Tomkinson v Weir - [1999] WADC 79

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TOMKINSON -v- WEIR & ANOR [1999] WADC 79

CORAM: NISBET DCJ

HEARD: 20-21 SEPTEMBER 1999

DELIVERED : 7 OCTOBER 1999

FILE NO/S: CIV 722 of 1998

BETWEEN: NICHOLAS KENNETH CAMERON TOMKINSON
Plaintiff
AND
MALCOM WEIR
First Defendant
RAYMOND FRANK COLLINS
Second Defendant

Catchwords:

Trespass to the person - Trespass to goods - Wrongful arrest - False imprisonment - Misfeasance in a public office - Malicious prosecution - Plaintiff policeman brings action against defendant policemen for damages arising out of incidents taking place at plaintiff's residence during execution of search warrant.

Legislation:

Police Act 1892

Criminal Code

Misuse of Drugs Act 1981

Result:

Judgment for plaintiff.

Representation:

Counsel:

Plaintiff:     Mr L Tsaknis
First Defendant             :     Mr W S Martin QC and Mr M Bowden
Second Defendant         :     Mr W S Martin QC and Mr M Bowden

Solicitors:

Plaintiff:     John Quigley & Co
First Defendant             :     Cannon Bowden
Second Defendant         :     Cannon Bowden

Case(s) referred to in judgment(s):

Canterbury Club v Rogers (1993) A Tort Rep 81-246
Cole v Turner (1704) 87 ER 907
Crowley v Murphy (1981) 52 FLR 123
Greenwood v Ryan (1846) 1 Legge 275
Lamb v Cotogno (1987) 164 CLR 1
Little v Law Institute of Victoria (No 3) [1990] VR 257
Myer Stores Limited v Soo [1991] 2 VR 597
Northern Territory v Mengel (1995) 185 CLR 307
Plenty v Dillon (1991) 171 CLR 635
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Wan v Sweetman (1998) 19 WAR 94
Watson v Marshall (1971) 124 CLR 621
Williams v Milotin (1957) 97 CLR 465

Case(s) also cited:

Abbott v Refuge Assurance Co [1962] 1 QB 432
Bell Canada v Bannermount Limited (1973) 35 DLR (3d) 367
Cowell v Corrective Services Commission (1988) 13 NSWLR 714
Danby v Beardsley (1880) 43 LT 603
Delacey v R unreported; CCA SCt of WA; Library No 7687; 31 May 1989
Garratt v Dailey (1955) 279 P 2d 1091 (Supreme Court of Washington)
Hicks v Faulkner (1878) 8 QBD 167
Hillier v Leitch [1936] SASR 490
Northern Territory v Mengel (1995) 185 CLR 307
R v Venna (1976) 1 QB 421
Sanders v Snell [1998] HCA 64, 157 ALR 491
Shaw v Donaldson 78 ACTR 1
The Queen v Iorlano (1983) 151 CLR 678
Walker v Lovell [1975] 1 WLR 1141
Wan v Sweetman (1998) 19 WAR 94
Warrell v Kay (1995) 83 A Crim R 493
Webster v Lampard (1983) 177 CLR 598
Williams v The Queen (1986) 161 CLR 278
Wilson v Pringle (1987) QB 237

NISBET DCJ: On 15 January 1997 the plaintiff was a police officer under suspension awaiting trial on a charge of assault. At that stage he had been a member of the Western Australian Police Force for about 14 years and whilst his age was not given to me he looked to be in his 30's.
In the early hours of the morning of that day the plaintiff had taken a sleeping pill and was still under its effect (as I find) when he was woken by loud banging noises. He then lived in a town house in Como which comprised two storeys, occupying a bedroom upstairs. He shared this house with another person who had a bedroom downstairs.
Eventually the loud banging further woke the plaintiff from his sleep such that he was able to get out of bed to investigate the noise. He said he thought his house was in the progress of being burgled and he got out of bed wearing only his underwear and went to investigate. He could not see any conspicuous vehicles in the street nor any persons when he looked out of the upstairs window. Coming out of his bedroom he noticed that an upstairs sliding door which led onto a balcony was open and, he said, concerned that someone could climb over the roof of the carport underneath that balcony and gain access to it he thought he should close it before he went downstairs to investigate further, and, in the event that his apprehension that he was being burgled was correct, catch the burglars.
The shutting of the upstairs sliding door leading to the balcony was observed by one of the persons below, part of a group of senior policemen from the Internal Affairs Unit of the Western Australian Police Force who had attended at the premises to execute a search warrant to search for illicit drugs pursuant to the provisions of the Misuse of Drugs Act 1981. Two of those present were the first defendant, a sergeant, and the second defendant, an acting inspector. The defendants testified that they arrived at the plaintiff's residence at about 7.05 am and had spent a considerable time trying to get somebody inside the house to open the door to them. Sergeant Weir deposed that he had access to surveillance information which suggested that the plaintiff was inside and, as must have been abundantly clear, his car, a distinctive BMW with personalised number plates and his motorcycle, again, a distinctive Harley Davidson, were both still parked in the carport.
Just as those below were observing the shutting of the sliding door to the balcony, the second defendant, who had climbed the rear pergola, appeared outside a window which I understand was opposite the sliding door, and the plaintiff, turning to go downstairs, saw the second defendant, whom he did not recognise, none of these parties ever having met before, and said: "Who the fuck are you?"
The second defendant claims that he not only said that he was a police officer but also took out his wallet containing his badge and identification and pressed it against the screen to the window so that the plaintiff could see it. I somehow doubt this although I don't doubt that he said he was a policeman. I accept that the plaintiff said words to the effect that if he was from the police then he should get off his pergola and he would see him downstairs. The second defendant testified that having held up his police badge to the screen he said: "We've got a warrant to search your premises. I require you to open the door and let us in" whereupon he said the plaintiff walked over "… he looked at my ID and looked at me and said, 'You'll have to break in, won't you?' and then he closed the window shut." The second defendant went on to say that he then yelled out to the other members of the search team that the plaintiff would not let them in and they were going to have to break in. This was put to the plaintiff who emphatically denied it. I accept the plaintiff's denial. I think it quite improbable that he would have told a police officer at his premises attending to execute a search warrant that he would have to break into his house.
The plaintiff said, and I accept, that he went down the stairs where the banging was still coming from when he saw two people trying to jemmy open the rear sliding door. He turned to open the front door (which I gather was directly opposite) when he saw the first defendant and, a short time later the second defendant.
The first defendant told the plaintiff that he was from Internal Affairs and that he had a search warrant to search the premises. The plaintiff deposes and I accept that he wasn't shown a search warrant at that stage, and upon the officers identifying themselves and their purpose he was happy to let them into his premises. The plaintiff deposed (and I also accept) that he at no time objected to the search nor took any step which could in any way be interpreted as obstructing the officers in their search. He asked the first defendant what he was looking for and he was told for drugs, the first defendant saying that he was looking for cannabis and speed.
At this juncture the first defendant asked the plaintiff why he hadn't opened the door and the plaintiff explained to him that he hadn't heard him, that he had taken sleeping tablets during the early hours of the morning, an explanation which the first defendant appeared then to accept. Certainly no evidence was given of any disputation of it at the time.
The plaintiff, being under suspension without pay was obliged to work in other employment and he had an appointment in the city at 8.00 am. By the time the defendants and the others had been let in to the premises and the plaintiff gone upstairs to his bedroom to get dressed he noticed the time as being approximately 7.40 am. At this stage the first defendant was conducting the search in the upstairs area of the house and the plaintiff, whilst getting dressed says, and I accept, that he told the first defendant that he had to leave, that he had an appointment and that if he wasn't under arrest then he was free to go, to which the first defendant agreed. After he was dressed the plaintiff went back downstairs where he saw the second defendant and asked him if he was under arrest and, as with the first defendant, the second defendant said 'no'. The second defendant in effect denied that he was asked by the plaintiff inside the house whether he was under arrest but testified that he had certainly heard the plaintiff ask the first defendant whether he was under arrest and heard him being told by the first defendant that he wasn't.
At any rate the plaintiff made a telephone call to explain that he would be late for his eight o'clock appointment and then, telling the second defendant that he was quite happy for him to continue with the search as long as he locked up when he left, the plaintiff walked out to the carport. On his way out he picked up his helmet, which is an open faced helmet, his gloves and his glasses and walked to his motorcycle.
At this stage it is as well to record what all of the parties accepted was standard police procedure in executing search warrants, particularly under the Misuse of Drugs Act. It is police policy to require the search to be conducted if at all possible in the presence of the householder. If that is not possible then the search is conducted in the presence of a justice of the peace or some "disinterested" senior officer. If a householder chooses to leave during the progress of a police search then the search is suspended until a justice of the peace or a "disinterested" senior officer can be brought to the search site.
The first defendant said that when asked by the plaintiff if he was under arrest he replied: "No, Nick, you're not under arrest but all we need is your cooperation. The sooner we get it done, the sooner we can go." The second defendant said that as the plaintiff left the house he followed him out and:
"… just stated to him that we only wanted his cooperation and if he cooperated it wouldn't take us long and we'd be out of there. He kept on repeating that if he wasn't under arrest he was leaving. I followed him into the carport where there was a BMW car which was facing forward out of the carport toward the road and a Harley Davidson motorbike also parked facing towards the front. He started up the bike and I said that as a police officer I was ordering him to stay while I asked him questions regarding our inquiry."
The second defendant claimed that he was empowered to order the plaintiff to stay by reason of the plaintiff being a police officer and he being a senior officer was permitted to give the order pursuant to regulation 603 of the Police Regulations 1979. Because the only consequence of disobedience to the lawful order of a superior is the potential for a reference to a disciplinary tribunal for which the plaintiff would not be liable to arrest (s564 of the Criminal Code refers, do, s42 of the Police Act 1892) it is not necessary for me to resolve the question of whether or not this was a lawful order. However, for what its worth, in my opinion it was not. What matters is that the second defendant was prepared to use the order as an attempt to prevent the plaintiff's departure, giving a strong indication of his depth of feeling on the matter. In my opinion the second defendant would have been quite irritated by the plaintiff's insistence on leaving the premises during the conduct of the search.
Each of the plaintiff and the second defendant agree that the second defendant's order to the plaintiff to remain at the premises was given whilst the plaintiff was standing alongside his motorcycle. The plaintiff disputed the second defendant's right to give him an order to stay having regard to the fact that he was under suspension and proceeded to don his helmet, gloves and glasses and sit astride his motorcycle which, I should have noted earlier, the plaintiff had already started by switching on the ignition and turning over the motor so that the motor was warming whilst idling on the choke. The plaintiff described the noise of his idling Harley Davidson motorcycle as being extremely loud. Anyone who has ever heard one of these machines would have no difficulty in accepting that. I think it fair to infer that the noise of the motorcycle going in the enclosed carport would have been heard by the first defendant from inside the house.
What happened next is critical to the determination of this case. In order to understand the evidence it is necessary to appreciate the physical layout of the carport in relation to the house. The photographic exhibits P3 and P4 can be a little misleading unless they are viewed in conjunction with the sketch drawn by the first defendant, Exhibit D4. As can be seen, the sketch drawn by the first defendant showing the approximate positions of the motorcycle and the motor car accord with the photographs taken by the plaintiff to show the approximate position of both vehicles at the time of the events I am about to describe. As the premises are looked at from the front the carport is located to the right hand side of the front door. It is an open, double carport and in order to reach the carport from the front door one has to walk alongside what may be described as a semi‑screen wall to one's left until reaching a pathway onto which a person leaving the front door would execute a 90 degree turn to the left and then walk onto the driveway and from there into the carport.
The second defendant said that when he was speaking to the plaintiff and ordering him not to leave the premises the plaintiff was off his motorcycle and that afterwards he got onto his motorcycle and when he was on his motorcycle the second defendant was standing approximately in level with the plaintiff's back as is depicted in Exhibit P2, the plaintiff there being shown astride his motorcycle. Exhibit P2 should be observed closely. It depicts the front of the motorcycle quite some distance in front of the handlebars. As with Exhibits P1 and P4 it also shows the plaintiff's right hand and the right side of the handlebars of the motorcycle quite close to the left hand or passenger side rear vision mirror of the motor car. I find that the photographs and the sketch of the approximate positions of the motor car and motor cycle in the carport are quite accurate and may be safely relied upon.
The plaintiff said that having told the second defendant he was leaving he manoeuvred his machine past the mirror of his car such that the front wheel of the motorcycle would have been very close to the front of the motor car. The plaintiff was gradually releasing the clutch which is operated by depressing a lever located on the handlebar immediately above the left hand grip. Obviously, when the clutch is released with the motorcycle in gear, as it was here, the machine is set in motion. As the plaintiff was gradually releasing the clutch he was watching the second defendant to ensure that he did not come in contact with him when he says the second defendant without warning grabbed his left arm pulling it from the handlebars and causing him to let go the clutch. In consequence of this the motorcycle lurched forward when the second defendant then grabbed the left hand handlebars and proceeded to pull him and the whole machine to the ground, to the plaintiff's left. The plaintiff described it as being almost in one motion. The plaintiff went on to say when he got up from the carport floor after being pulled from his machine he stood up to lift his motorcycle up and then for the first time saw the first defendant and, struggling with his machine, livid with the second defendant and neither of the defendants offering him any assistance, he called both defendants 'bastards'. The first defendant then told him he was under arrest but did not at that stage say why. The plaintiff says that having picked up his motorcycle and put it on its stand he went back into the house and on his way back in he asked what he was under arrest for and was told by the first defendant that he was under arrest for assaulting a police officer. The plaintiff said he had no idea which police officer he was said to have assaulted and didn't ask. He was, he said, totally disgusted and livid in consequence of which he decided just to keep quiet and say nothing.
The first defendant's version of these events is somewhat different. He says as he saw the plaintiff walk out the front door followed by the second defendant he went back upstairs to tell the other officers what had happened and having done that came back down the stairs to see what the plaintiff was doing. He said he needed to know whether the plaintiff had gone or whether he was still there because what further action he took depended on whether the plaintiff was going to stay or not. Whilst this is nearly enough accurate as I find, it is not quite so although for the purpose of my decision in the matter the difference is not that material. For completeness however I should say that I think that it is more probable than not that the first defendant would have heard the motorcycle running and would have known that the plaintiff was preparing to make good his stated intention of leaving the premises. What he said next followed was:
"… I saw the plaintiff seated on his motorcycle. He was sitting on the motorcycle. The engine was going and he had on a black open faced helmet and Mr Collins was standing to his left and they were engaged in some earnest conversation. Mr Tomkinson was shaking his head but I couldn't hear what was being said at the time. [The motorbike engine was running at the time. It was a noisy engine.] I was walking slowly across the front of the BMW [motor car] which had been reversed into the carport. I started off with perhaps a metre and a half, two metres [in front of the BMW motor car] and then I was walking slowly towards where they were. I was looking at those two. As I crossed the front of the BMW motor car Mr Collins looked at me, followed shortly after by Mr Tomkinson who also looked at me. I continued to walk. It was my intention to walk to the side of - and stand by the side of Mr Collins and I was walking across the front of the BMW car and across the front of the motorcycle. I would have been about a metre from the front of the motorcycle when it suddenly raced towards me and it struck me. [At the time Mr Tomkinson looked at me there was nothing between him and me and I was about a metre away from him.] [The first defendant was then asked to describe how and where the motorcycle hit him and he stood up in the witness box and demonstrated and testified further.] The front wheel of the motorcycle went in between my legs here and something hit me on the shoulder and the arm. I think it was the handlebar that hit me on the top of the arm here. I'm not sure what hit me on the forearm. [Then] I sort of flinched and I tried to get out of the way and with the force of the motorcycle hitting me and trying to get out of the way, I stumbled backwards and backed onto the parked vehicle and was sort of supported by the vehicle. I didn't fall to the ground."
The first defendant was then asked if he had seen the second defendant interfere with the plaintiff or the motorcycle in any way. He testified that he had a clear view of the handlebars of the motorcycle and the plaintiff but he did not see the second defendant reach out and grab the plaintiff's arm or the handlebars testifying that he would have seen it if it had happened.

The first defendant then said that he spoke to the plaintiff saying "You're under arrest for assaulting me" but that prior to that point the plaintiff was repeating "you bastards" to both him and the second defendant. Next he says the second defendant then put his hand on the plaintiff's shoulder and said "You're under arrest Nick" or words to that effect.
The second defendant said that he followed the plaintiff out of the front door of the house:
"… and just stated to him that we only wanted his cooperation and if he cooperated it wouldn't take us long and we'd be out of there. He kept on repeating that if he wasn't under arrest he was leaving. I followed him into the carport where there was a BMW car which was facing forward out of the carport toward the road and a Harley Davidson motorbike also parked facing toward the front. He started up the bike and I said that as a police officer I was ordering him to stay while I asked him questions regarding our inquiry. [At this time] he was off the bike. He said 'I'm not a police officer any more' or he said he wasn't in the police force any more. I asked him if he was still a police officer. He said he wasn't being paid. I said 'You are still a police officer and as such I'm ordering you to stay while I ask you questions'. He said 'If I'm not under arrest, I'm leaving'. I said 'You know you're not under arrest'. [Then] he got on his motor bike, put on his helmet and got seated on the bike ready to leave. It was an open faced helmet. I can't recall if he was wearing any glasses or sunglasses. … [He] asked me to get out of the way. I said 'I'm not in your way' which I wasn't. I was probably level with the front of the front wheel of the bike and standing a couple of feet to his left hand side. Away from the car and the bike. And the bike I suppose would have been about a foot to 18 inches away from the side of the car. He edged the bike forward or it came forward slowly. Now whether he did something with the controls to make it move forward or whether he - because he had his feet on the ground, whether he moved it forward, I don't know, but he came forward a short distance, a foot or so, and said something. I didn't hear what he said. It was quite noisy with the motorbike going. At that point I picked up some movement to the side and turned around or looked to the side and it was - Sgt Weir was coming out of the house. ….. but when I turned to look, Sgt Weir was coming around the divide, if you like, between the carport and the entrance to the house. And was coming around that, walking in front of the car and then round towards us. [I was looking] at Sgt Weir. [Then] the motorbike accelerated and crashed into Sgt Weir. Well, I mean, I'm sort of looking to my left, to the front of the BMW, the motorbike would have just been over here and the bike was moved forward and he's moved forward, he's on the bike, obviously, and crashed into Sgt Weir who I was looking at. [I heard] the motor revved quicker. [Sgt Weir was] about a metre [from the motorbike when it moved forward]. He was about level with the front passenger side wheel of the BMW car. [Then] it all happened very, very quickly. I was concerned for Sgt Weir, obviously, and I grabbed the handlebar and Constable Tomkinson's arm and reefed him back towards me away from Sgt Weir and pulled the bike over. [Prior to the bike moving forward and striking Sgt Weir I had not made any contact with either the bike or Constable Tomkinson.] [Then] the bike went down. Sgt Weir was sort of half on the bonnet, if you like, of the car and sort of tried to get himself right and Constable Tomkinson was trying, I think, to prevent the bike going all the way down. I think he had his foot out and was calling out 'bastard' or 'bastards', I can't specifically remember, and he was quite upset. Sgt Weir [then] advised him that he was under arrest for assaulting him. I put my hand on Constable Tomkinson's shoulder and reiterated, 'Do you understand you're under arrest for assault?'. [Constable Tomkinson] put the bike upright and from memory he took the key out, turned it off, the ignition key, and Sgt Weir walked inside. Constable Tomkinson followed him inside and I followed him inside."
The second defendant then says that inside the house the plaintiff was either going to make a coffee or he put the kettle on, one or the other, but he certainly saw him put the kettle on and then take some cigarettes and he may have lit a cigarette, he made himself a cup of coffee and then he made a telephone call which, according to the second defendant's version of events was to his solicitor Mr Quigley's then partner Mr Coulson, in consequence of which a short time later Mr Quigley telephoned the plaintiff.
Before proceeding to make my findings on the evidence in relation to the circumstances of the plaintiff's arrest in the carport I should mention what followed. The detectives from the Internal Affairs unit completed their search of the plaintiff's house and found nothing save for a video which, from its title, was probably pornographic, and a photograph of, I understand, the plaintiff among others and someone in the photograph was holding a cannabis smoking implement commonly called a bong. As I apprehended from the evidence of the plaintiff in cross‑examination he was interviewed in respect of each of those matters and no charges were laid against him in respect of them. Apparently his housemate gave a statement to the police in connection with the video, from which I understand that he said that it was his. The police believed him and, additionally, obviously believed that the plaintiff had no prior knowledge of the video, did not know it was in the house and did not know anything of its contents and, further, that the plaintiff could not on the evidence of the photograph (which I've never seen) have been said to have been in possession of a smoking implement. [Apart from which the apparent seizure of these items would have been unlawful as being in excess of the power conferred by the search warrant: Crowley v Murphy (1981) 52 FLR 123 at 155.]
After a number of telephone calls passing between the plaintiff and Mr Quigley during which, on probably two occasions, Mr Quigley also spoke with each of the defendants, the plaintiff was taken to the Internal Affairs Unit offices in Belmont where, after a short time, he heard of a summons being issued to him rather than having him admitted to the lock-up which is the normal procedure upon arrest. Ultimately he was released from arrest and given a summons to appear in court on a charge of assaulting a public officer.
I find, on the balance of probabilities, that the plaintiff's version of events is more accurate than that of the defendants. I find that, while seated astride his motorcycle with the engine going the plaintiff was slowly releasing the clutch with his left hand permitting power to go to the drive wheel of the motorcycle allowing it to move forward slowly when the second defendant, irritated that his direct order to the plaintiff to remain for questioning even whilst not under arrest had not been obeyed, reached out and grabbed the plaintiff's arm to prevent him from leaving and in so doing took his arm off the clutch which in turn caused the motorcycle to lurch forward. At this moment the first defendant was approaching from the front of the BMW motor car and whilst he clearly had the plaintiff and the second defendant in view, those two were so engrossed in their confrontation that the plaintiff did not see the first defendant approaching, and the motorcycle in lurching forward hit the first defendant as he came out from the front of the BMW motor car into the front of the motor cycle. I find however that the first defendant was not struck in the manner he alleges. I find his version of these events to be quite improbable. If the motorcycle was accelerating in the manner suggested by each of the first and second defendants so that the entire weight of this very heavy machine was taken between the legs by the first defendant there would have been evidence of other injury but the only evidence of any injury to the first defendant was by way of a very minor bruise to his upper left arm and another minor bruise to the inside of his left forearm. I find that these were caused by the handlebar of the motorcycle. And it was the handlebar of the motorcycle coming forward as the motorcycle lurched that struck the first defendant and, as may be clearly envisaged with the assistance of the photographs, almost pinned the first defendant between the motorcycle and the BMW motor car until the second defendant succeeded in pulling the plaintiff on his motorcycle down to the ground.
Accordingly, it can be seen, I reject the second defendant's evidence that he did not pull the plaintiff from his motorcycle until after the motorcycle had struck the first defendant. I find that it was the second defendant's pulling of the plaintiff's left arm that caused the motorcycle to hit the first defendant and that the striking of the first defendant by the motorcycle was accidental in the sense that it was not intended either by the plaintiff or, obviously, by the second defendant. It was an unintended consequence of the actions of the second defendant. I should make it plain too, that I find it highly improbable that this plaintiff would have deliberately run his motorcycle at the first defendant. Whilst I appreciate that the discernment of credibility of witnesses from the demeanour of witnesses whilst giving evidence is a thoroughly difficult task for a judge sitting alone, and that that difficulty is probably compounded by the fact that the three parties in this action are all experienced police officers and, it may be inferred, experienced witnesses, I nevertheless formed the clear impression that the plaintiff was a controlled type, probably more controlled than the second defendant, more in charge of both himself and the situation than the second defendant. There would be no reason that I can discern, on the evidence, or in my assessment of the credit and character of the parties, why this plaintiff, an officer in the Western Australian Police Force under suspension without pay, his future in the balance, would do anything as foolhardy as deliberately driving his motorcycle into another policeman whilst yet another policeman stood and watched.
Additionally, it is truly remarkable that if, as each of the first and second defendants would have me believe, the plaintiff deliberately ran his motorcycle into the first defendant, why neither of them, having ample opportunity to do so, asked him why he did it. It must have struck them as being truly remarkable that a police officer, albeit a police officer under suspension, would try and run down another police officer. There was no evidence from either of the defendants that the plaintiff was angry, agitated or out of control. The only evidence of his anger was after he had been pulled from the machine. He was subsequently investigated in respect of some comparatively trifling matters of the video and the photograph but not asked about his motivation in relation to the most serious allegation of them all. I've already found that the defendants had ample opportunity to ask the plaintiff for his reasons. It was submitted to me that the opportunity for this inquiry was relatively limited because of the directions given by Mr Quigley to each of the defendants that they were not to question the plaintiff further, that he would refuse to answer their questions and the like. As is obvious that didn't deter investigation in relation to the alleged pornographic video and the photograph.
In relation to the arrest I find that the first defendant was certainly struck by the motorcycle, but not in the way he says. He too was obviously concerned to keep the plaintiff at the premises whilst the search continued as witness the evidence of the second defendant that the first defendant told the plaintiff he was not under arrest but that he wanted his cooperation in the conduct of the search, meaning he wanted him to stay until the search was complete. Because of the first defendant's deliberate and considered testimony that he had the second defendant clearly in view at all material times and that he did not see him touch the plaintiff or his motorcycle before the plaintiff accelerated into him deliberately, he alleging he had made eye contact with the plaintiff immediately beforehand, and being prepared to say that he was under no doubt but that the plaintiff's actions were deliberate, (all of which I reject) it follows from my previous findings that the first defendant used the occasion of him being accidentally struck by the motorcycle, as I have found, to arrest the plaintiff for an alleged assault and thereby prevent the plaintiff from leaving. This, I find, was his motive.
As regards the second defendant, in my opinion he saw the opportunity that the first defendant's actions had lent to the situation and decided independently to act in support of the first defendant by also telling the plaintiff that he was under arrest.
Had matters remained thus I think it more probable than not that each of the defendants would not have taken the matter any further, ultimately declining to proceed further. That situation was changed irreversibly however when the plaintiff made contact with his lawyer Mr Quigley and Mr Quigley spoke with each of the defendants over the telephone. The first defendant denies that he was threatened with legal action by Mr Quigley and says that the content of his only telephone conversation with Mr Quigley that day was restricted to discussion about the validity of the search warrant. The first defendant deposed that Mr Quigley wanted his assurance that he could see the search warrant which the first defendant says he told Mr Quigley he couldn't supply and that could only be made available upon application to Assistant Commissioner Mackaay. This does not accord with Mr Quigley's evidence that he told both of the defendants that if they had arrested the plaintiff then:
"… it was an invalid arrest, a false arrest, and what the consequence of that was that they were falsely imprisoning my client, and I know I explained that to them because I explained what the High Court had said in Williams' case which little section I have included in the legal advice in the Police Union diary. I explained that to them … that taking him into - the physical act of arrest and taking hold of him and physically restraining him would be an assault, trespass to the person; a false arrest and a false imprisonment. I explained Williams' case because I have argued that case several times before disciplinary tribunals of the Western Australian Police Department."
The second defendant for his part confirms that Mr Quigley threatened to sue him. He testified:
"He asked me to identify myself and I said that I was Inspector Collins and as soon as I had finished saying whatever I said he was quickly into the next question and he asked me if I was from the Internal Affairs Unit and I said yes, we were, and he said, 'And you have got a warrant there to search my client's premises for drugs?' and I says 'Yes, we have,' and he said 'You won't find any,' and I said, 'Well, we'll see about that,' and he said 'And my client was arrested while he was attempting to leave,' and I said, 'Yes' and he said, 'Right, got you - deprivation of liberty. Can I speak to my client again please?'"
Further to the telephone calls Mr Quigley wrote to the defendants and to the other members of the search team notifying them of the plaintiff's intention to proceed with an action for damages for trespass, assault and deprivation of liberty.
I am of the opinion that the defendants treated these threats seriously. I have further come to the view that the evidence as I have found it, on the balance of probabilities, is such that I may and do infer that the defendants and each of them concluded that they had no option but to proceed to charge the plaintiff with assaulting a public officer and, in effect, to prosecute that charge through to trial, which they did.
The plaintiff stood trial before a judge and jury in this Court on 17 October 1997 and was acquitted. Having regard to my view of the same facts but admittedly with a lower standard of proof the plaintiff clearly deserved to be acquitted.
These being the facts as I find them I now proceed to deal with the various causes of action pleaded by the plaintiff.

Trespass to the person (battery)

"The least touching of another in anger is a battery": Cole v Turner (1704) 87 ER 907. I have found that the second defendant deliberately and without lawful excuse pulled the plaintiff's arm from his motorcycle and pulled the motorcycle to the ground in order to prevent his departure from his residence. This is a clear act of battery for which the second defendant is liable in damages. In Plenty v Dillon (1991) 171 CLR 635 at 655 Justices Gaudron and McHugh said:
"If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person's rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages."
Plenty v Dillon was a case where two police officers had entered the appellant's property, a small farm near Port Pirie in South Australia, in order to attempt to effect service of a summons on their daughter then aged 14 years to require her attendance before a juvenile court. The appellant father told the police officers they weren't welcome and forbad them entry to his land but they entered in spite of his objections. In finding that the police do not have a right of entry to effect service of a summons (being careful to make the distinction between the right of entry to effect an arrest and things of this nature) the majority (Mason CJ, Brennan and Toohey JJ) said nothing on the issue of damages because it hadn't been argued before the court and remitted the question to the Full Court of the Supreme Court of South Australia. Whilst Justices Gaudron and McHugh also found the entry to constitute a trespass to the appellant's land and joined with the orders proposed by the majority they added the dicta quoted above in respect of damages. With great respect to their Honours I think they have overstated the position a little.
Absent any physical injury having been caused to the plaintiff and taking all of the circumstances of the battery into account I think an appropriate award of damages under this head is $5,000.00 and I find for the plaintiff in that sum, against the second defendant.

Trespass to goods

As far as I can discern, it is still open whether an action for damages for trespass to chattels lies without proof of actual damage. Assuming without deciding that the cause of action is made good by proof of the intentional interference with a chattel which causes damage then the cause of action has been made good in this case. The second defendant, as I have found, deliberately pulled the plaintiff's motorcycle to the ground without lawful justification or excuse thereby occasioning damage to the motorcycle the quantum of which was agreed between the parties before trial in the sum of $936.23 and there will be an award of damages in favour of the plaintiff against the second defendant in that sum.

False imprisonment

Although it is common to speak of 'wrongful arrest' there is no separate tort of this name. The arrest is the beginning of the period of false imprisonment. In this case it lasted from the time of the plaintiff's arrest by the first defendant until he was released from custody at the office of the Internal Affairs Unit in Belmont, something a bit over an hour later, perhaps an hour and a quarter, perhaps an hour and a half but no longer.

The words of the first defendant were enough to constitute the arrest: Greenwood v Ryan (1846) 1 Legge 275 at 268. In the case of the second defendant of course there was the physical act of arrest by the placing of his hand on the plaintiff's shoulder. Whilst the plaintiff submitted to his arrest it is quite clear that his arrest and detention was against his will. His submission to each of the defendants was quite involuntary in the sense explained in Myer Stores Limited v Soo [1991] 2 VR 597. See also Williams v Milotin (1957) 97 CLR 465 and Watson v Marshall (1971) 124 CLR 621.
By reason of my findings of fact the plaintiff has made good his cause of action for false imprisonment. The plaintiff was arrested and detained in the knowledge of each of the defendants that the plaintiff had committed no offence for which he was liable to arrest, for an improper motive, namely to prevent his departure from the premises. Each of the defendants is equally liable and the damages must be substantial. I award the plaintiff the sum of $10,000.00 and whilst I would apportion their responsibility equally, their liability I find is joint and several because they acted to effect what was a purpose common to them both, namely the prevention of the plaintiff's departure from his residence.

Aggravated and exemplary damages - false imprisonment

Whilst the plaintiff claims relief for aggravated and exemplary damages in a manner in which the statement of claim suggests that that claim is made in respect of all causes of action, there is only one specific plea to support the general claim namely that in para 31 of the statement of claim which only relates to the wrongful arrest and, it follows, the false imprisonment.
It is said that "aggravated damages are given for conduct which shocks the plaintiff: exemplary damages for conduct which shocks the jury." Salmond and Heuston Law of Torts 20th ed 1992 at p592. Both can be awarded: Canterbury Club v Rogers (1993) A Tort Rep 81-246 at 62,555. Certainly, exemplary damages are available in the circumstances of this case: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 140, 143 per Menzies J.
The object of exemplary damages is to punish and deter and the High Court, finding that exemplary damages were available even in cases where a third party insurer was more likely to pay than the defendant, said that:
"Moreover, whilst the smart or sting will obviously not be the same if the defendant does not have to pay an award of exemplary damages, it does serve to mark the court's condemnation of the defendant's behaviour and its effect is not entirely to be discounted by the existence of compulsory insurance." Lamb v Cotogno (1987) 164 CLR 1.
I accept that the plaintiff was outraged by the conduct of the defendants. The court is very concerned about it. In the circumstances I think that an award of $2500.00 for aggravated damages and $2500.00 for exemplary damages, total $5000.00, is warranted.

Misfeasance in a public office

This comparatively rare tort was fully explained by the High Court recently in Northern Territory v Mengel (1995) 185 CLR 307. The majority of the Court found that the tort of misfeasance in a public office is committed where damage is suffered as the result of an act done by a public officer with the intention of causing harm to the plaintiff or which he knows is or ought to know is beyond power and which involves a foreseeable risk of harm. The majority disavowed the contention accepted by Justices Brennan and Deane that this cause of action could be perfected if instead of proving knowledge in the defendant that the act complained of was beyond power, it was shown that such a defendant acted with reckless indifference as to the existence of the power, and for this reason I refused an application to amend the statement of claim which would have brought in a plea of reckless indifference.
On the facts as I have found them each of the defendants clearly committed the tort of misfeasance in a public office by arresting the plaintiff when they knew that he had committed no arrestable offence. Whilst an arrest may be effected by any member of the public pursuant to the provisions of s564 of the Criminal Code, these defendants were not acting as members of the public but as officers of the Western Australian Police Force in the purported execution of their duty, as the purported ground for the plaintiff's wrongful arrest makes perfectly plain.
However, I am of the view that whilst this cause of action has been perfected, the plaintiff suffering undoubted harm in consequence thereof by curtailment of his liberty, the prevention of him being able to make an important business engagement and the impact upon his personal life, he has sustained no damage additional to that which he has sustained by his false imprisonment and, as I shall shortly come to, his malicious prosecution, for the elements in each are the same and accordingly I decline to make any additional award of damages under this head of claim.

Malicious prosecution

In Wan v Sweetman (1998) 19 WAR 94, Parker J accepted the dicta of the Full Court of the Supreme Court of Victoria in Little v Law Institute of Victoria(No 3) [1990] VR 257 at 262 that the elements that must be established to sustain the cause of action of malicious prosecution are as follows:
1.the proceedings complained of must have been instituted or continued by the defendants;
2.the defendants instituted or continued the proceedings maliciously;
3.the defendants, in instituting or continuing the proceedings, acted without reasonable or probable cause;
4.the proceedings instituted by the defendants were terminated in the plaintiff's favour; and
5.the plaintiff suffered damage referable to one or more of the three heads of damage comprising damage to the person, property or reputation.
The second defendant swore out a complaint on 15 January 1997 that the plaintiff had assaulted the first defendant, a public officer who was performing a function of his office, contrary to s318 of the Criminal Code. The first defendant prepared the Crown brief for the prosecution of the plaintiff including preparation of the statement of material facts. Both defendants gave evidence against the plaintiff in his trial on indictment of the offence of assaulting the first defendant, a public officer then performing a function of his office, contrary to the provisions of s318 of the Criminal Code. I think therefore notwithstanding that prosecutions are brought in the name of the Sovereign by the Director of Public Prosecutions, who exercises an independent prosecutorial discretion whether to proceed or not proceed against any given accused, it can be fairly said that the criminal proceedings against the plaintiff were instituted or continued by the defendants.
With regard to the second limb of the tort, malice does not mean only the intention to cause harm, or spite. As the authorities canvassed by Parker J in Wan v Sweetman show, malice is constituted by some wrong motive, for some motive other than a desire to bring justice to a man whom the defendants honestly believe to be guilty of the offence charged. This is precisely this case. As I have already found, the motives of the defendants were improper from the beginning. The prosecution was tainted from its inception with the wrongful arrest and false imprisonment of the plaintiff. It doesn't matter that the improper motive changed from the time of the arrest up to the time when each of the officers, at the latest, received Mr Quigley's letter, from being one of simply seeking to detain the plaintiff whilst the search was complete to one of, having painted themselves in a corner by the battery, arrest and false imprisonment, felt they had no option but to continue the prosecution, for to have abandoned it would have been a clear admission of wrongdoing.
It follows that the third element has been made good. The fourth has too, the plaintiff having been acquitted. And I have no difficulty at all finding that there has been significant damage to the reputation of the plaintiff. A police officer, albeit a police officer under suspension, was charged with assault on a serving police officer in the execution of his duty which caused his work colleagues to shun him. There would have been a number of reasons for this. The esprit de corps of a body such as a police force would suggest that where a member is suspended for and stands trial in respect of accusations made by someone outside the police force, the accused policeman is given the benefit of the doubt by his colleagues or, put another way, his colleagues will be more than prepared to regard him as innocent until proven guilty. Where a charge however is laid for assaulting a police officer and a member of the Internal Affairs Unit at that, as the plaintiff found, and I accept, former friends and colleagues anxious for their own positions would be fearful of extending the hand of friendship by associating with the plaintiff whilst under investigation by the Internal Affairs Unit to which both of these defendants belonged. As Exhibit P7 discloses, the plaintiff's arrest was prominently reported in "The West Australian".
This tort is by far the most serious of those committed by the defendants against the plaintiff. It did him untold damage and rendered him liable to conviction, the possibility of an appeal to have to clear his name and the distress which standing trial before a judge and jury must undoubtedly cause the innocent. It warrants a high award of damages. Higher I think than in a defamation case because in a case of malicious prosecution there is not just the harm to reputation, there is the exposure to the criminal trial process and the putting up of the plaintiff in a dock, with all it entails. Under this head of damage I award the plaintiff $30,000.00
Hence my total award is as follows:
Battery (awarded against the second defendant only) $5,000.00
Trespass to goods (awarded against the second
defendant only)   $936.23
False imprisonment (against both defendants)           $10,000.00
Aggravated and exemplary damages
for false imprisonment (against both defendants)        $5,000.00
Malicious prosecution (against both defendants)        $30,000.00
$50,936.23
There was a claim for interest, however no evidence was led to support it, nor any argument advanced as to why I should or should not award it. I decline to do so.
Finally, may I say that it is a great pity that no party applied to the court pursuant to the provisions of s42 of the Supreme Court Act 1935 (as amended) for an order that this action be tried before a jury. This is no doubt because, save in the case of actions for defamation, the use of juries in civil trials in Western Australia has long fallen out of favour. It seems to me that a jury of six is in a much better position than a judge sitting alone to quell controversies such as those which have arisen in this case, particularly when a jury could be called for as of right in an action for malicious prosecution.
I will hear the parties as to costs.