mr Spartalis was able to find some commentary on s 15 of the Bail Act, being an observation by my late colleague, Mr Brian Donovan QC (as he then was) in his text, "Law of Bail: Practice, Procedure and Principles", published in Sydney in 1981 by Legal Books. My late colleague said that s 15:

"Apparently applies to an accused who, although not in custody, is liable to be taken into custody. The section may able to be used to deal with an accused in his absence in relation to bail."

The first sentence of the comment which I have just made clearly indicates that the learned author believed that s 15 applied to an accused who, although not in custody, might be liable to be taken into custody and that would, of course, include a person at a police station who has been interviewed by police.

Was arrest of the plaintiff necessary?

1. Accordingly, I have reached the view that it was open to Senior Constable Barnier not to arrest the plaintiff at the time she came to the police station to be interviewed by him. He clearly intended to charge her. He had formed that intention on the evening of 26 April 2011. He could have told her that he intended to charge her with affray and he could have told her that he would recommend to the bail sergeant that she leave the police station if she signed a bail undertaking which contained the terms or similar terms to the terms ultimately imposed. However, he did not. I wholly suspect that he did not do so because he did not know that he could do so.

1. When Senior Constable Barnier arrested the plaintiff, he arrested her for the only valid purpose that an arrest can be effected: in order to commence proceedings against her for the crime for which he arrested her. In other words, the mere fact of arrest and stating that he arrested her for affray, ought to have told the plaintiff that she was going to be charged with affray. Whether or not that occurred to her at the time she was arrested would depend on the state of her legal knowledge, which I infer was not great.

It is clear that the plaintiff was prepared to provide a statement. If she had, when she presented herself to the police station, been afforded an opportunity to give her statement, it would have taken, one would think, the same amount of time that it actually took, 54 minutes. That means from the time she arrived at the police station, 1.35pm, she would have been finished at the police station by about 2.30. However, to proceed with the charging process, more time would have been required both to generate the facts sheet and the court attendance notice and undertaking the necessary forensic procedures of fingerprinting and photographing if such are applicable to someone who has not been arrested.

1. The complication, of course, was that David Daley was in custody. He needed to be interviewed. As he was the principal antagonist in the brawl at the Coutts Crossing Tavern, one would think his Court Attendance Notice would need to be generated, his date of appearance known and, therefore, the date to be placed on the Court Attendance Notice for the plaintiff and presumably on the future Court Attendance Notice to be issued to Peter Travers. The interview with Daley took 26 minutes. One can say roughly half an hour. One can see, therefore, the interview with the plaintiff going from roughly 1.35 to about 2.30, then a half hour for the interview with Daley takes one to about 3 o'clock and then perhaps an hour for processing Daley, then another hour to process the plaintiff which takes one to approximately 5pm. The question then is would the plaintiff have waited around in the police station from 2.30 to 5 o'clock? If one believes what the plaintiff herself asked me to believe, that she would be only at the police station for, "an hour or two", which appears twice on p 11 of the transcript, then one would not expect her to have waited beyond, say, 3.30. That would have been only an half hour after Daley had been interviewed, accepting that Senior Constable Barnier could have started interviewing the plaintiff immediately at 1.35 and then followed on swiftly with the interview with David Daley going up till 3 o'clock when it is clear from his evidence that he needed to attend to at least one other matter, which was the transfer of a juvenile arrested early on that morning by Senior Constable Barnier for breach of bail. He was bail refused at the police station and needed to be transported to the local juvenile detention centre and that occupied the period from 2.50 to 3.40pm. That, of course, is the best part of another hour which would extend it to around 5.45pm. It is unlikely in my view that the plaintiff would have waited around for such a period of time. She is likely to have gone home to take back the care of her children and to await the call from her middle daughter's friend's mother so that the plaintiff could pick her middle daughter up from her friend's place after the sleepover on the Saturday night preceding.

1. If that be the case, and the plaintiff had not been arrested, she was entitled to leave with or without the consent of Senior Constable Barnier. He would have been in the position of being able to issue her with a Court Attendance Notice in the mail, that is, the old summons procedure, or the future CAN. But he would not have been able to impose any bail conditions because the plaintiff would no longer have been at the police station. It is important to bear in mind the terms of s 17(1). The accused person to be granted bail must be, "present at a police station". Senior Constable Barnier could not have left the police station and gone to the plaintiff's home and served her with a Court Attendance Notice and bail conditions, let alone require her to sign her bail undertaking.

1. I am acutely aware that the plaintiff's evidence is that she would have agreed to "anything", meaning bail conditions, in order to get out of the police station which is what she told Leading Senior Constable Benfield. The question is not whether she would have agreed to any particular conditions; the question is would she have waited around until the whole process could have been completed. That is the question. If one believes what she asked me to believe, then the inference I draw is that she would not have waited around. She would have gone home. If she had, that would not have allowed police to impose any bail conditions because she was no longer present at the police station. In referring to the time spent processing David Daley at the police station, I am, of course, giving consideration to the provisions of s 116 (2) (h) of LEPRA. I have accepted that Senior Constable Barnier had reasonable grounds to suspect that the plaintiff had the ability or propensity, that is, she could or might interfere with or harass witnesses. The question then becomes whether it was necessary for him to arrest her to achieve the purpose of preventing any such harassment or interference.

1. The only practical way of seeking to prevent that harassment or interference was the imposition of bail conditions. Senior Constable Barnier himself could not grant bail. That could only be because he was not of the requisite rank. He had to leave that to the person in charge of the police station who was, after 6pm, Leading Senior Constable Philip Benfield. The time constraints indicate to me that the only practicable course was to arrest the plaintiff. She could have, if told that she was going to be definitely charged, refused an interview and left. She could have refused to wait around, kicking her heels until Senior Constable Barnier was ready to interview her. Even if Senior Constable Barnier interviewed her as soon as she arrived at the police station, she may have refused to wait after the interview was completed and certainly could well have refused to wait whilst he attended to the interview with Daley or transported the young offender to the juvenile detention centre.

1. It has been submitted on behalf of the plaintiff that if she indicated to Senior Constable Barnier that she was going to leave without his having served upon her a Court Attendance Notice and taken her before the officer in charge for the granting of bail, that he could then have arrested her because such arrest was in the circumstances necessary. However, it was always open to the plaintiff to leave without anyone's permission and to leave when Senior Constable Barnier would not have known that she was leaving, for example, when he was interviewing David Daley or when he was taking the young person to the juvenile justice centre, when she was physically out of the sight of Senior Constable Barnier. Furthermore, if she had not been arrested, one would think that she would have been required to wait in the foyer of the police station rather than in the charge room or even in an unlocked cell. One can easily glean from the evidence that I have heard and what I have seen that the plaintiff would, if she had felt that she had other things to do, hardly wait around to meet the convenience of the Grafton Police.

1. Accordingly, despite the ability of the police to impose bail conditions without an arrest being necessary, I am persuaded on the balance of probabilities that it was necessary for Senior Constable Barnier to arrest the plaintiff in order to prevent harassment of or interference with any person who might be required to give evidence in the proceedings for affray that the Senior Constable had determined to bring against the plaintiff. There was nothing in the knowledge of Senior Constable Barnier to suggest that the plaintiff might meekly wait around to be dealt with in due course by the police. He was entitled to take into account not merely the fact that she went voluntarily to the police station when he asked her to, as the plaintiff relies upon, but he is also entitled to take into account her behaviour towards him and other members of the police force on the evening on 25 April and to the fact that the plaintiff made a representation to Senior Constable Barnier at 1.20 on 1 May which was untrue, that David Daley was not in her house when he was. I am, therefore, persuaded on the balance of probabilities that the defendant has discharged the onus of justifying the necessity of the arrest of the plaintiff.

Period in custody was excessive

1. I have spent some nine hours thus far giving these reasons for judgment. Suffice it to say, that I also come to the view that the period that the plaintiff was held in custody was excessive. Section 115 of LEPRA provides that the investigation period is the period that begins when a person is arrested and ends at the time that is reasonable having regard to all the circumstances but does not exceed the maximum investigation period. The maximum investigation period is four hours. Section 116 makes provision for determining a reasonable time and s 117 provides for certain times to be disregarded in calculating the investigation period.

1. The defendant submitted that the investigation period was in fact three hours and 13 minutes, deducting from the five hours and 43 minutes the four minutes in which the plaintiff was using the lavatory and two hours and 26 minutes commencing at 4.52 when the, "charging process" began. With the utmost respect to the defendant, that charging process is overly long and I have already spoken of that. Approaching the way I have approached this matter this afternoon, the plaintiff could have been processed, assuming all other things were equal, by 5pm, that is, in some three hours and 25 minutes. The various steps are outlined in exhibit 30 which was admitted as evidence of the facts. The document is headed, "Particulars to paragraphs 23 (d) and 27 of the amended defence", and also in the defendant's chronology which has been marked for identification 13 and left with the papers. I have pointed out that according to Senior Constable Barnier, he commenced the fact sheet at about 1.41pm and spent 20 minutes to half hour on it. I have pointed out that despite the evidence of Senior Constable Barnier that it might take up to 20 minutes to complete a Court Attendance Notice, the Court Attendance Notice appears to have been generated in a period of six minutes between 4.44pm and 4.50pm. I do know that the interview with David Daley was from 5.05 to 5.33, according to exhibit 23. Giving Senior Constable Barnier time for a break between 16:15 and 5.05, the interview with David Daley finished at 5.33. If he then continued with the compilation of the fact sheet or finished the compilation of the fact sheet, one would have thought that would have been completed by 6 o'clock and the formalities of charging and bailing could have been completed by 6.18pm. They were not completed until 7.18pm. Accordingly, in my view, the plaintiff was detained for one hour longer than was reasonably necessary.

1. This is no criticism of Senior Constable Barnier at all or of any member of the New South Wales Police serving at Grafton in April or May 2011. The reason that the plaintiff could not be dealt with more promptly was because of understaffing. I could spend an hour outlining the evidence as to understaffing at the Grafton Police Station. There is enough documentary evidence of it. The fact is that the police could not attend to the statutory time limits because of the lack of human resources.

1. As a result of my finding, the plaintiff is entitled to recover some damages, as I understand it. That is, the imprisonment for an hour in excess amounted to a period of false imprisonment. Counsel agree that the amount of time the plaintiff was kept in excessive custody, that is, for an extra hour, amounts to a period of false imprisonment for which she is entitled to recover damages. It is appropriate that the State of New South Wales pay the damages because it is the State of New South Wales that did not provide the resources to the Grafton Police that led to the plaintiff being detained in custody longer than she ought to have been detained.

1. The question then becomes what is the quantum of those damages. The authorities make it clear that the length of time is not of particular significance but the shock of being arrested is and a large amount of damages payable for false imprisonment comes from that initial shock. Here, the initial shock was because of a lawful arrest and, therefore, cannot be part of the wrongful imprisonment. The plaintiff was kept away from her home and her daughters and from what she might normally do for an hour between roughly 6.15 and 7.18pm on the evening of Sunday, 1 May 2011. Minds may differ as to the significance of such a period of custody. Doing the best I can, I assess the plaintiff's compensatory damages in the sum of $2,500. This is not a case in which aggravated damages or exemplary damages ought be awarded. There is nothing that Senior Constable Barnier or any other member of the Grafton Police did that in any way aggravates the damages. The damages arise because of inaction on the part of the police because they were involved with other activities. There is no particular conduct of any member of the police force to be condemned or which the Court should reprimand because the incurring of the damages was caused by a very common problem in our community, a lack of resources of Government to remedy mischief.

1. In my view, interest should run on that sum from 1 May 2011. Commencing on 1 May 2011, the interest rate was 8.75%. That remained the interest rate until 31 December 2011. The interest rate from 1 January 2012 to 30 June 2012 was 8.25%. The interest rate from 1 July 2012 to 31 December 2012 was 7.5%. The interest rate from 1 January 2013 to 30 June 2013 was 7% and the interest rate from 1 July 2013 to today's date is 6.75%. Counsel will kindly work out the interest while I have a rest.

1. Counsel agree that interest on that amount at the rates prescribed under the rules from 1 May 2011 to date is the sum of $485.32. For those reasons, I give verdict and judgment for the plaintiff against the defendant for $2,985.32.

[SUBMISSIONS ON COSTS]

1. HIS HONOUR: In the exercise of my discretion, I order the defendant to pay one-third of the plaintiff's costs.

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Amendments

05 February 2014 - Stylised amendments only.

Amended paragraphs: Titles.

Decision last updated: 05 February 2014