Ussher v State of New South Wales - [2017] NSWDC 189

District Court

New South Wales

Medium Neutral Citation: Ussher v State of New South Wales [2017] NSWDC 189
Hearing dates: 7, 8, 9 and 13 June 2017
Date of orders: 25 July 2017
Decision date: 25 July 2017
Jurisdiction: Civil
Before: Wilson SC DCJ
Decision:
1 Verdict for the defendant;
2 Plaintiff to pay the defendant’s costs;
3 Liberty to apply to vary the order as to costs, if necessary;
4 Exhibits to be returned.

Catchwords:
TORT – intentional torts – lawfulness of search – lawfulness of arrest – false imprisonment – assault – battery
DAMAGES – compensatory damages – aggravated damages – exemplary damages
Legislation Cited: Civil Liability Act 2002
Drug Misuse and Trafficking Act 1985
Inclosed Lands Protection Act 1901
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Law Reform (Vicarious Liability) Act 1983
Police Act 1990
Summary Offences Act 1988
Cases Cited: Croucher v Cachia [2016] NSWCA 132
George v Rockett [1990] HCA 26; 170 CLR 104
Hussien v Chong Fook Kam [1970] AC 942 at 948
NSW v Abed [2014] NSWCA 419
NSW v Beck [2013] NSWCA 437
NSW v Riley [2003] NSWCA 208
R v Rondo [2001] NSWCCA 540
Woodley v Boyd [2001] NSWCA 35
Category: Principal judgment
Parties: Daniel Ussher v State of New South Wales
Representation:
Counsel:
Mr P Batley (Plaintiff)
Mr N Newton (Defendant)
Solicitors:
Legal Aid (Plaintiff)
McCabes (Defendant)

File Number(s): 2016/211820

Judgment

Introduction

The Dispute
The Plaintiff’s Summary of Issues
Defendant’s Summary of Issues
The Plaintiff – Generally
The Evidence
The Plaintiff
Constable Tristan Corbridge
Senior Constable Bunting
Senior Constable Monro
Senior Constable Hayley Bennett

The Documentary Evidence

Analyis of the Evidence and Factual Findings

General Legal Principles

The Lawfulness of the Search

The Lawfulness of the Arrest

Use of Force……………………………………………………………………………………..…………… 46

Inadequacy of Documentary Records

Self Defence

Disposition

Damages

ORDERS

Judgment

INtroduction

The plaintiff claims damages against the State of New South Wales in respect of events which took place around midnight on the night of 12/13 December 2013.
The defendant is the proper party to the proceedings by reason of s8 of the Law Reform (Vicarious Liability) Act 1983 NSW. The Crown is vicariously liable in respect of a tort committed by a person in the service of the Crown and in the performance or purported performance including an independent function where the performance is in the course of or incidental to the person’s service within the Crown.
The events occurred on Coronation Drive, near Orange, in regional New South Wales.
The plaintiff came to the attention of the police in the manner which will be described in the evidence below resulting in police searching and then arresting the plaintiff.
The plaintiff was taken to Orange Police Station before being released to ambulance officers and conveyed by ambulance to Orange Base Hospital.
The plaintiff’s case is based upon the allegation that the search and subsequent arrest were unlawful entitling him to compensatory (including aggravated) damages and exemplary damages for unlawful imprisonment, assault and/or battery and/or trespass to the person.

The Dispute

There are a number of factual matters which are disputed between the parties and which will be determined below.
The more substantive dispute relates to the exercise of the police powers of search and arrest and whether that was lawful pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”).
More particularly, whether the search undertaken by the police officers was authorised pursuant to s21 of LEPRA and whether it was necessary to arrest the plaintiff having regard to s93 of LEPRA.

The Plaintiff’s Summary of Issues

Pursuant to the Standard Directions for Hearing, the plaintiff provided a Summary of Issues (MFI 1). They stated:

whether the stopping and searching of the plaintiff and his belongings was lawful having regard to objective facts and the knowledge and belief of the police officer concerned;

whether the arrest of the plaintiff was lawful having regard to objective facts and the knowledge and belief of the police officer concerned;

whether the detention of the plaintiff was lawful;

whether physical contact with the plaintiff by police officers was lawful;

whether conduct of police officers caused the plaintiff to have an apprehension of unlawful physical contact;

whether and to what extent s52 of the Civil Liability Act 2002 applies;

whether the plaintiff is entitled to damages, including aggravated damages and exemplary damages;

whether, and to what extent, s53 of the Civil Liability Act 2002 limits the damages that might otherwise be payable to the plaintiff;

the amount of damages.

Defendant’s Summary of Issues

The defendant’s Summary of Issues (MFI 3) was in the following terms:

there is likely to be a factual dispute between the plaintiff and police witnesses concerning the circumstances of the plaintiff’s search and arrest in the early hours of 12/13 December 2013 near 228 Ploughmans Lane Orange, including:-

a factual dispute concerning what the plaintiff was doing at or near 228 Ploughmans Lane;

a factual dispute concerning how the police behaved and how the plaintiff behaved, including whether the plaintiff lunged at Senior Constable Bunting;

a factual dispute concerning what the police said to the plaintiff and what the plaintiff said to the police;

whether the police search of the plaintiff was authorised pursuant to s21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) (as in force on 13 December 2013);

whether the police suspected on reasonable grounds that the plaintiff had committed an offence such that their power to arrest the plaintiff under s99(2) of LEPRA was enlivened;

whether the police suspected on reasonable grounds that it was necessary to arrest the plaintiff for one of the purposes in s93(3) of LEPRA;

whether the police complied with s201 of LEPRA in their exercise of the power of search and arrest;

whether the police officers’ use of force while undertaking their search of the plaintiff and subsequent arrest was lawful pursuant to s230 of LEPRA;

whether the police officers’ use of force while undertaking their search of the plaintiff and subsequent arrest was lawfully justified pursuant to s52 of the Civil Liability Act 2002;

if the plaintiff succeeds on liability:-

whether the plaintiff’s entitlement to damages is limited by s53 of the Civil Liability Act 2002;

the amount of the plaintiff’s damages; and/or

whether the plaintiff is entitled to aggravated and exemplary damages.

The Plaintiff – Generally

The plaintiff relied on a Chronology (Exhibit A). Other than the plaintiff’s birth (July 1976) the Chronology is limited to events immediately preceding and following the incident.
At the time of the incident the plaintiff was homeless. He was in Orange with the intention of commencing fruit picking work at Caernarvon Cherry Pty Limited located at 448 Canobolas Road at Canobolas, just outside Orange. He was walking from Orange to Canobolas when the incident occurred. He was carrying bags containing his belongings.
The plaintiff suffered from a psychiatric disorder and took Anafranil tablets on a daily basis. They were taken to treat depression and anxiety.
Little else is known about the plaintiff as most of the evidence concerned the incident itself.

The Evidence

The Plaintiff

When the plaintiff came to give evidence in Court, he was residing at a hostel in Sydney.
He said that in December 2013, he found a job through the website Gumtree picking fruit in Orange. He travelled from Forbes to Orange by hitch-hiking, arriving on the evening of 12 December 2013.
Upon arriving in Orange, the plaintiff went to Kmart and purchased some camping equipment before setting out for the orchard. He was due to start work at 8.30 the next morning.
After obtaining a Google map from the library in Orange, the plaintiff then commenced walking. He could not afford a taxi. He was told by somebody that he passed en route that he should just keep walking until he gets to the sign which says “The Lake” and then turn left.
He walked along Coronation Drive in a westerly direction. In the vicinity of its intersection with Ploughmans Lane, Coronation Drive changes in name to Cargo Road. Instead of turning left into Ploughmans Lane as seems to be the suggested correct route, the plaintiff continued walking along Cargo Road.
In Court, the plaintiff relied upon a Google map printed in 2017 (Exhibit B, page 10). From that map, the township of Orange can be seen on the right hand side. A pin point indicates the intersection of Coronation Drive/Cargo Road with Ploughmans Lane and on the bottom of the map towards the left, appears the word “Caernarvon”, the location of the orchard.
The plaintiff said that he continued walking along Cargo Road and then realised that he must have missed the left hand turn at Ploughmans Lane.
Counsel for the plaintiff, drew a sketch plan which became Exhibit C. It attempted to depict the intersection of Cargo Road and Ploughmans Lane. By reference to Exhibit C, the plaintiff identified the following features:

his path of travel when first passing Ploughmans Lane is indicated with a red arrow labelled (1);

with a red arrow labelled (2), the plaintiff then indicated his direction of travel upon realising that he had been walking along Cargo Road in the wrong direction;

upon reaching the intersection, the plaintiff crossed the road and placed his bag on the corner of Ploughmans Lane and Cargo Road. In Exhibit C, the letter “B” in a circle indicates the position where the plaintiff placed his bags;

the letters “SL” in a circle indicates the location of a street light on the eastern side of Ploughmans Lane outside the property known as “228 Ploughmans Lane, Orange”;

reference was then made to a tree adjacent to the street light. Despite being asked to mark its location with the letter “T”, the plaintiff drew a tree as if looking at it from above;

the plaintiff was then asked to indicate the location of a fence referred to in his evidence. That is depicted in Exhibit C as two lines joining at greater than right angles with the letter “F” in a circle, adjacent to it;

the plaintiff told the Court that he crossed Ploughmans Lane and indicated his path by a dotted red line on Exhibit C;

he then placed a red dot in the location where he said he stood under the street light;

the plaintiff said that he saw a police car coming from town on Cargo Road which turned and stopped in Ploughmans Lane. The position of the police car was indicated by a red rectangular box adjacent to the letters “PC”.

The plaintiff said that he stopped in that location in order to urinate. That is why he crossed the road. He said that he was standing slightly north of the street light when the police car came into Ploughmans Lane. He was intending to urinate under the street light. On Exhibit C, using a blue pen, he drew an arrow indicating the approach of the police vehicle from Coronation Drive into Ploughmans Lane.
According to the plaintiff, the police car came to a stop and a female officer sitting in the front passenger seat called out “am I alright” or presumably, “are you alright”. The plaintiff recalled that he had to walk “quite reasonably far into the centre of the road” to reach the police car. The plaintiff responded “yes I was looking for somewhere to go to the toilet”. There was then some discussion about the orchard to which the plaintiff was walking.
The plaintiff then asked the police officer “is there a problem?” To which the police officer apparently responded “this is a high crime area”. The plaintiff said that the police car then proceeded slightly north and he walked behind the vehicle. He was walking to his bags on the other side of the road when he noticed that the police vehicle had turned around and it had parked in the same orientation but further up the road, about two and a half car lengths from the previous direction and more on the right hand side of Ploughmans Lane.
The plaintiff was asked to mark Exhibit C indicating the movement of the police vehicle. In what can only be described as a bizarre manoeuvre, the plaintiff had the police vehicle initially in the centre of Ploughmans Lane before moving forward and to its left and then turning so as to travel north on the incorrect side of the roadway before again turning to travel south again on the incorrect side of the roadway and stopping some distance up Ploughmans Lane, having completed a 360 degree turn.
For present purposes, it is sufficient to note that this movement is completely at odds with the account provided by the police officers and seemingly at odds with common sense.
The plaintiff continued that after the police vehicle came to a rest further south along Ploughmans Road on the incorrect side of the roadway, he walked up the road to approach the vehicle. He said he was walking on the right hand side of the vehicle, on the same side as his bags.
The plaintiff then recalled that a male police officer jumped out of the car quickly, exiting the vehicle via the driver’s door. The plaintiff said that the male police officer shouted to the plaintiff loudly, questioning his nationality and identity. The plaintiff said that the police officer was walking towards him, quite aggressively accusing him of not being who he said he was.
The plaintiff told the Court that his response to that was to inform the police officer that there is a Police Code of Conduct requiring the police to be respectful to the public. Quite out of context, the plaintiff then asked the police officer whether he was depriving the plaintiff of his liberty which the police officer denied.
The plaintiff then said that he turned his back and walked away but the police officer “immediately grabbed” him. The male police officer pushed the plaintiff up against the back of the police vehicle causing his body to be outstretched and placed his thumb on his back. This was denied by the officer.
The plaintiff’s description of what occurred was, it must be said, quite bizarre and not at all easy to accept.
The plaintiff described how he dropped his hands on a number of occasions only to be told by the police to put his hands back up. He described how his shorts were falling, exposing his underwear. He said that the police officer “fondled around my buttocks area, not my genitals but around my buttocks area”.
He then turned around and saw that the other officers “were going through his bags”.
He said that a second police car arrived whilst he was being searched. Again, by reference to Exhibit C, he indicated with a blue rectangle, the position of the second police vehicle.
On Exhibit C, the plaintiff then indicated where his bag was placed on the roadway (a blue coloured square) and the location of the two female police officers (blue coloured circles) indicating the position where his bag was being searched by the officers.
The plaintiff was asked what he did after seeing the two women search his bag. He responded:

In between the officer said put my hands up, drop them down and as I was – that’s happening, my pants are being pulled down, my items from my bag and also from my person is being chucked in at random. I fled, I mean, I was fearful – it was just so out of hand and seemed so outrageous that it escalated to such a point where firstly the officer randomly was very aggressive at me, then violent towards me, like, hurting me and then pulling my pants down and I really feared for my safety, how far is this going to go? Am I going to get further attacked. I was never told I was under arrest, actually, I was told I was not.
[T32.12-20].

The plaintiff told the Court that he had his hands up and that he started to walk to the left hand side, towards the street lamp to “get away from … the situation”. He said that he was then thrown to the ground in a violent move, like a rugby tackle. He was then hand-cuffed before being placed into the rear of the police vehicle.
The plaintiff’s evidence-in-chief continued in which he explained how he was taken to Orange Police Station before being conveyed to Orange Base Hospital. He remained there for about an hour before being discharged.
Even before cross-examination, I considered the plaintiff’s account of the events of that evening bizarre and his demeanour as a witness erratic.
I do not intend to set out in any great detail the cross-examination of the plaintiff by counsel for the defendant. The approach taken was essentially to put the accounts from the various police officers involved to the plaintiff. It is sufficient to observe that the plaintiff generally disagreed with the propositions put to him in cross-examination and presented in a fairly evasive, if not argumentative, manner.

Constable Tristan Corbridge

Constable Corbridge was a general duties officer who had been stationed at Orange Police Station for about 12 months at the time of the incident.
He explained Tactical Options Model to the Court. In particular, he described what was referred to as weaponless control whereby a police officer engages with a person without utilising one of the forms of control contained in his or her utility belt such as the batten, spray or hand gun. He explained that the first option in dealing with the public was communication. If that fails then there is a choice as to whether the person be detained and negotiated with or whether weaponless control be engaged. One technique involved in weaponless control is an arm bar take down. It is approved by the New South Wales Police and was described by Constable Corbridge at [T99].
Constable Corbridge gave evidence about his training, first, as to the exercise of his power of search. He was aware of the requirements of s201 of LEPRA and he had developed a standard practice to ensure compliance.
He received similar training in relation to the exercise of the powers of arrest and what is to be said to a person at the time of exercising that power.
Constable Corbridge also gave evidence about his exposure to the work in the Orange area. He had been provided with information by superior officers at Orange about the prevalence of break, enter and steal in the Orange area. He received daily updates on that topic.
As to the relevant events, Constable Corbridge told the Court that he had a recollection of his dealings with the plaintiff. He had started work at 6pm on 12 December 2013 and was working with Senior Constable Bunting. They were both uniformed officers, working on patrol out of the Police Station. They were assigned a police caged vehicle described as being a Toyota Hilux dual cab and on the back a section where the tray would exist there, is a big plastic pre-formed pod with a door on each side.
Senior Constable Bunting was the senior of the two officers. During the course of the shift in question, they had attended a domestic violence incident on Shiralee Road which is on the western periphery of town, out towards Cargo. To get to that location, it was necessary to travel along the Cargo Road, passing Ploughmans Lane. To get to the location of the domestic dispute would take at least 20 minutes from Orange Police Station.
Constable Corbridge gave evidence about his sightings of the plaintiff. When travelling out towards Davys Plain Road to do a follow-up to the domestic dispute, he saw the plaintiff on the south-western corner of Cargo Road and Ploughmans Lane.
Constable Corbridge marked a map indicating the location where he first saw the plaintiff (Exhibit 3).
At the time Constable Corbridge first saw the plaintiff, the Constable was travelling as a passenger in the police vehicle which was being driven by Senior Constable Bunting. The plaintiff was standing on the corner next to a number of bags. Constable Corbridge thought that it was an odd place for someone to be at that time of night. He said it was unusual to see people in that area of Orange at that time of night. He did not consider stopping at that time, however, as they were on their way to follow-up the domestic which was the priority.

Constable Corbridge estimated that they were at Cargo for about 20 minutes to half an hour before commencing their return to Orange. That route took them past the same intersection of Cargo Road and Ploughmans Lane.
During the course of that trip, Constable Corbridge saw the bags beside which the plaintiff had been standing still on the kerb side. Senior Constable Bunting, the driver, turned the police vehicle into Ploughmans Lane and parked on the western kerb facing a southerly direction.
Both of the police officers got out of the vehicle. Constable Corbridge said that he could not see anyone around. He was looking at the bags and thought the situation was odd. He then noticed the plaintiff walk out from behind a tree.
Constable Corbridge was standing at the rear of the police vehicle on the road when he saw the plaintiff walk out from the tree in the front yard of 228 Ploughmans Lane. When he first saw him, the plaintiff was adjusting his pants.
Constable Corbridge said that he had suspicions about where the plaintiff had come from. He said that he had come from down the side of 228 Ploughmans Lane, the residential house. The plaintiff was inside the boundary of that residential property in contravention of s4 of the Inclosed Lands Protection Act 1901. I accept that evidence.
When asked whether he formed an opinion as to what the plaintiff had been doing shortly prior to being observed, Constable Corbridge said that he could have been doing a break and enter or something.
In my opinion, suspicion was warranted in the circumstances.
When asked what he had been doing, the plaintiff stated that he had just had a pee. Both Constable Corbridge and Senior Constable Bunting asked the plaintiff a number of questions.
Some questions were asked about who the plaintiff was and what he was doing. The effect of his answers were that he said he was having a pee and that he was trying to make his way out to a property to do some fruit picking.
Constable Corbridge then asked the plaintiff his name to which the plaintiff responded “I don’t have to tell you that”.
This initial conversation with the plaintiff in which the police tried to ascertain his identity and reason for being in that location occupied several minutes. In response to the questions, the plaintiff responded “I’ve done nothing wrong” and “I have civil rights”. Constable Corbridge told the Court that the plaintiff was very agitated and very cagey in his responses. When asked what he meant by the plaintiff being agitated, Constable Corbridge replied:

He didn’t speak forcibly. It was very – you could tell there was an infliction in his voice, had a lot of body movements, like arm gestures and very forceful in his answers.
[T116.30].

Constable Corbridge was asked what he thought the plaintiff may have been doing to which he replied “committing property offences”. In particular, “break, enter and steal”. He thought that the plaintiff may have attempted to break, enter and steal at the 228 Ploughmans Lane property.
Asked for the matters which informed that suspicion, Constable Corbridge stated:

Based on my visual observation of him trespassing, based on the intelligence, the time and the fact that he had been loitering in that area for at least an hour.
[T118.36].

The police intelligence which Constable Corbridge was referring to was the police intelligence concerning the frequency of break and enters in the area.
He was also concerned about the period of time which the plaintiff had been in the same location stating, “there’s very little traffic and any fruit picking farm would be quite a distance away”. [T119.20].
Constable Corbridge also referred to the fact that his impression was that the plaintiff was not from Australia. When asked to provide identification, the plaintiff’s response was that he didn’t have to give them anything.
Constable Corbridge said that he performed a search of the plaintiff. Before doing so, he stated:

My name is Constable Corbridge from – I’m from Orange Police Station. I am now going to submit you to a search for anything stolen or unlawfully obtained.
[T120.10].

Constable Corbridge was asked what he had in mind as the reasons for the decision to search at the time the decision was made. He said “that he may be in possession of stolen property”. The reason for that belief was given as follows:

Given, my explanation before, watching him come from trespassing at 228 Ploughmans Lane, the prevalence of break and enters, his verbal interaction with us.
[T120.20].

According to Constable Corbridge, the plaintiff had not been co-operative in answering the questions asked of him by the police officers. The plaintiff “kept talking about his civil liberties and how we had no right to stop and speak to him and search him”.
Having told the plaintiff that he was going to search him and the reasons for doing so, Constable Corbridge directed the plaintiff to the back of the police vehicle and asked him to stand and face the rear of the truck. He asked the plaintiff to place his hands on the pod and the plaintiff initially did not do so, taking some persuasion to put his hands on the vehicle. Constable Corbridge had to explain that this was standard police procedure.
Constable Corbridge then conducted what he described as “an ordinary search” searching the exterior of the plaintiff’s clothing including his pockets. The plaintiff kept turning around and pulling his arms down from the vehicle. Constable Corbridge then caused the plaintiff’s hands to be crossed and restrained with one hand so that the Constable could use his other hand to complete the search. The only thing found in searching the plaintiff was a bar of soap.
At the time Constable Corbridge was conducting the search, Senior Constable Bunting was to his right hand side at the kerb side with the plaintiff’s bags. She was in a crouched position going through the bags with her head at about his waist height.
Constable Hayley Bennett arrived.
Constable Corbridge described the search undertaken by Senior Constable Bunting and said that she had found something like a garbage bag that was tightly wrapped up about the size of a police notebook. Senior Constable Bunting began to unwrap that package. When the plaintiff saw her doing that, he yelled out “no” and, according to Constable Corbridge, “he’s turned and lunged in the direction of Senior Constable Bunting”. He had broken free of being held by Constable Corbridge.
Constable Corbridge estimated that Senior Constable Bunting was about a metre away from Constable Corbridge and the plaintiff. Constable Corbridge described the following:

He’s twisted to face Senior Constable Bunting, broken – his arms have – he’s pulled his arms down and reached out in the direction of Senior Constable Bunting that was crouching down on the ground.
[T123.49].

When asked whether he had any concerns about what was occurring, Constable Corbridge stated that he “feared Senior Constable Bunting was going to be assaulted” and in response, Constable Corbridge performed an arm bar take down, a technique that he had been trained in at the Goulburn Academy and about which he had previously given evidence. After a short struggle, Constable Corbridge was able to hand cuff the plaintiff from behind.
After composing himself, Constable Corbridge stated “my name is Constable Corbridge. I am from Orange Police Station. You’re now under arrest … for peeing and trespass, to start with”.
He explained that peeing was offensive behaviour (as it may be under s4(1) of the Summary Offences Act) and when he referred to trespass he was referring to 228 Ploughmans Lane. For abundant clarity, Constable Corbridge stated that at the time he arrested the plaintiff, he had in mind that the plaintiff had committed the offences of offensive behaviour and trespass. The offensive behaviour was urinating within view of a public place and trespass was being on the property of 228 Ploughmans Lane without the permission of the owners.
The plaintiff was then placed into the rear section of the police vehicle.
Constable Corbridge considered that it was necessary to arrest the plaintiff in order to ensure his appearance before the Court as they were not positive about his identification of who he was or where he lived.
The plaintiff was then conveyed by the police vehicle back to Orange Police Station.
Constable Corbridge was not involved in the decision as to whether to release the plaintiff to hospital or to charge him. That was a matter for Senior Constable Bunting and the Custody Manager at the Police Station.
Constable Corbridge was then cross-examined about his failure to record the event in his notebook as soon as practical. When asked whether he thought the involvement involving Mr Ussher was of a serious or contentious nature, Constable Corbridge said that he did not.
In cross-examination, Constable Corbridge was asked questions about aspects of his evidence which were contradicted by the plaintiff. By and large, Constable Corbridge maintained his evidence-in-chief. As might be expected, there were some details of the search and other events at the station of which Constable Corbridge had little or no recollection but none of those matters are of any significance to questions before the Court.
In cross-examination, Constable Corbridge made appropriate concessions. For example, when it was put to him that the plaintiff stated that “my name is Daniel Ussher and I’m from New Zealand” Constable Corbridge said that he may well have said that. There were other examples of such concessions being made by Constable Corbridge which created an impression that he was doing his best to assist the Court.
Notwithstanding the concessions which he did make, Constable Corbridge was certain that he was part way through the search of the plaintiff when the plaintiff lunged in the direction of Senior Constable Bunting.
Overall, I considered Constable Corbridge to be an honest witness doing his best to recall with precision, events relating to an incident which, in the scheme of the matters which he confronts on a daily basis, might be considered trivial.

Senior Constable Bunting

As at the time of this incident, Senior Constable Bunting had been a police officer for about 13 years. She also gave evidence about the New South Wales Police Force Tactical Options Model. She spoke of weaponless control in much the same way as it was described by Constable Corbridge in accordance with the training which they both obtained through the Police Service.
Senior Constable Bunting said that there had been an increase in the rates of break and enters in the Orange area and that she was made aware of that fact through her work and briefings by the supervisor.
She confirmed that she was working the night shift on 12 December 2013 and was partnered with Constable Corbridge. They were engaged in general duties as the car crew. Senior Constable Bunting was the driver of the vehicle that evening.
Senior Constable Bunting told the Court about the domestic dispute that occurred outside of Orange and that she first saw the plaintiff when she was driving out to the domestic lock-up.
When Senior Constable Bunting first saw the plaintiff, he was on the left hand side of Cargo Road just standing there. She wondered what he was doing there at that time of night as it was unusual to see people standing in the middle of the night or towards the middle of the night in that area. She described it as a quiet area.
Upon returning from the domestic along the Cargo Road, she saw the plaintiff again. He was still standing on the right hand side at the paddock as they were driving into town. They drove past Ploughmans Lane before turning around and coming back to drive into Ploughmans Lane to “see where the gentleman had gone”. Senior Constable Bunting said that the plaintiff was still standing there an hour later and to me “that’s a bit suss”.
Senior Constable Bunting said to Constable Corbridge “did you see that bloke? He’s still standing there. I’m going to go back and have a look what he’s doing”.
After performing a U-turn on Coronation Drive, Senior Constable Bunting then drove the police vehicle back to Ploughmans Lane. She said that she stopped the vehicle where she had seen Mr Ussher, however, at that time he was not there. They then got out of the police vehicle to look for him and she saw Mr Ussher coming out from the bushes from 228 Ploughmans Lane and “he looked to be re-adjusting himself”.
Senior Constable Bunting told the Court that either herself or Constable Corbridge asked him what he was doing. Senior Constable Bunting said that the plaintiff “looked a bit dishevelled and like he was doing up his pants”. When asked what he was doing, the plaintiff’s reply was that he did not have to tell them.
He was further questioned but he refused to tell them anything.
When asked what he was doing at that location, Senior Constable Bunting’s best recollection was that he did not provide a reason although she fairly conceded that she could not recall.
She stated that she had come to the view that he was a look-out for somebody else or that he was breaking into places or he was waiting or doing something with drugs.
When asked what it was about his behaviour that led her to believe such matters, her response was that “his behaviour, at the time of night, that he wouldn’t tell us who he was or he wouldn’t tell us where he lived. Like he could – if he lived at 228, he should have said that he lived at 228.”
In direct conflict with the plaintiff’s evidence, Senior Constable Bunting denied that she ever spoke with the plaintiff whilst she was still in the police vehicle, much less from the front passenger seat. She further denied that, after parking the vehicle, that she saw the plaintiff before getting out of the vehicle.
Senior Constable Bunting formed the view that the plaintiff was not from Australia and when she asked the plaintiff where he was from his response was that he did not have to tell them.
When asked whether she formed any views about the plaintiff’s emotional state, Senior Constable Bunting stated “I thought he was either on drugs or he had mental health problems”. This was due to “his erratic behaviour, his unco-operativeness with us”. When asked about his behaviour, Senior Constable Bunting stated “that he was rambling that he didn’t have to talk to us, that there was no need for us to talk to him. He wanted to speak to the supervisor or the sergeant, that we had no cause to talk to him, we were in breach of the Code of Conduct, he knew his rights, all that sort of stuff”.
Senior Constable Bunting formed the opinion that it was appropriate to search the plaintiff due to the time of night, his behaviour, the fact that he was not forthcoming and the frequency of crime in the area.
When asked whether she suspected that he may have committed an offence, Senior Constable Bunting stated that he had already committed the offence of trespass but she was also mindful of the offence of break and enter and drug related offences.
Senior Constable Bunting corroborated the evidence that Constable Corbridge informed the plaintiff that he was to be searched. Whilst Senior Constable Bunting could not recall the exact words, her best evidence was that Constable Corbridge stated:

I’m Constable Corbridge from Orange Police Station. I am going to search you. I would like you to come to the back of the police vehicle and put your arms up. I’m going to give you a pat down search.
[T170.35].

Senior Constable Bunting was certain that Constable Corbridge provided the plaintiff with a reason for the search. Senior Constable Bunting also informed the plaintiff that she was going to search the plaintiff’s bags “because there’s a possibility that you’ve got something in your bags”. Plainly, she had in mind theft or drug offences.
During the course of the search, Constable Bennett arrived. At that time, Senior Constable Bunting was searching the bags. She came to the scene as Senior Constable Bunting had asked for further assistance due to the plaintiff’s behaviour.
Senior Constable Bunting described how she attempted to unwrap a small parcel found in the plaintiff’s bags. She said that the plaintiff reacted in that “he came at me, away from Constable Corbridge”. At that time, Senior Constable Bunting was on the ground, kneeling or squatting near the bags. He was about a metre, a metre and a half away from her.
As the plaintiff was coming at Senior Constable Bunting, Constable Corbridge performed an arm bar take down resulting in the plaintiff being face down on the road.
The plaintiff was then handcuffed and arrested before being placed in the police vehicle.
Senior Constable Bunting’s recollection was whilst on the ground, being handcuffed, Constable Corbridge said “I’m Constable Corbridge from Orange Police Station. You are under arrest in relation to …” Senior Constable Bunting believed that Constable Corbridge referred to trespass and resisting police.
When asked what suspicions Senior Constable Bunting had at the time of the arrest, she referred to trespass and break and enter.
Senior Constable Bunting then described how the plaintiff was taken back to Orange Police Station and the search continued before he was later taken to the Orange Base Hospital. The ambulance officers asked the police to drive behind them to the Hospital in case anything occurred. They did that and nothing happened.
Senior Constable Bunting then returned to the Police Station to complete the paper work including the information contained in the COPS Report which commences at page 24 of Exhibit B. Senior Constable Bunting gave as the primary reason for search was “ensure does not harm himself or others”. This reason was chosen from a limited auto prompt field. Whilst this was not a reason provided prior to the search, I am satisfied that the reasons for search were based upon reasonable held suspicion. When one views all police material in context, it is apparent that the reason given for each were based on suspicions recorded in the relatively contemporaneous police records.
Senior Constable Bunting also told the Court that she formed the opinion that the plaintiff was suffering from a mental condition, based upon his behaviour and having found prescription drugs in his possession.
Senior Constable Bunting was cross-examined about her failure to use the police notebook. She stated that, instead, she made her notes in the COPS entry. Senior Constable Bunting was pressed about the need for the use of the police notebook as indicated by the New South Wales Police Handbook commencing at page 80 of Exhibit B.
It was pointed out that “any issue of a serious or contentious nature must be recorded in a notebook or duty book, as soon as practical”. Further, the Handbook requires police to record all conversations from the time someone becomes a suspect.
The Handbook requires that “as a minimum”, the notebook must record the exercise of a power, the person’s demeanour and warnings given, including the offence.
Both Constable Corbridge and Senior Constable Bunting failed to comply with the requirements of the New South Wales Police Handbook. Senior Constable Bunting’s explanation for doing so was that she created a detailed COPS entry instead.
Senior Constable Bunting was challenged about her evidence concerning the plaintiff lunging in her direction.
Counsel for the plaintiff then continued to challenge Senior Constable Bunting as to a number of aspects of her evidence which were contradicted by the plaintiff’s evidence. In the main, Senior Constable Bunting maintained her position.
In relation to the plaintiff’s presence at 228 Ploughmans Lane, Senior Constable Bunting clearly formed the view that the plaintiff was within the boundary of those premises, coming out of the bushes [T217].

Senior Constable Monro

Senior Constable Monro was the Custody Manager at the Orange Police Station on the night in question. She maintained a role independent of the arresting police officers. Senior Constable Monro referred to the plaintiff being agitated and described that as meaning probably not standing still at the counter.
In respect of a number of questions in the questionnaire provided to the plaintiff by Senior Constable Monro, the plaintiff refused to answer the questions.
Senior Constable Monro decided to call the ambulance as she wanted somebody with medical training to have a look at him. She was concerned not only for his mental health but his general health and was mindful of the fact that he had medication.
Senior Constable Monro described how the plaintiff was released and handed over to the ambulance officers to be taken to the Hospital.

Senior Constable Hayley Bennett

Senior Constable Bennett again explained the concept of weaponless control and arm bar take down.
On the night in question, she was conducting duties throughout the town of Orange using a fully marked police vehicle. She was alone in the vehicle, wearing a police uniform. She was requested to attend the scene of the incident. She did that and began assisting Senior Constable Bunting with the searching of two bags. Senior Constable Bennett told the Court that the parties were standing on the side of Ploughmans Lane. She said that the plaintiff was swearing, yelling at police and was quite erratic. She recalled that Senior Constable Bunting had pulled out a small package. Senior Constable Bennett was beside her at the time. When the plaintiff observed the small package, he was about a metre or a metre and a half away. Senior Constable Bunting then began to unwrap the package and then the plaintiff “lunged towards her”. She described it “as a quick step or two steps towards Senior Constable Bunting with his hands raised”.
She observed Constable Corbridge perform an arm bar take down which she considered was appropriate in the circumstances. When asked why, she stated:

The threat posed. Mr Ussher was not armed with any sort of weapon so that was the most appropriate in that situation to prevent him from lunging towards Senior Constable Bunting.
[T251.35].

As for giving the warning for arrest, Senior Constable Bennett could not recall whether anything was said.

The Documentary Evidence

The primary source of documentary evidence was contained in Exhibit B. In particular, commencing at page 24, is the police COPS entry. The following factual matters can be derived from that and related documents:

the incident was first reported to the police by the Computer Aided Dispatch (CAD) at 12:12am on 13 December 2013;

the incident header recorded that a male was walking around in the area of Cargo Road and Ploughmans Lane;

the police were to check his bona fides;

the information was provided by “OG15”, being the vehicle driven by Senior Constable Bunting;

the situation was to be actioned by OG15 which included Senior Constable Bunting and Constable Corbridge;

the Narrative Details Description were entered into the police record at 1:23pm;

it is referred to as an Automated Narrative and records that the plaintiff was located just after midnight on 13 December 2013;

the Narrative recorded that the plaintiff was searched with nothing found;

the “Primary Reason” for the search was given as “ensure does not harm self or others”. This was selected from a drop-down box which provided limited options;

the additional comments provided in the report included, “male walking around residential area around midnight, seen in same area an hour before. When police came back to see what male was doing after seeing him again was coming out of bushes adjusting/pulling up his shorts. Male appeared to be suffering from some form of mental illness”;

the next entry occurred at 2:14am. It referred to the plaintiff’s New Zealand passport number and the belief of the police officer that the plaintiff was suffering from some form of mental illness. There is reference to the fact that Anafranil was found in his possession;

it is recorded that Anafranil is used to treat depression that is long-lasting, obsessive compulsive disorders and phobias in adults; muscle weakness and people with a sleep disorder, Narcolepsy;

it is also recorded that:

About 11pm on Thursday 12 December 2013 police were travelling west along Coronation Drive Orange out of Orange for an unrelated matter. Near the intersection of Ploughmans Lane police saw a male wearing a wide brimmed straw hat, flannelette type shirt, shorts and thongs carrying a blue Woolworth’s type chiller bag and a large striped bag similar to those sold in the cheap shops.
On police returning to Orange about midnight the man was again seen around the same intersection. Given the time of night, the bags the man was carrying and the incidence of break and enters in the Orange area police turned around and came back to see what the man was doing.
As police turned into Ploughmans Lane they could not see the man only his bags on the far side of the road.
Police looked around and the man appeared to come from out of the yard of 228 Ploughmans Lane adjusting his pants and appeared to pull them up.
Police stopped and spoke to the man and asked him what he was doing. He said he hadn’t need to pee and police had caught him.
The man herein after referred to as the person of interest (POI) was asked what he was doing. He replied that he was trying to find an orchard on Canobolas Road and said he thought he was given the wrong direction.
The POI was asked if he was a back packer and he replied yes. He was asked where he was from and he said New Zealand however he did not sound like he had a New Zealand accent. He appeared agitated and nervous and started to walk away when police asked him his name and to provide some form of identification.
The POI said that he did not have any form of identification on him he had put it in storage however would not tell police where that storage was.
He informed police that he did not have to provide his details and he was leaving and police were keeping him against his will depriving him of his civil liberty.
Police told him they were asking him to provide his details and he may be committing an offence if he did not. If he could not provide his passport details was he also here illegally. To which he told police he didn’t have to tell them anything.
Due to the way the POI was acting it was also suspected that he may be under the influence of some form of drug due to his random speech.
Given the POI’s odd behaviour, the time of night and the bags he was carrying he was informed police were going to search him to make sure he did not have anything illegal on him.
The POI refused and started to raise his voice at police that he was leaving and they had nothing to speak to him about he was minding his own business and police were depriving him of his liberty.
The POI was again informed of police intentions to search him. He refused and commenced to walk away from police ranting that police were not abiding by the New South Wales Police Code of Conduct to be helpful and polite to the community.
He was warned again regarding his behaviour and non compliance of their intention to search him.
The POI said he wanted to speak to the Sergeant take him to the Sergeant or the boss immediately as police were breaching his civil rights. Police were corrupt, all police were corrupt.
Due to the POI’s increasingly irratic [sic] behaviour it was concerned that he may have something on him that may be of harm to himself or police. He was told to stand at the back of the police vehicle to be searched. He was non complaint [sic] and his hand had to be held up whilst police searched his pockets. A cake of soap was in one pocket and money was in the other which was placed in his straw hat which was now on the ground.
The money was commenced being counted in front of him to which he said I can’t see what you are doing are you pocketing my money. It was in plane [sic] view of the POI taking money from his pocket and being put in the hat.
Another officer attended (BENNETT) and the bags were started to be searched. There was [sic] a number of new items with a receipt that had not been opened. (Of note to the straw hat still had the tag on it which was on the receipt to [sic]). Everything was in large black garbage bags. There was [sic] wet clothes all bundled into a bag and dry in another and both were doubled bagged. An old film type camera which appeared to have no film was in three garbage bags.
There was another smaller item wrapped and sealed in 4 garbage bags. Police (BUNTING) asked the POI what this was as it felt like a small book possibly a passport. The POI became increasingly agitated and started to wrestle away from the officer (CORBRIDGE) was searching him. He kept telling police that they had no right to open it. Police thought it might contain illegal drugs due to his behaviour and asked him. The POI said no and as the garbage bags were continued to be taken off the item the POI lunged at the item / police officer holding the item (BUNTING). CORBRIDGE on seeing this has performed an arm bar take down on the POI with both landing on the ground. He was assisted by BUNTING and BENNETT in handcuffing the POI.
The package was continued to be opened and it was found to be the POI’s passport, which was issued in April this year and had been used quite extensively to travel to China, Afghanistan and other countries where he had only stayed for a short time.
The POI was most upset police had found his passport and continued to rant.

Those were the recorded observations made at the scene of the incident. Back at the Police Station the Narrative details recorded the following developments:

The POI was taken to the Police Station where he was introduced to the custody manager.
The validity of his passport was checked with iss and was found to be ok.
In the POI’s property a prescription for 25 mg Anafranil tablets was located along with one sheet remaining. It was noted that the issuing doctor was a Dr Elayn ANDERSON and it was last filled in Bundaberg on the 23 November 2013. The box was checked and did contain 50 tablets. (Noted by police and ambulance on their attendance at station that given the issue date and the prescribed dose of 4 tablets a day the PI should have finished this box – there fore of both it is believed he was not taking his medication which could cause his erratic behaviour).
The POI became upset that police were looking at his medication and that was none of their business. They informed him they believed he was suffering from some form of mental illness.
The POI told police he wanted to see a doctor and a solicitor as he had been assaulted by police and they had breached his civil rights?
The POI continued to ramble about this at great length to anyone that would listen and that it was a false arrest.
Ambulance staff arrived and decided he needed to go to the Hospital for assessment. He was released from custody and taken to the Hospital with police following.
Of note in his property there were no bank cards located. There was a key to storage somewhere which he would not say where. He only had the money 175 dollars on him. He also had no fixed abode. At one stage he told police he was actually an Australian resident not a New Zealand resident despite having a New Zealand passport.
Everytime police tried to talk to the POI he kept cutting them off telling them they were not listening to him and he didn’t understand them.
He was left at the hospital with Nursing Staff and Security awaiting an assessment.

Also part of Exhibit B commencing at page 32 is the Custody Management Record. It refers to the following matters:

the plaintiff displayed confusion;

he was agitated by his arrest;

he mentioned his mental health and that he was on anti-depressants;

he refused to answer a number of questions contained in the Custody Management Record;

when asked to comment on the questionnaire it was noted that the plaintiff “refused to respond”;

as for general observations, it was noted that the plaintiff “wishes to make a complaint”.

The Custody Management Records also indicate the plaintiff was released from custody at 2:19am on 13 December 2013 for medical treatment. Constable Tracey Monro performed the release and noted “released and transported with NSW Ambulance Service for MH (mental health) assessment at Orange Health Services”.
The ambulance report also forms part of Exhibit B, commencing at page 41. Of most relevance is the Case Description set out at page 42. Relevantly, it states:

PT 37YO male in police custody. Police state they found PT sitting on roadside for extended time. Police approached PT and states he became erratic not making sense and aggressive towards police. Police requesting PT be TX to hosp [sic] for mental health assessment.

The other document of interest included in Exhibit B is the NSW Police Force Code of Practice for Crime (commencing at page 52). No reference was made to this in the course of the evidence or submissions.
The final document is the NSW Police Force Handbook (commencing at page 80). Its relevance was limited to the crime reporting – Computerised Operational Policing System (COPS) and the use of notebooks about which reference has already been made.

analyis of the evidence and factual findings

My analysis of the evidence is founded upon an acceptance of the oral evidence of Constable Corbridge, Senior Constable Bunting and, to the extent necessary, the other police officers involved. The preference of that evidence is based upon my observation of the witnesses in Court and a careful analysis of the documentary evidence contained in Exhibit B which provided sound corroboration as to the events about which the police gave evidence.
The plaintiff’s presentation as a witness was unsatisfactory. He appeared to be evasive in answering questions which were contrary to his account. There were also a number of aspects of his evidence which defied common sense and experience. For example, standing under a street light in public to urinate when there were other more private areas to do so.
Another example is the suggestion that Constable Corbridge fondled the plaintiff’s buttocks and pressed on his underwear. Whilst that may, to some degree, have been part of the general search, the plaintiff’s repeated emphasis of that fact suggests an element of fabrication or emphasis designed to implicate Constable Corbridge in some unreasonable act.
A third example is the evidence from the plaintiff that, upon seeing Senior Constable Bunting holding the package containing his passport, he fled to the left with the intention of leaving the scene and all of his belongings. Not only does that action not make sense but it does not accord with the plaintiff’s conduct generally in which he stood up for what he understood to be his rights.
The plaintiff’s evidence about fleeing and abandoning his personal possessions was explained by him on the basis that things were getting out of hand. Neither Constable Corbridge nor Senior Constable Bunting struck me as police officers who would behave, other than in accordance with the responsible discharge of their duties as police officers.
Having accepted the police evidence and having regard to the documentary evidence, I make the following findings of fact:

(a) the plaintiff was born in New Zealand in 1976;

(b) at the time of this incident in December 2013, the plaintiff was 37 years of age;

(c) the plaintiff hitch-hiked from Forbes to Orange with the intention of fruit picking at Caernarvon Cherry Pty Limited located on Canobolas Road at Canobolas;

(d) upon arriving in Orange on the evening of 12 December 2013, the plaintiff purchased some food and camping gear;

(e) on the night of 12 December 2013, the plaintiff left Orange with the intention of walking to the property where he was to work as a fruit picker;

(f) the plaintiff left town via Coronation Drive;

(g) the plaintiff was seen on the south-western corner of the intersection of Ploughmans Lane and Cargo Road by Senior Constable Bunting and Constable Corbridge who were driving out towards Cargo in respect of an unrelated domestic event;

(h) at that time, the plaintiff was standing beside his bags;

(i) the police vehicle in which Senior Constable Bunting and Constable Corbridge were travelling was being driven by Senior Constable Bunting with Constable Corbridge as the front seat passenger;

(j) it was a regular police vehicle with a moulded plastic cage fitted to the back to accommodate people who may be arrested;

(k) the first police sighting of the plaintiff occurred sometime between 11pm and 11.30pm on 12 December 2013;

(l) after attending to the unrelated police business at Cargo, Senior Constable Bunting and Constable Corbridge were returning to Orange along the Cargo Road;

(m) as they passed its intersection with Ploughmans Lane, Senior Constable Bunting observed the plaintiff and his bags in the same or a similar position to that which they were located about an hour earlier when they had made their way out to Cargo;

(n) Senior Constable Bunting drove past the intersection some unknown distance down Coronation Drive and performed a U-turn in order to go back and check on the plaintiff;

(o) at about 12:12am a call was made by Senior Constable Bunting or Constable Corbridge to VKG reporting back that they had observed a male walking about in the area of the intersection and that they were to check his bona fides;

(p) when the police officers returned to the intersection, the plaintiff was not there, although his bags were;

(q) the police vehicle was driven by Senior Constable Bunting to a position on the western side of Ploughmans Lane;

(r) thereupon Senior Constable Bunting and Constable Corbridge got out of the police vehicle in order to locate the plaintiff;

(s) a short time later, they observed the plaintiff coming out from trees within the property boundary of 228 Ploughmans Lane, Orange;

(t) the plaintiff was trespassing and quite probably guilty of the offence of unlawful entry on enclosed lands;

(u) when they observed the plaintiff at that time, he was pulling up or adjusting his shorts. It is likely that the plaintiff either had urinated or attempted to urinate raising the real prospect of an offensive conduct arrest;

(v) the police officers asked the plaintiff a number of questions in an attempt to identify him and understand what he was doing;

(w) the plaintiff was evasive in his response and refused to answer the questions put to him by the police officers;

(x) after considering all of the circumstances, Constable Corbridge undertook a regular search of the plaintiff by placing his hands on the rear of the police vehicle and searching his outer clothing;

(y) the plaintiff was not co-operative and he kept moving his hands down;

(z) at the same time, Senior Constable Bunting performed a search of the plaintiff’s bags;

(aa) Senior Constable Bunting, whilst searching the bags, was about 1 to 1.5 metres away from the location where the plaintiff’s person was being searched;

(bb) Senior Constable Bunting was squatting or kneeling in order to search the bags;

(cc) she was facing the direction of the plaintiff and Constable Corbridge;

(dd) Senior Constable Bunting discovered a number of items in the plaintiff’s bags and came across a small package wrapped in a plastic bag, the size of a notebook;

(ee) the plaintiff saw Senior Constable Bunting holding the package;

(ff) as a result, he broke free from the search being undertaken by Constable Corbridge and lunged with his arms out in the direction of Senior Constable Bunting;

(gg) Constable Corbridge then performed an arm bar take down resulting in the plaintiff being face down on the roadway;

(hh) prior to the take down being performed, Constable Bennett arrived at the scene and was assisting Senior Constable Bunting with the search of the plaintiff’s bags;

(ii) the plaintiff was handcuffed and put into the rear of the police vehicle;

(jj) the plaintiff was transferred to the Orange Police Station where he came under the control of the Custody Manager on duty at the time, Senior Constable Monro;

(kk) whilst at the Police Station, the plaintiff appeared to be confused and agitated;

(ll) the plaintiff also told Senior Constable Monro about his mental health and it was noted that he was in possession of anti-depressant medication;

(mm) Senior Constable Monro asked the plaintiff a number of questions as part of the usual custody procedure. The plaintiff was unco-operative, refused to respond and indicated that he wished to make a complaint;

(nn) at 2:19am, the plaintiff was released from arrest by Senior Constable Monro and handed over to the New South Wales Ambulance Service for transportation to the Orange Health Service for mental health assessment;

(oo) at the request of the ambulance officers, the police escorted the ambulance vehicle to the hospital and had no further involvement in the plaintiff’s care custody or control;

(pp) the plaintiff was subsequently released from the Orange Health Services into the community.

general legal PRINCIPLES

Counsel for the defendant set out five general legal propositions which bear upon the determination of the lawfulness of the search and subsequent arrest. They are:

10   It is useful to briefly note the following general legal propositions at the outset:
(a)   it is not in dispute that the plaintiff was searched and arrested. The defendant accepts that it must show lawful justification for the search and arrest: Ruddock v Taylor (2005) 222 CLR 61 at 617;
(b)   although the law places a high importance on personal liberty (Williams v The Queen (1986) 161 CLR 278 at 292 and 296), it must be remembered that there is a public interest in the detection of crime and bringing those who commit it to justice: Holgate-Mohammed v Duke [1984] AC 437 at 445 per Lord Diplock (cited with approval in Hyder v Commonwealth of Australia [2012] NSWCA 336 at [14] per McColl JA, with whom Hoeben JA agreed). That public interest is reflected in the police’s duty to prevent and detect crime and protect persons and property: s6, Police Act 1990;
(c)   a police officer’s use of his discretion to make an arrest where reasonable grounds for suspicion exist cannot be questioned except on Wednesbury grounds: Holgate-Mohammed v Duke [1984] AC 437 at 443 per Lord Diplock. By analogy, the same principle applies to a police officer’s discretion to search a person;
(d)   “In determining whether the arresting officer had the relevant state of mind (be it suspicion or belief), the court is considering a preliminary stage of the investigation, rather than one requiring evidence amounting to prima facie proof”: Hyder v Commonwealth of Australia [2012] NSWCA 336 at [14] per McColl JA, with whom Hoeben JA agreed);
(e)   the test of whether Constable Corbridge suspected something on reasonable grounds is not determined by reference to whether “[Constable Corbridge] had reasonable grounds for his belief but whether a reasonable man in his position would have held such a belief having regard to the information which was in [Constable Corbridge’s] mind. That raises two questions. The first is whether, accepting [Constable Corbridge’s] evidence … he not only held a belief but held a belief that conformed with the statutory text and, secondly, if he did hold that belief, whether he had reasonable grounds for doing so”: State of New South Wales v Talovic [2014] NSWCA 333 at [184] per Tobias JA.

Counsel for the plaintiff also referred the Court to a decision of Acting Justice Smart in R v Rondo [2001] NSWCCA 540 in which his Honour considered the criteria of the search on the grounds of reasonable suspicion. After considering other authorities, Smart AJ said [53]:

These propositions emerge:
(a)   a reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence;
(b)   reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The material must have some probative value;
(c)   what is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.

It was submitted by counsel for the plaintiff that there is both an objective and subjective element to the test. The subjective element is that the police officer must, in fact, hold the suspicion. The objective element is the requirement that there be reasonable grounds for the suspicion.
What is required to enliven the powers of search and arrest under LEPRA is suspicion on reasonable grounds. That is a lesser state of persuasion than belief. As Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942 at 948 the ordinary meaning of suspicion is a state of conjecture or surmise where proof is lacking.
Counsel for the defendant referred the Court to the decision of the High Court in George v Rockett [1990] HCA 26; 170 CLR 104 where the majority stated [at 115-116]:

“Suspicion”, as Lord Devlin said in Hussien v Chong Fook Kam [1969] UKPC 26; (1970) AC 942, at p 948, “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”. The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay (its) debts as they became due” as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said at page 303):
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amount to a ‘slight opinion, but without sufficient evidence’, as Chambers Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s.(4) is, I think, of something which in all of the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes – a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.”

These are some of the legal principles which inform the question of suspicion on reasonable grounds.

the lawfulness of the search

It was submitted by counsel for the defendant that the lawful justification for the search performed by Constable Corbridge and Senior Constable Bunting was provided by s21 of LEPRA which relevantly provided:

21    Power to search persons and seize and detain things without warrant
(1)   A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:
(a)   the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,
(b)   the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,
(c)   the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,
(d)   the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.

Constable Corbridge suspected that the plaintiff had been committing property offences, namely break, enter and steal at 228 Ploughmans Lane, Orange [T118.26]. That suspicion was based upon his observations of the plaintiff trespassing at that address, intelligence as to frequency of break and enters in the area and the fact that the plaintiff had been loitering in the area for at least an hour [T118.38 and following]. Further, suspicion would have been raised by the plaintiff’s conduct. He was evasive and unco-operative with the police.
In my opinion, I find that the suspicion held by Constable Corbridge that the plaintiff may have had something stolen or otherwise unlawfully obtained in his possession was reasonable, if not compelling, in the circumstances. A reasonable person in his position would have held such a belief.
I find that suspicion was sufficient to warrant the search of the plaintiff’s person and bags. I find the search was lawful and justified under s21 of LEPRA.
Senior Constable Bunting either thought that the plaintiff was on the lookout for somebody else engaged in illegal activity or that he was breaking into places. She also suspected drugs. She had a suspicion that the plaintiff may have committed an offence of break enter and steal [T225]. The reason for formulating that suspicion was based upon the plaintiff’s behaviour, the time of night and the fact that he would not tell them who he was or where he lived. She thought that he may be on drugs or had mental health problems because of his erratic behaviour, lack of co-operation and rambling. Senior Constable Bunting told the Court that a multitude of offences ran through her mind. It is apparent from the police documents that self-harm or harm to others were amongst the possible circumstances which may give rise to an offence;
It is plain that Senior Constable Bunting had in her mind the possibility that the plaintiff had in his possession or under his control something stolen or otherwise unlawfully obtained or, alternatively, drugs, in contravention of the Drug Misuse and Trafficking Act 1985. I find that the suspicions held by Senior Constable Bunting were reasonable and justified the exercise of the power to search provided by s21. A reasonable person in her position would have held such a belief.
Having regard to the legal principles referred to above which counsel for the plaintiff directed the Court, I find that the requirements of s21 of LEPRA were satisfied, in the circumstances.
Suspicion, however, is not of itself sufficient in the final exercise of the power of search. The police officers must comply with s201 of LEPRA.
Section 201(1) provides:

201 supplying police officer’s details and giving warnings
(1)   A police officer must provide the person subject to the existence of the power referred to in sub-section 3 with the following:
(a)   evidence that the police officer is a police officer (unless the police officer is in uniform),
(b)   the name of the police officer and his or her place of duty,
(c)   the reason for the exercise of the power.

In his evidence [T120.10] Constable Corbridge said that he stated to the plaintiff “my name is Constable Corbridge from – I’m from Orange Police Station. I am now going to submit you to a search for anything stolen or unlawfully obtained”.
I find that in giving that warning, Constable Corbridge complied with the police officer’s obligation under s201 of LEPRA.
Accordingly, by reason of compliance with s21 and s201 of LEPRA, I find that the search conducted by Constable Corbridge and Senior Constable Bunting was lawful. Although, in the circumstances, it is not necessary to make this finding, I also find that, by reason of the plaintiff’s conduct, the search was justified.

the Lawfulness of the Arrest

Section 99 of LEPRA empowers a police officer to arrest without warrant. It provides:

99   Power of police officers to arrest without warrant
(cf Crimes Act 1900, s 352, Cth Act, s 3W)
(1) A police officer may, without a warrant, arrest a person if:
(a)  the person is in the act of committing an offence under any Act or statutory instrument, or
(b)  the person has just committed any such offence, or
(c)  the person has committed a serious indictable offence for which the person has not been tried.

(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.
(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:
(a)  to ensure the appearance of the person before a court in respect of the offence,
(b)  to prevent a repetition or continuation of the offence or the commission of another offence,
(c)  to prevent the concealment, loss or destruction of evidence relating to the offence,
(d)  to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,
(e)  to prevent the fabrication of evidence in respect of the offence,
(f)  to preserve the safety or welfare of the person.

(4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

The defendant relied upon sub-sections 1(b), 1(c), 2 and 3(a) of s99.
The plaintiff was committing the offence of unlawful entry and possibly offensive conduct when first seen.
Section 99(2), however, gives a broader power to arrest based on suspicion.
I have summarised in the evidence section above regarding the suspicions held by Constable Corbridge and Senior Constable Bunting at the time of the plaintiff’s arrest and the bases for those suspicions.
Constable Corbridge considered the plaintiff had committed the offence of offensive behaviour for urinating in view of a public place and trespass. In giving consideration to the offence of offensive behaviour, I have had regard to the comments of Ward JA in NSW v Beck [2013] NSWCA 437, particularly at [170]. The hypothetical ordinary reasonable person could have seen and been offended by the plaintiff’s conduct of urinating in a public place or having his pants down in a public place.
Senior Constable Bunting thought that the plaintiff had committed the offence of trespass and also questioned his identity. In addition, Senior Constable Bunting suspected break and enter.
I find that the suspicions held by Constable Corbridge and Senior Constable Bunting were sufficient to enliven the power of arrest under s99(2). Some of the grounds relevant to making that finding are the fact that the plaintiff emerged from the property at 228 Ploughman’s Lane, Orange, the plaintiff was pulling up his pants when first seen, the plaintiff was evasive and non-responsive and that the plaintiff had attempted to lunge at Senior Constable Bunting.
Constable Corbridge gave evidence that he was of the belief that it was necessary to arrest the plaintiff to ensure his appearance before a court in respect of the offence (s99(3)(a)). In light of the plaintiff’s refusal to co-operate with the police officers’ enquiries as to his identity and address, I find that Constable Corbridge and Senior Constable Bunting were justified in suspecting on reasonable grounds that it was necessary to arrest the plaintiff to ensure his appearance before the court in respect of the offences about which reasonable suspicion was held.
With the power of arrest comes the obligations to provide a warning. I find that Constable Corbridge provided a warning to the plaintiff shortly after handcuffing him which satisfied the requirements of s201.
It is plain from the warning provided by Constable Corbridge to the plaintiff that the Constable considered that the plaintiff had committed the offences of offensive behaviour and trespass (s4 Inclosed Lands Protection Act) and (s4(1) Summary Offences Act 1988).
There also remained at large the possibility of offences relating to break and enter, drug offences and the attempted assault of Senior Constable Bunting. It was not necessary, however, to provide all of those reasons for the exercise of the power.
Accordingly, I find that the arrest of the plaintiff complied with ss 99 and 201 of LEPRA and was lawful.

USE OF FORCE

It is submitted by the plaintiff that the force used by Constable Corbridge was, in the circumstances, excessive, giving rise to battery or assault.
In considering this question, I have given consideration to the evidence of the three police officers present when the arrest was undertaken and find that the force used by Constable Corbridge was reasonable in the circumstances.
In particular, I find that the force used by Constable Corbridge was reasonably necessary to exercise the powers of, initially, search, and, later, arrest, in accordance with s230 of LEPRA.
As for the force used in subduing and arresting the plaintiff, I am mindful of the fact that, at that moment, the plaintiff was lunging in the direction of Senior Constable Bunting who was in a crouched position on the roadway about a metre or a metre and a half away from where the plaintiff was being searched. The arm bar take down was an authorised technique for the use of force by police officers at the lower end of the range of force available to them.
I have also given consideration to the comments made by Justice Heydon in Woodley v Boyd [2001] NSWCA 35 at [37] and in particular the following statement:

[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.

Even without taking into account the circumstances which existed in the moments when the incident occurred and looking at the entire process retrospectively, I find that the conduct of the attending police officers was, in all of the circumstances, reasonable and justified.

inadequacy of documentary records

The plaintiff complains that the attending police officers failed to comply with the New South Wales Police Force Handbook issued October 2013.
The attending police officers were criticised for failing to comply with the Handbook in relation to notebook entries.
Apart from the CAD record (Exhibit B, page 39), the Custody Management Record (Exhibit B, page 32), the only document which provided evidence of what occurred appears in the COPS Event Report (Exhibit B, page 24).
The Narrative details contained in the Event Report were entered by Senior Constable Bunting upon returning to the Police Station. The first entry was made at 1:23am and sets out the circumstances leading to the search of the plaintiff. This must be considered in the context of the police evidence and records created at that time.

The next, more detailed entry in the Narrative Details was made at 2:14am and sets out the events from when the plaintiff was first seen by Senior Constable Bunting and Constable Corbridge as they were leaving town for the domestic dispute.
In my view, the Event Report corroborates the factual matters upon which the grounds for suspicion which led to the search and arrest were based.
Whilst the failure to comply with the use of the notebook represents non-compliance with the Handbook, it does not, in my opinion, render unlawful a search and arrest which otherwise were lawful.

Self defence

In the event that I erred in my findings above regarding the lawfulness of the conduct of the police officers involved in the search and arrest of the plaintiff, I note that the defendant relies upon s52 of the Civil Liability Act which provides as follows:

52   No civil liability for acts in self-defence
(1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding:
(a)  was unlawful, or
(b)  would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a)  to defend himself or herself or another person, or
(b)  to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c)  to protect property from unlawful taking, destruction, damage or interference, or
(d)  to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.

(3)    This section does not apply if the person uses force that involves the intentional or reckless infliction of death only:
(a)  to protect property, or
(b)  to prevent criminal trespass or to remove a person committing criminal trespass.

In view of the finding above concerning the plaintiff’s conduct and in particular, lunging towards Senior Constable Bunting, I find that Constable Corbridge’s actions in restraining and arresting the plaintiff was in response to unlawful conduct on the part of the plaintiff.
Further, I find that the actions taken by Constable Corbridge in restraining and arresting the plaintiff were taken as a result of his belief that such conduct was necessary to defend himself and/or Senior Constable Bunting.
I am of the view that the exceptions provided under s53 do not arise. That is, the circumstances of the case are not exceptional and, in the circumstances, it is not harsh or unjust to not award damages.

disposition

Having found the search and arrest of the plaintiff were both performed in a lawful manner, the plaintiff’s claim must fail.
Using the language adopted by the plaintiff in the Statement of Claim, I find:

the plaintiff was not accosted by three police officers;

the plaintiff did not attempt to leave the scene but was justifiably prevented from doing so by Constable Corbridge;

the plaintiff was not unreasonably deprived of his liberty;

the search of the plaintiff was lawful;

the search of the plaintiff’s possession was lawful;

the conduct of the police officers involved was justified and lawful;

any physical contact between the police officers and the plaintiff was justified, reasonable and lawful;

the plaintiff was not unlawfully imprisoned. In making this finding I have had regard to the decision of the New South Wales Court of Appeal in Croucher v Cachia [2016] NSWCA 132. In particular, I find that the restraint on the plaintiff’s liberty was with lawful justification;

the plaintiff was not subjected to assault and/or battery and/or trespass to the person. I find that any physical contact was with lawful justification;

the plaintiff was properly informed of the reasons for the search and arrest.

Accordingly, I enter a verdict for the defendant.

Damages

In the event that I am mistaken as to the foregoing, I am required to assess damages.
The plaintiff’s Schedule of Damages (MFI 2) sets out the following claim:

A

Compensatory damages (including aggravated damages)

(i)   Battery

$20,000.00

(ii)    Assault

$10,000.00

(iii)   Imprisonment

$10,000.00

B

Exemplary damages

$20,000.00

In ascribing value to the damages to which the plaintiff would be entitled, if successful, the Court must weigh the public interest in preserving the liberty of an individual against the public interest in the prevention of crime.
I am mindful of s6 of the Police Act 1990 which, as at the time of these events provided as follows:

6   Mission and functions of NSW Police Force
(1)    The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.
(2) The NSW Police Force has the following functions:
(a)  to provide police services for New South Wales,
(b)  to exercise any other function conferred on it by or under this or any other Act,
(c)  to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section:
police services includes:
(a)  services by way of prevention and detection of crime, and
(b)  the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and
(c)  the provision of essential services in emergencies, and
(d)  any other service prescribed by the regulations.

(4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force.
(5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988.
(6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.

The primary obligation of the New South Wales Police Force and its officers is to work with the community to reduce violence, crime and fear.
The conduct of the plaintiff which led to the search and arrest were, for the reasons given above, highly suspicious and suggestive of crime and fear. Lunging in the direction of Senior Constable Bunting was potentially an act of violence. Against that, must be weighed the fact that for several hours, the plaintiff’s liberty was taken from him and he was held in custody before being released to the Ambulance Service. In many respects, the police officers involved acted with a sense of compassion and care for the well-being of the plaintiff. Senior Constable Bunting referred to a desire to prevent self-harm. Senior Constable Monro initiated the involvement of the Ambulance Service in order to ensure the plaintiff’s well-being.
In my opinion, the circumstances do not warrant an award of exemplary damages. In forming that view, I have had regard to the general principles which apply to awarding such damages: NSW v Abed [2014] NSWCA 419; NSW v Riley [2003] NSWCA 208.
Were I to assess damages, I would not allow any amount for exemplary damages as, in my opinion, the conduct of the attending police officers was entirely reasonable.
Further, I find that in the event that compensatory damages (including aggravated damages) for battery, assault and imprisonment were to be awarded, those damages ought not exceed $5,000.00.

ORDERS

Accordingly, I order:

Verdict for the defendant;

Plaintiff to pay the defendant’s costs;

Liberty to apply within 14 days to vary the order as to costs, if necessary;

Exhibits to be returned.

**********

Decision last updated: 26 July 2017

Medium Neutral Citation:	Ussher v State of New South Wales [2017] NSWDC 189
Hearing dates:	7, 8, 9 and 13 June 2017
Date of orders:	25 July 2017
Decision date:	25 July 2017
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	1 Verdict for the defendant; 2 Plaintiff to pay the defendant’s costs; 3 Liberty to apply to vary the order as to costs, if necessary; 4 Exhibits to be returned.
Catchwords:	TORT – intentional torts – lawfulness of search – lawfulness of arrest – false imprisonment – assault – battery DAMAGES – compensatory damages – aggravated damages – exemplary damages
Legislation Cited:	Civil Liability Act 2002 Drug Misuse and Trafficking Act 1985 Inclosed Lands Protection Act 1901 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Law Reform (Vicarious Liability) Act 1983 Police Act 1990 Summary Offences Act 1988
Cases Cited:	Croucher v Cachia [2016] NSWCA 132 George v Rockett [1990] HCA 26; 170 CLR 104 Hussien v Chong Fook Kam [1970] AC 942 at 948 NSW v Abed [2014] NSWCA 419 NSW v Beck [2013] NSWCA 437 NSW v Riley [2003] NSWCA 208 R v Rondo [2001] NSWCCA 540 Woodley v Boyd [2001] NSWCA 35
Category:	Principal judgment
Parties:	Daniel Ussher v State of New South Wales
Representation:	Counsel: Mr P Batley (Plaintiff) Mr N Newton (Defendant) Solicitors: Legal Aid (Plaintiff) McCabes (Defendant)
File Number(s):	2016/211820

A	Compensatory damages (including aggravated damages)
(i) Battery	$20,000.00
(ii) Assault	$10,000.00
(iii) Imprisonment	$10,000.00
B	Exemplary damages	$20,000.00