Vivoda v Kealy, Gundrill and State of Victoria
[2013] VCC 130
•28 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-10-03799
| TIM ROBERT VIVODA | Plaintiff |
| v | |
| DAVID KEALY | First Defendant |
| and | |
| DENNIS GUNDRILL | Second Defendant |
| and | |
| STATE OF VICTORIA | Third Defendant |
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25, 29, 30, 31 January, 1, 4, 5, 6, 7, 11, 12 February 2013 | |
DATE OF JUDGMENT: | 28 February 2013 | |
CASE MAY BE CITED AS: | Vivoda v Kealy, Gundrill & State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 130 | |
REASONS FOR JUDGMENT
Subject:TORT – BATTERY – SELF-DEFENCE – MALICIOUS PROSECUTION LIABILITY ATTACHING TO THE STATE
Catchwords: Police assault – lunge by plaintiff at a police officer in police station – assault by that officer – officer alleges plaintiff grabbing for his gun – whether officer acting in self-defence – malicious prosecution – one officer aiding and abetting another in the bringing of a prosecution – liability of State of Victoria for actions of officers – damages – aggravated and exemplary damages.
Legislation Cited: Police Regulation Act 1958, s123; Summary Offences Act 1966.
Cases Cited: Slaveski v State of Victoria [2010] VSC 441; A v State of New South Wales (2007) 230 CLR 500; Zecevic v DPP (1987) 162 CLR 645; Watkins v State of Victoria & Ors (2010) 27 VR 543; DPP v Morgan [1976] AC 182; R v Williams (1983) 78 Cr App Rep 276; R v Conlon (1993) 69 A Crim R 92; Husher v Husher (1999) 197 CLR 138; Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594; Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL;Poseidon Limited & Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Briginshaw v Briginshaw (1938) 60 CLR 366; Lamb v Cotogno (1987) 164 CLR 1; Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118.
Judgment: Battery established – self-defence not made out – malicious prosecution made out against first defendant but not second defendant – damages awarded – aggravated damages awarded – liability attaches to the State under s123 of Police Regulation Act 1958.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy SC with Mr M Belmar | Maurice Blackburn Pty Ltd |
| For the First and Second Defendants | Mr R Gipp | Victorian Government Solicitor’s Office |
| For the Third Defendant | Ms N Hodgson | Moray & Agnew |
HIS HONOUR:
Preliminary
1 The plaintiff, Mr Vivoda, was punched to the head by the first defendant, Mr Kealy, a police officer, while in custody at the Ringwood Police Station on 2 April 2008, having earlier been found drunk in a public street. Mr Kealy alleges he was acting in self-defence, as the punch was in response to Mr Vivoda lunging at him, he believed, in an attempt to ‘grab’ his police pistol. In fact, the pistol was not in his holster at the time. Subsequently, Mr Vivoda was charged with assault police, which charge was dismissed in the Magistrates’ Court on 23 September 2008. Mr Vivoda alleges the charge, initiated by Mr Kealy, alternatively the second defendant, Mr Gundrill, acting in concert, was brought for an improper purpose and thus constituted a malicious prosecution.
2 Mr Vivoda further alleges the third defendant is, pursuant to s123 of the Police Regulation Act 1958, liable for any award of damages made against the first and second defendants.
3 As a result of the alleged assault, Mr Vivoda claims to have suffered injury in the nature of a psychological reaction, and consequent medical expenses and loss of wages. He seeks damages, including aggravated and exemplary damages.
Evidence as to Liability
Evidence of Mr Vivoda
4 Mr Vivoda gave evidence that over a considerable period he had a problem with alcohol. He had been admitted to various institutions and hospitals as a result. He did not drink alcohol every day, but rather “binge” drank. This occurred when something serious or stressful happened in his life and he would drink himself to a stupor over five to ten days.
5 Early on 2 April 2008, he received a phone call from an associate, Ms Lara Serapina, to discuss matters relating to his bonsai plant nursery business. He explained he had been drinking the night before and did not feel able to drive. She arranged a taxi to transport him to her premises on Temple Road, Selby. She had been drinking, and when he arrived, offered him a white wine. He had another glass and then tripped on some matting and fell down a staircase onto a coffee table.
6 He eventually wandered outside the premises. He heard a crunching noise and found himself on the ground. There were people there. He recalled police attending and they lifted him into a police van, which he thought may have been an ambulance. He thought he was being taken to hospital but ended up at the Ringwood Police Station. He said he could see what was happening, but not absorb what was going on. His ears were ringing. He was not certain he had an injury, but he had a cut to his head. There was a burn mark on his leg. He was subsequently told that he was hit by a power line.
7 At the police station, he was taken from a van and placed in a custody area. He thought he was being transferred to a doctor or a hospital. He then realised he was being charged.
8 He then saw an opening to get out of the police station. The transcript of his evidence as to what then occurred is as follows:
“Q: All right. Now we’ve seen the footage, but we haven’t heard the audio. Can you tell his Honour to the best of your recollection, what happened inside there?---
A: Well initially I thought that I was going to get transferred maybe to the doctors or to a hospital, and then I realised that I was getting charged and what had happened was, I was pleading with my hands, ‘What have I done?’ ‘I do need a doctor, can you please help me?’
Q: Could you see your hands being raised in the footage?---
A: Yes, yes sir.
Q: And you say that at that time you were asking what have you done and could you please see a doctor?---
A: Yes, yes sir.
Q: Why the concern about - - - ?---
A: Well I couldn’t see properly.
Q: Yes?---
A: I'd a problem with like double vision but it was almost like, I've never felt it before, it was like a buzzing but it was sort of like I could see, but it wasn’t registering.
Q: Yes, all right. Now, what happened?---
A: Well I pleaded and pleaded I was going to go into jail. I'd been in lock – in the lock up once before and I'm – I'm very afraid of being in the lock up. I – I pleaded with the officers not to charge me and, you know, I – I kept on pleading. You know, ‘I need a doctor don’t lock me away.’ I was pleading. I saw an opening for me to get out of the – custody area and – and try and jump over and get out of the police station, which I tried to do and subsequently failed.
Q: Yes. Well, how did you try to do that?---
A: Well I made – I was unsteady on my feet so I tried to make a dash or a – a quick movement to get out as quickly as I could under the circumstances that – of how I was feeling.
Q: All right. Did you intend to attack the police officer who turned out to be Mr Kealy?---
A: No way. He’s a very large man.
Q: Had you noticed whether or not he was wearing a gun at that
time?---A: No.
Q: Did you attempt to make any attempt at all to go for – well a non-existent gun?---
A: No sir.
Q: Did you make any attempt to go at all for any empty holster?---
A: No sir.
Q: Did you intend to – what was your sole intent?---
A: Was to try to get out and get help.
Q: All right, and what happened after? You said that attempt failed. What happened?---
A: Well I felt a thud to my head and I fell to the floor and I remember seeing the eyes of one of the police officers. They were blue and I looked into his eyes and the next thing I knew I'm picked up, and put down on the floor and…
Q: Well, you stopped there. What was it that you felt?---
A: A – a thud to the head.
Q: Which part of your head?---
A: My left hand cheek.
Q: All right and could you say anything about – something abut the severity of that?---
A: Well, initially I hit the floor and it was pleasant. I couldn’t see anything but I could - - -
Q: I'm sorry, the question is can you say something about the severity of the blow?---
A: Well, it hurt.
… It was a big hit. A big – I – I felt a very big hit in the head.”[1]
[1]Transcript (“T”) 74-76
9 He said it was a big heavy hit, a “king” hit. He did not recall the reaction from other officers. He heard people laughing. There were eight or nine officers in the vicinity. When the officers were laughing someone said “Cut it out”. His recollections of what precisely occurred were not clear. He said he was semi-conscious. The officer with the blue eyes asked “Do we strip him”? Someone said “No, he’s had enough”. Someone asked “Are you all right”? He suffered a black eye and a bruise to his face.
10 He said the laughter was a big thing. Two or three days later, he called the police at Belgrave and his call was returned by Mr Kealy. He asked “What are you charging me with?” Mr Kealy said that Mr Vivoda had grabbed his gun and that he would go to gaol. He was mortified. He made a complaint to the Office of Police Integrity (“OPI”).[2] The complaint contained a range of material.[3]
[2]Court Book (“CB”) 168-177
[3]Exhibit 3, CB 168-180
11 About a year later, he was charged with sexual assault. That charge was dismissed. He believed there was a connection between the two matters. Sometime later he was charged and convicted of possession and cultivation of cannabis.
12 The day after the assault by Mr Kealy, he was charged with assaulting police.
13 He was taken to a statement which he made at the time, and which accompanied his complaint to the OPI.[4] In that statement, he said:
“I lunged at the police as I needed medical attention.”
[4]CB 178
14 He did not really know what the word “lunge” meant. He meant to convey to go forward or to go past. He wanted to get out of the police station. He may have taken the word “lunge” from a police statement.[5]
[5]CB 120
15 He tried for a long time to obtain CCTV footage (“the footage”) of the incident. His complaint to the OPI was denied or dismissed.
16 He subsequently had discussions with Senior Sergeant Geoffrey Haines, about two years after the assault, who was an investigating officer. Mr Haines told him that he was causing trouble. He was shown an image on a computer depicting that he was grabbing a gun. That officer made fifty or so phone calls. Mr Haines tried to talk him out of making the complaint. He told Mr Haines to stop calling him.
17 Mr Vivoda was then cross-examined. He denied he had been drinking on the morning of the incident and had finished drinking about 10pm the night before. He had only drunk one-and-a-half glasses of white wine the night before and had finished at 10pm. It was put to him that at the Magistrates’ Court, his position had been that he was not drunk. Mr Vivoda said that his state was due to, in part, being hit on the head, and also being affected by alcohol.
18 He said he did not think at the time he was in the middle of a drinking binge, as he had just got off a good behaviour bond. Around 2 April 2008, he had been hitting the alcohol pretty hard and would have been on the way to a binge. He accepted he would have been affected by alcohol around that time.
19 He was taken to his letter of complaint.[6] He agreed this was the first time he had put anything down in writing as to what occurred. The letter was truthful. He accepted the letter said he was drunk at the time he received the phone call from Ms Serapina. He accepted he had problems with his memory. He accepted that nowhere in the letter was there any reference to him attempting to barge past the police officer to get out of the station. He agreed that on reflection he was drunk at the time. He thought he was concussed by the blow.
[6]CB 178
20 He agreed that on occasions he had made exaggerated statements. He said that he had applied to join the police force in about 1998. He had three shots at the entrance exam and passed the physical test. He was taken to the Victoria Police Complex. He was waiting to be taken into the Police Force but that did not transpire. He acknowledged he had never been officially a member of the Police Force.
21 He acknowledged that he had been in trouble with the police on prior occasions.[7]
[7]Exhibit D1/2A – Plaintiff’s full criminal record
22 Mr Vivoda said he did not recall Mr Kealy speaking to him on the side of the road earlier in the evening. He said he recalled being asked his name and address. He recalled being assisted to his feet. He recalled, when taken to the Ringwood Police Station, saying, “You can’t be locking me up, no way”. He agreed that he gradually became aware of his circumstances at the station. He accepted he became quite animated there. He agreed he used words to the effect “there’s going to be trouble” after he was struck, but not before. It was when he was released from the cell. Mr Vivoda denied lunging towards Mr Kealy and reaching for his gun or towards his right hip. He made no contact with Mr Kealy.
23 To the allegation that he said to Mr Gundrill “I have reached for police pistols before and will do it again”, he said he would not have said that.
24 He recalled being released from the police station at around 6.43pm and asked to sign a form as to how he was treated. He signed a document releasing him on bail. He did not recall being offered medical attention by a Sergeant MacGregor as he left the police station.
Evidence of Ms Jane Batchelor
25 Evidence was given by Mr Vivoda’s partner, Ms Jane Batchelor. On 2 April 2008, she received a call from Ms Serapina that Mr Vivoda had fallen down stairs and wandered onto the street. She called the police. She was told that he had been taken to Ringwood Police Station. He arrived home at about 7.30pm and was not in a good condition. He was confused and distressed. He had a black eye and was swollen around the face. He told her he had been punched in the face. Over the next week, he did some strange things. On or about 11 April 2008, he was taken to Maroondah Hospital as he had put his head in the oven. After the incident of 2 April 2008, he said that he could not believe what had happened to him. He said he thought he was in hospital and was quite shocked. He was very upset and frightened at the prospect of being charged with assault as he was worried about going to gaol. When the history of the Maroondah Hospital of 11 April 2008 that Mr Vivoda had been “drinking for three weeks” was put to Ms Batchelor, she said she thought it was a shorter time, possibly ten to fourteen days, although she could not really recall. She said that in addition to the black eye and swelling under the eye, he had a cut on his forehead and a burn on his leg.
Evidence of Acting Sergeant David Kealy
26 He joined the Police Force in 1996 and is now forty-two years of age. He has always been a uniform member. From 2003 until 2009, he was stationed at the Belgrave Police Station. He has been promoted from the rank of Constable through to Acting Sergeant. At the time he was a Senior Constable of Police. He was working with Mr Gundrill patrolling in a divisional van on 2 April 2008. As a result of a call from D24, he attended Temple Road, Selby. The van arrived at between 1.40 to 1.50pm. He observed a man, who he knows to be Mr Vivoda, on a grass verge of the road. At the time, an ambulance crew was there and checking him. The ambulance officers told him that Mr Vivoda was drunk and they did not say he had suffered any significant injury. The ambulance officers then left.
27 Mr Kealy then had a conversation with Mr Vivoda. He said Mr Vivoda’s speech was slurred, he smelled of liquor, his eyes were red and bloodshot and he was having difficulty standing up. Mr Kealy assessed him as being drunk. He asked him his name and address and Mr Vivoda said he had had a bit to drink. He asked him whether there was anyone at home and was told there was not. He said that he informed Mr Vivoda that he was to be arrested for being drunk and would be conveyed to the police station. He said Mr Vivoda responded with “Yeah, take me home”.
28 Vivoda was then placed in the divisional van and taken to the Ringwood Police Station.
29 Mr Kealy said that he recognised Mr Vivoda as there had been an incident within the last year where a truck containing various firearms was apprehended in Silvan Road. Vivoda was the driver. He was on patrol duties at the time, and went to the scene as backup. A rocket launcher and grenade were found. Mr Kealy was uncertain whether he saw Mr Vivoda and was not part of the investigation. On another occasion, another officer that Mr Kealy was with went to see Mr Vivoda for some purpose, and Mr Kealy spoke to him briefly.
30 Mr Kealy also knew of the previous assault police allegation against Mr Vivoda. The officer involved was Leading Senior Constable Cropp. There was an allegation Mr Vivoda grabbed for the police officer’s gun. He learned of this matter from speaking to various police members at Monbulk. He had no direct involvement. He knew that Mr Vivoda had a prior conviction for assault police and attempted gun grab.
31 The divisional van arrived at Ringwood Police Station at about 2.40pm. The van parked in an area known as the “sally port”. Mr Kealy got out of the van and handed his firearm to an officer at the station. He was carrying a Smith & Wesson firearm in a holder on his right hip. Mr Kealy was shown a similar holster to that which he wore on the day.[8] In addition, the holster contained a radio, baton and O/C spray. He said Mr Vivoda would have been searched. Until being handed over to the Ringwood staff, police protocol was that the arresting officer was responsible for the welfare and custody of a prisoner. At the time, Senior Constable Walters was in charge of the Ringwood reception area of the police station. Initially, Mr Vivoda’s demeanour was quiet and compliant. He could not recall very much conversation. At one point, Mr Vivoda appeared to become aware that he was in a police station, and said:
“You can’t lock me up, no way. If you lock me up, there will be trouble.”
[8]As per photograph – Exhibit D1/2 R
32 Mr Vivoda started to walk around the area and used his hands to gesticulate. Mr Kealy could not recall what he was saying. Mr Kealy was leaning on the counter filling out bail and charge forms. He then described what occurred as follows:
“Q:Whilst you were at the custody counter what was the next thing that happened?---
A:I was leaning on the counter filling out his charge and bail and out of the corner of my eye I just saw Mr Vivoda lunge at me.
Q:All right and what was your reaction to that?---
A:I took a step back and punched him in the face.
Q:And when you say he lunged at you can you describe how it was that he lunged at you?---
A:He lunged towards my right hip, um. I felt his hand knock against my right thigh and that’s when I stepped back. And my – my – my first thought that he was going for a – for my firearm so, as I said, I stepped back and punched him in the face.
Q:At the time you felt this contact with your right hip to the time you punched him in the face, what period of time do you recall it being?---
A:A split second.
Q:You say you thought he was going for your firearm?---
A:Sir.
Q:But you’ve already told his Honour that you had already checked your firearm in?---
A:That’s correct.
Q:So how do you explain that thought process if you didn’t have a gun on your hip?---
A:It didn’t occur to me that I'd already lodged it in. Um, that’s where my firearm is when I'm carrying it when I'm at work. Um, it was just my first thought, he’s going for my right hip.
Q:From the time you heard him say – become upset about being locked up?---
A:Yep.
Q:- - - and if he’s locked up there’s going to be trouble, those – that conversation you attribute to Mr Vivoda, what period of time lapse was there between him saying those words to the time when you saw him lunge towards you?---
A:Maybe ten – five, ten seconds maybe.
Q:You can’t be more particular?---
A:No, no, I can’t.
Q:All right. Was there anything about Mr Vivoda’s conduct or demeanour before he lunged that gave you the impression he would do that?---
A:No, there wasn’t, no.
Q:How did it make you feel when Mr Vivoda lunged towards you?---
A:I was concerned for my – for my safety for my welfare. I didn’t know what his intention was.
Q:Right. So you punched in the face?---
A:Yes, I did.
Q:How would you describe the punch?---
A:Hard. … .”[9]
[9]T465-6
33 The punch he delivered was hard with his right clenched fist and hit Mr Vivoda to his left cheek. The punch was intended to be hard. Also, he reached out with his left hand and touched Mr Vivoda on the right arm. He was trying to control him.
34 Mr Vivoda stopped coming forward as a result of the punch. Mr Gundrill and he took Mr Vivoda back against the wall and sat him down. Mr Kealy said he did not laugh and did not recall anyone else laughing.
35 He described the training and instruction that he had received as a police officer in defensive tactics. It was taught at the Police Academy, and then a refresher course known as “OST Training” was conducted for two days, twice per year. The refresher course covered a range of areas including defensive tactics. Officers were trained in the use of sprays, batons and unarmed combat. He was taught that if an officer felt that he was being threatened or assaulted, then he was told to strike as hard as he could, which is what he did. He was also instructed if an offender sought to grab his firearm, the first response was to create a distance between himself and the offender. This could include to run away or to move his body in a way so as to get some time. Then the response was to strike back.
36 Mr Kealy was shown the footage, and described a number of other officers who were present. He said by the time of the incident, Senior Constable Walters had custody of Mr Vivoda. He could not explain why Mr Vivoda at one point appeared to pull his pants down. At another point, Mr Gundrill assisted Mr Vivoda to remove his shoes, which accorded with police protocol. According to the footage, it was at about 2.41pm and 34 seconds that Mr Vivoda exclaimed that there was no way he would be locked up.
37 Mr Kealy said that Mr Vivoda had asked for medical assistance but that the ambulance had said he required no medical attention. Mr Kealy confirmed that he had hurt his right wrist in the incident and had submitted a WorkCover claim form. The footage showed Mr Kealy leaving the room. He did not have any further communication with Mr Vivoda until the Magistrates’ Court proceedings on 29 September 2008. After that proceeding, he did not see Mr Vivoda again until this Court case. He said he had no involvement in any investigation or charge of Mr Vivoda in relation to the sexual assault allegation, nor in relation to his use and cultivation of cannabis. He had no discussions with other officers about those matters.
38 He did not observe any injury to Mr Vivoda’s face at the station but had seen a cut to his forehead when he first saw him on the day.
39 Mr Kealy left the counter area in order to obtain additional forms because at that point he determined to charge Mr Vivoda with assault police for the lunge for his holster. He deemed the lunge was not accidental and that the other elements of assault were made out. He did not receive any advice, nor consult other officers to determine whether to charge Mr Vivoda with assault.
40 He was taken through various charge sheets which he completed, and the brief of evidence for the subsequent Magistrates’ Court attendance.[10]
[10]Exhibits D12C, D12D, D12E
41 Mr Kealy was asked whether he made notes in his “day book”. He said that he did, but he had lost the book and had been unable to locate it, despite looking everywhere.
42 Mr Kealy could not recall when he first obtained the footage, but it would have been around the time of the Court appearance in September 2008. At that Court appearance, the assault charge was dismissed on a ‘no case submission’ at the completion of the Crown case. The drunk in a public place charge was found proven but dismissed under s76 of the Sentencing Act 1991.
43 Mr Kealy was first aware of the complaint to the OPI one to two months after it was made. That complaint was investigated by Senior Sergeant Haines of Mooroolbark Police.[11] He did not speak to Mr Haines, nor was he interviewed by him. He was subsequently told the complaint was dismissed. Mr Kealy did not think he saw Mr Vivoda again after the Court appearance on 23 September 2008. He did not make, nor was involved in any investigations concerning Mr Vivoda after that time. He was not aware nor involved in the investigations as to an alleged indecent assault, nor possession of cannabis.
[11]In fact, it would appear that while the initial complaint was made to the OPI, the investigation was undertaken by the Ethical Standards Department (ESD) of Victoria Police pursuant to police protocols.
44 Mr Kealy was then cross-examined. He could not explain how it was that his day book became lost and that he could not find it. He could not give an explanation as to why his statement in the brief was undated and unsigned. He investigated that statement on the police computer system which indicated when documents were created, modified or last accessed. The records showed that the last modification was on 3 April 2008. In 2010, Mr Kealy created an “old brief folder” and moved the Vivoda brief into that folder. That was shown on the police computer.
45 He was asked about his recollections of what occurred at the time of the incident. He said he was first aware that there was no gun in the holster within a couple of seconds of the incident. It was ingrained into the police to take the pistol off and hand it to station staff. He could not recall whether he saw signs to that effect in the station. He did not have a belief as to what Mr Vivoda’s intention was. He was aware that Mr Vivoda had been guilty of an assault police and a firearm grab in the past. He thought he had recorded what had occurred in his day book, and everything was on the running sheet.
46 He did not give Mr Vivoda the opportunity to answer the allegations about assault police. He did not think it was necessary. He had been told to give suspects the opportunity to respond. He could not explain why he had not done this with Mr Vivoda.
47 He had a conversation with Mr Vivoda the next day. He told him it was nothing personal. Mr Vivoda rang to ask why he had been charged with assault. Mr Kealy said words to the effect, “You went for me, you went for my holster …”. Mr Kealy said it was a deliberate act of Mr Vivoda to grab towards his holster. He was convinced Mr Vivoda was going to do him harm and that he was lunging at his right hip. Mr Vivoda was pretty drunk and not totally steady on his feet, although he got out of the van unaided. He agreed that Mr Vivoda would not have sobered up in the hour between the police first arriving and the time of the incident.
48 Mr Kealy agreed that Mr Vivoda was considerably smaller, both in height and weight, than he was. He was shown a similar gun belt and indicated there was a clip across the top of the gun when it was placed in the holster, with a metal clip. This would have to be released before the gun was removed. Further, the gun would have to be pulled forward and out because there was a spring mechanism.
49 It was put to Mr Kealy that Mr Vivoda was trying to get past him and leave the police station. Mr Kealy accepted there was nothing inconsistent in Mr Vivoda’s conduct, with that version. He accepted the contact with his right hip area may have been accidental. He accepted the best way to determine that was to ask him.
50 Mr Kealy was taken to the “use of force” form[12] and to the amendment at the end of the document where the words “gun holster” were deleted and “equipment belt” was substituted. He thought that was because the data collection officer may have amended it to comply with a category requirement of the police computer.
[12]CB 96-97
51 At the time of the incident, Mr Kealy said Mr Vivoda was moving across him, towards his right side. His left arm was holding Mr Vivoda at bay. He accepted that he took a step back and at that point Mr Vivoda was not near his right hip and was three to four feet away. He said Mr Vivoda was still a threat. He acknowledged that Mr Vivoda was unarmed, was much smaller, and there were other police around. He said Mr Vivoda was still coming forward. He acknowledged that the punch he threw may have been lethal. He justified the punch on the basis of the police training he had had in the past. He could not produce any document to confirm such training.
52 He had studied karate for about six years, fifteen years ago. He had achieved ‘brown belt’ level and had been in a couple of tournaments.
53 He said he believed Mr Vivoda’s intention was to go for his holster. He was satisfied the charge of assault was complete. He acknowledged he had to prove intention, or recklessness. It was put to him that when he realised his gun was not in the holster, why would he pursue the assault police charge, given Mr Vivoda could not have had an intention to obtain the weapon? He said that at the time he believed Mr Vivoda was going for his weapon.
54 He said he had other options, including to kick Mr Vivoda, head butt him or push him. He did not push him as it was not an option which occurred to him at the time. He accepted that when his hand was drawn back about to deliver the punch, that required an intention to strike Mr Vivoda. At that time, Mr Vivoda was not near his gun, although that did not occur to him.
55 After the incident, he did not ask Mr Vivoda how he was feeling. He could not recall any enquiries made as to Mr Vivoda’s welfare. He agreed that his training in the past had indicated to put as much distance as possible between himself and an assailant, including to run away or move back, or twist his body. Mr Kealy said he was 6 foot 1 inch and 110 kilograms, although now was more, about 120 kilograms.
56 At the time he put the brief together, it included only his statement, and not the statements of other officers. This was because at the time it was unknown whether the charges would be defended and it was normal practice only to provide his statement up to the contest mention stage.
57 He acknowledged he did not record the statement by Mr Gundrill that he heard Mr Vivoda say “I've gone for police pistols before”. He acknowledged that was a significant matter but that he had made no note of it. He was surprised Mr Gundrill had not told him earlier.
58 Mr Kealy was aware of the ten principles taught by the police in relation to the use of force.[13] He accepted that there should be a de-escalation of the violence if possible, and any response had to be reasonably necessary at the time.
[13]Exhibit 13
Evidence of Leading Senior Constable Dennis Gundrill
59 He had been a police member since 1999. He described the scene when he and Mr Kealy arrived with the ambulance officers present, when they first encountered Mr Vivoda on 2 April 2008. In discussion with the ambulance officers, they said his injuries appeared to be alcohol-related. Mr Vivoda gave his name and address, although his speech was slurred. He said no one was at home. Mr Gundrill formed the impression that Mr Vivoda was drunk because he could smell alcohol on his breath, his eyes were glazed, he was very unsteady on his feet and found it difficult to move.
60 He could not recall dealings of any sort with Mr Vivoda before that day, or any conversation with Mr Kealy about Mr Vivoda. At the time, there was a mobile data unit in the police car and when Mr Vivoda’s details were typed in, various information was available. The information was limited; for example, there may be a reference to assault police but only the date as to when that occurred and no further detail would be given. There was a section for criminal history, but Mr Gundrill did not look at that. There were no ‘warning flags’ shown.
61 At the station, he and Mr Kealy lodged their firearms. Mr Vivoda had fallen asleep in the van. He described what occurred at the police station. At one point, he heard Mr Vivoda say words to the effect “If you lock me up, there will be trouble”. Mr Vivoda also at one time said “I have gone for police pistols and will do it again”. Mr Vivoda was mumbling a lot and it was difficult to understand what he was saying. He was agitated, moving back and forth from where he was supposed to stand on the foot marks. The statement about going for firearms, Mr Gundrill did not take as being serious at the time, as Mr Vivoda had not shown any aggression to anyone. He told Mr Vivoda: “Settle down. Pull your head in. We’ll get this over and done with and get you out of here.” He said that statement was made, he would guess, about 23 seconds before the punch was delivered.
62 After he told Mr Vivoda to settle down, he was initially compliant but then moved to the counter, protesting.
63 In relation to what then occurred, he said the following:
“Q: … The altercation with Mr Kealy occurs, but do you know what he did in between times?---
A: Um, initially he didn’t do anything. He was compliant with the request. He stayed there and, um, some time after that he moved forward to the counter again, um, protesting about something which I couldn’t understand and, um, a short time after that he lunged towards, um, Senior Constable Kealy.
Q: All right. Now not what you saw on the footage?---
A: Yeah.
Q: … What you can remember can you just describe as best you can this lunge that you’ve just talked about?---
A: Um, well, he moved forward and I remember him putting his left hand out first and then bringing his right hand towards his left hand and moving towards, um, Senior Constable Kealy’s hip.
Q: What you have just physically demonstrated in the witness box is both hands with fingers pointed forward?---
A: Yes.
Q: Hands are vertical?---
A: Yes.
Q: … But pointed directly ahead?---
A: Yes.
Q: And you indicated a movement forward with his back - - - ?---
A: Forward.
Q: … And shoulders?---
A: Yes.
Q: All right and can you remember where the hands went to when he lunged as you say, lunged forward or moved forward?---
A: The last I recall seeing them they were roughly on, um, Senior Constable Kealy’s thigh area.
Q: All right and could you see this from where you were positioned?---
A: Yes I could.
Q: And what was your reaction when you saw Mr Vivoda do that?---
A: Um, I moved towards Mr Vivoda and grabbed him by the, um, right shoulder I think it was, er, left shoulder. I grabbed him by the left shoulder and, er, he was struck then and, er, then I moved him back against the wall and slid him down the wall to a sitting position - - -
Q: All right. Can you be more particular about what you saw of that – of that punch?---
A: Um, I recall Mr Kealy’s left hand being out and he struck him with his right hand with a closed fist and to me it appeared that contact was made to the left cheek and left eye.
Q: All right and how would you describe the contact?---
A: Forceful, er, it moved, um, Mr Vivoda back as well as me dragging him back. Um, yeah, I'd say it was forceful - - -“
64 Mr Gundrill could not recall anything being said at the time. He saw red and swelling to Mr Vivoda’s left eye. He did not hear anyone laughing, nor any form of ridicule. Mr Vivoda was handcuffed and checked. He was muttering something unintelligible.
65 Mr Gundrill was shown the footage. He was asked when it was that Mr Vivoda made reference to reaching for guns before. At first he said it was at a point in the footage at 2.41 and 58 seconds. He said subsequently, that it was at 2.42 and 39 seconds.
66 He did not have his police issue notebook. It had been returned to his sergeant at an earlier time and he had not seen it again. He had a personal diary and day book but made no entries in either.
67 He could recall no discussion about Mr Vivoda being charged with assault police. After he and Mr Kealy left the Ringwood Police Station at about 4.30pm, he could not recall any discussions with Mr Kealy regarding the incident. Mr Gundrill completed the running sheet and the use of force form.[14] He made the typed entries on the use of force form, but not the handwritten entries. He did not know who made those. He did not make the change from “gun holster” to “equipment belt”.[15] He completed the form at Ringwood Police Station after the incident. He did not see it again until this Court case. It was given to his sergeant with the running sheet and according to Mr Gundrill, it was then forwarded to the Use of Force Registry. He did not recall any conversation with anyone from that Registry.
[14]D1/2D and D1/2P
[15]CB 98G
68 He kept no other notes of the incident.
69 He was taken to his statement.[16] It was prepared for the brief of evidence and made shortly before 15 July 2008. It was police practice for a corroborator to refer to an informant’s statement and to adopt it as true and correct. In this case, he had additional information, that being the statement by Mr Vivoda that “I have reached for police pistols before and will do it again”. That was the additional information he had. He had no other involvement in the preparation of the brief of evidence. He first saw the footage within the last several weeks. He was not told about the complaint to the OPI and did not recall any conversation with Mr Haines. He was, however, advised of the outcome of the OPI investigation. He did not recall, either at the time of the incident or when he made his statement in July 2008, of any knowledge of Mr Vivoda’s prior gun grab. He had not seen Mr Vivoda since the Magistrates’ Court hearing in September 2008. He had no knowledge of the police involvement regarding the cannabis charges, nor any indecent assault.
[16]Exhibit 14, CB 181-2
70 In cross-examination, Mr Gundrill accepted that he would have had a conversation with Mr Kealy regarding the statement of Mr Vivoda that he had grabbed for guns. That must have occurred before he made his statement. The alleged statement of Mr Vivoda was not recorded in any note, although he now acknowledged it was significant. He stayed on at the Belgrave Police Station for another four years, and Mr Kealy was there for another two years. He worked with Mr Kealy from time to time. He could not recall any conversation with him about the incident nor the statement made by Mr Vivoda.
71 He was taken to the use of force form.[17] He was unable to say as to how the officer who made the amendments in red Biro could have known what category to use.
[17]CB 98F-98J
72 He had been trained in a form of jujitsu about twenty years ago. It is a form of marshal arts centred on self-defence.
73 He confirmed in the course of evidence he said that when Mr Vivoda made the statement about grabbing for the gun, that it was 23 seconds before the punch was thrown. He was able to establish that from having gone through the footage earlier. He acknowledged that he made a mistake when he said, at 2.41 and 58 seconds, that that was the time when the statement was made. It was when Mr Gundrill was close to Mr Vivoda subsequent to that. He said that when he saw Mr Vivoda’s hands immediately prior to the assault, they were going towards Mr Kealy’s right thigh. He could not recall whether he grabbed Mr Vivoda before he was struck or after. He agreed that in Photograph 18 of the still photographs,[18] immediately prior to the blow being landed, that Mr Vivoda’s hands were not near Mr Kealy’s right hip.
[18]Exhibit 1
74 He accepted Mr Vivoda was drunk at the time and was smaller than Mr Kealy. He did not recall any conversation where Mr Vivoda asked for medical attention. He was asked as to Mr Vivoda’s conscious state. He said he assessed Mr Vivoda according to a “coma scale”. It was a verbal response scale used by the police. He said Mr Vivoda was conscious and capable of clear and intelligent thought. He was able to state his name. He had received medical attention from the ambulance officers. Mr Vivoda did not appear to be in and out of consciousness.
75 He accepted that if someone at the Use of Force Registry wanted clarification about the classification on the use of force form, he would be the likely person to consult. He did not act when Mr Vivoda made the gun comment, as Mr Vivoda had shown no form of aggression and was drunk and mumbling.
76 He acknowledged that the phrase “attempted pistol grab” on the patrol duty sheet[19] was a mistake and should have read “gun holster”.
[19]CB 101
77 He denied that he had concocted that part of his evidence to assist Mr Kealy. He was shown a document, being an extract from the Victoria Police Manual,[20] and accepted the ten principles to be applied when responding to incidents.
[20]Exhibit 13
Evidence of Senior Constable Thomas Juric
78 He presently is with the Operation Safety Unit. In April 2008, he was a Constable stationed at Ringwood. He did not know Mr Vivoda before 2 April 2008, although said he recalled something in the news about the incident subsequently. On 2 April 2008, he was on prisoner security duties. His recollection of the incident was hazy but he could recall it “a bit”. He recalled Mr Vivoda being brought in to the station for being drunk and then lunging towards the holster of the member, who stepped back and punched him. He did not recall much more. He recalled Mr Vivoda at some point saying something about “there’s going to be trouble”, or words to that effect. He did not think he had met Mr Gundrill nor Mr Kealy before the incident, although it was possible. He gave the following evidence:
“Q: What do you recall about the lunge that brings to mind the fact that there’s a holster involved?---
A: Er, well, it appeared to be a gun grab type attempt so – which is just the term that the organisation uses to describe when someone tries to grab your firearm whilst it’s in the holster.”[21]
[21]T735, L12
79 Immediately after the incident, he picked up an O/C foam canister in case it was necessary. He was taken to his statement made 2 July 2008.[22] He was requested to provide the statement by Mr Haines, who was looking into the matter for the ESD. The request did not come from Mr Kealy. He was not involved in the prosecution on 23 September 2008. The statement was prepared from his memory, and not notes.
[22]CB 190-191
80 The footage was played to Mr Juric, and he identified various officers present in the station.
81 In cross-examination, Mr Juric said that he did not make any record of the incident, probably because he was fairly junior and there were others around him who he thought would write it up. He was asked by Mr Haines as to what happened, and viewed the footage, he thought, at the Mooroolbark Police Station. He received various emails from Mr Haines. The initial request for a statement was as to whether there was any laughter at the time.
82 He was taken to various of the emails.[23] He agreed that the statement made by Josie Manlio[24] was, in respect of paragraphs 2 and 3, almost a complete copy of his statement.
[23]Exhibit 15
[24]CB 194-195
83 As to the incident, he said that he recalled the comment by Mr Vivoda to the effect that there would be trouble, and then Mr Vivoda lunged at Mr Kealy. He accepted that in the sequence of photographs[25] and from the footage, when he was to the left of Mr Kealy, he was unable to see his holster, until Mr Kealy moved one step backwards to throw the punch. He agreed that the movement of Mr Vivoda was to Mr Kealy’s right side, and was consistent with him trying to get past Mr Kealy. He said that he believed the photographs[26] showed signs which were present in the entrance and the custody area in 2008, with the exception of the bottom part of the photographs in Exhibit 10. He said if he had heard Mr Vivoda say words to the effect that he had reached for an officer’s gun before and would do it again, he would have applied handcuffs.
[25]Exhibit 1
[26]Exhibits 10 and 11
Evidence of Ambulance Officers Ms Emma Smith and Mr Brendan Noone
84 These officers attended Mr Vivoda when he was in Temple Road, Selby, earlier on the day. According to the records, the officers received a “case description” that:
“37 year old male states drinking this morning. Went to visit lady offering to do ‘naughty’ things to him. Got out of taxi. Windy, trees over road. Tripped. Locals called MAS.”[27]
[27]CB 211
85 A “vital signs survey” was undertaken which showed no abnormality. Mr Vivoda had told the officers he had been drinking and there was nothing to indicate that he had suffered an injury, in particular a head injury. The notes taken at the time record Mr Vivoda appeared alcohol affected.
Evidence of Sergeant Mark Manassa
86 He is a serving police officer and has been a member of the Police Force since 1986. He was the custody supervisor in charge of the custody room at the Ringwood Station on 2 April 2008. He was responsible for the custody area and the watch house. There were a number of other officers present on that day. When Mr Vivoda was brought into the custody area, he was in a separate room, the watch house area, undertaking other tasks. He said he saw something in the corner of his eye, a type of scuffle in the custody area. The door was closed between the custody area and the watch house. He had a reasonable view through the window. He said he saw the remnants of a scuffle.
87 He then looked up and saw two members holding Mr Vivoda. He did not hear anything. Within four or five seconds, he entered the custody area and saw Mr Vivoda on the floor. He did not recall what was said by Mr Vivoda or other officers. He heard no laughter nor ridicule.
88 He then had a conversation with Mr Kealy. Mr Kealy said that Mr Vivoda had lunged at him and that he, Mr Kealy, had hit him. Nothing more was said.
89 He then had a conversation with Mr Gundrill. Mr Gundrill told him that Mr Vivoda had been stumbling in the Selby area and was arrested for being drunk. Mr Manassa asked about scratches to Mr Vivoda’s face and that his clothing was dishevelled. Mr Gundrill said this had arisen before the police intervention. Mr Gundrill said:
“ … Mr Vivoda had – without – unexpectedly and suddenly lunged directly at Senior Constable Kealy towards his holster and as a result Senior Constable Kealy, um, hit Mr Vivoda in the face. …”[28]
[28]T805, L20
90 Mr Manassa was asked:
“Q: Was there any further description given by Mr Gundrill about the nature of the lunge?---
A: Yes, it was a lunge towards his – it was – it was in a very close proximity, it was a direct unprovoked lunge which caught, um, Senior Constable Kealy off guard, straight to his holster – around the holster area.”[29]
[29]T806, L3
91 Mr Manassa then had a further conversation with Mr Kealy. He enquired further about the incident. Based upon the information provided, he recommended to Mr Kealy that an assault charge be laid. Mr Kealy agreed. He had no further discussions with either Mr Kealy or Mr Gundrill about the incident.
92 In Mr Manassa’s opinion, Mr Vivoda did not require medical attention after the punch. He asked Mr Vivoda if he had any illness or injuries. He did not recall the response.
93 He was taken to various documents raised by the police as a result of Mr Vivoda’s attendance at Ringwood. These included the electronic attendance record.[30] He thought the entries at 14.41, 14.43 and 15.00 were made by him.[31] There was no reference in that document to Mr Vivoda having lunged towards Mr Kealy’s holster. Rather, it was recorded Mr Vivoda had “assaulted member”.
[30]CB 143-151
[31]CB 148
94 He was then taken to the police electronic custody record.[32] The entry at 14.40 was made by Senior Constable Walters.[33] Again, the document did not record any reference to Mr Vivoda lunging towards Mr Kealy’s holster. Rather, it described the activities as “suspect was aggressive and lunged at member”.
[32]CB 152-167
[33]CB 153
95 He was taken to the incident fact sheet.[34] That document was completed by Acting Sergeant MacGregor. It described the incident as “offender has lunged towards member LSC Kealy who has defended himself stepping back and then striking the offender with clenched fist”.
[34]CB 103
96 Mr Manassa said that he also made notes in his official police day book.[35] The relevant part of the entry read:
“1440 – charge counter – suspect in custody (Vivoda) – obs (observed) suspect involved in scuffle with member. Inquiry – drunk in public place – aggressive at counter and suddenly lashed out at member prior to my arrival (not informed by watch house or gaol on arrival) suspect – drunk – checked charge sheet (previously busy in watch house re tasking and resources close to shift changeover re violent storms and winds occurring today and into evening) – (prior to police arrival) – possible facial bruise – informed by Kealy re aggression by suspect and UOF. Injury to Kealy’s hand. Directed suspect be handcuffed – search completed in holding cell – cuffs then removed. Suspect lodged – brief Acting Sergeant MacGregor re use of force. IFS/265 notified. Note, assault police and member welfare – to attend same. All correct.”[36]
[35]CB 213, Exhibit 17
[36]T815, L28
97 It is to be noted there is no reference in this day book to Mr Vivoda lunging at Mr Kealy’s holster.
98 Mr Manassa said that he was then asked by Mr Haines to make a statement. He made a handwritten statement which was subsequently typed.[37] He was asked to direct the statement to whether he heard any laughter or ridicule of Mr Vivoda.
[37]CB 183-185, Exhibit 16
99 In cross-examination, Mr Manassa said that when he used the words in his notebook “lashed out”, that meant there was a lunge towards to Mr Kealy’s holster. He did not put in any of the reports that he was told by Mr Kealy that he was in fear of Mr Vivoda. Mr Manassa said that he would not expect the warnings set forth on the police attendance sheet[38] to appear in the LEAP records available to members accessing the LEAP system in a police motor vehicle.
[38]“Use of force, violent, carry weapons” – CB 148
Evidence of Mr Anthony Walters
100 He was member of the Police Force until 2012, when he resigned. He was present at the Ringwood Police Station from 1999 until July 2008. On 2 April 2008, he was undertaking gaoler duties. He is seen in the footage. There was a standard station instruction that no member could carry firearms in the custody centre when a prisoner was present. He recalled Mr Vivoda being escorted into the charge counter. He appeared to be okay. He was talking but a bit agitated. His tempo was up and down and he was a bit unsteady on his feet. His eyes were glazed.
101 Mr Kealy was doing the paperwork and Mr Walters was entering records in the police computer system. He gave the following evidence as to the incident:
“Q: Did you see something happen after Mr Vivoda had been taken to the custody counter?---
A: Yes.
Q: Just tell his Honour what you saw?---
A: I was at the computer, which is at the far left hand end of the charge counter. Um, I’m just entering details in um, and during the couple of minute period while Mr Vivoda and Mr Kealy were talking, um, the tempo rose up again and then the thing that I remember is he just said – Mr Vivoda said, ‘I’ve had enough, I fucking going’, bang, and then just went to barge his way past Mr Kealy, who is standing, leaning at the right hand hip – the right hand of the bar at the far end of the charge counter.
… and when he’s done – when he said that he’s just gone to barge past, um, Leading Senior – or Senior Constable Kealy and Senior Constable Kealy has then gone back and then hit the – hit Mr Vivoda … .”[39]
[39]T850-851
102 Further:
“Q: You then saw him – can you just describe that again? You said, ‘barged past’. Can you be more – can you be more descriptive about how you say you saw him try to barge past Mr Kealy?---
A: Well, it was as if he just sort of didn’t worry about going around him. He’s just sort of gone straight past him. Mr Vivoda was at the charge counter next to Mr Kealy while Kealy – well, Senior Constable Kealy was writing out the paperwork or doing something, asking him questions, and he’s gone to barge past he’s just gone to Senior Kealy’s right hand side as if to go towards the exit door ... .”[40]
[40]T852
103 Mr Walters said Mr Vivoda moved towards Mr Kealy’s right side. Mr Vivoda’s right side made contact with Mr Kealy’s right side.
104 Further:
“Q: Now, when you say contact, can you be more descriptive about how much of Mr Vivoda’s body made contact with how much of Mr Kealy’s body?---
A: I wouldn’t say it was a charge into him. It was just as if he was barging past him on the side. They’d made contact.”[41]
[41]T853, L13
105 He could not recall whether there was any discussion about charges being laid against Mr Vivoda. He made various entries in the attendance register and the custody record. He said reference in the record to a full search may not have meant Mr Vivoda had a full strip search. He could not recall any laughter nor ridicule.
106 In cross-examination, he did not believe Mr Vivoda apparently wanted medical attention. If he had heard Mr Vivoda say words to the effect that he had gone for police pistols before and would do it again, then that would stick in his mind. He did not recall hearing that.
Evidence of Sergeant Craig MacGregor
107 He entered the Police Force in 1978 and worked at Ringwood Police Station from 1996. He worked a shift from 3.00pm till 11.00pm on 2 April 2008 as the custody area supervisor. He was not present in the custody area at the time of the incident, and was briefed afterwards by Mr Manassa. He appears in the footage after the incident. He checked on Mr Vivoda’s welfare while in the holding cell. He also spoke to Mr Kealy regarding the injury to his right hand. Mr Kealy did not require medical attention.
108 He completed the incident fact sheet.[42] Under “circumstances” the following was recorded:
“Offender Dennis Vivoda arrested for drunk by Belgrave Police and conveyed to Ringwood to be lodged. Whilst being processed at charge counter offender has lunged towards member LSC Kealy who has defended himself stepping back and then striking the offender with a clenched fist. This halted the attack and other members assisted to subdue offender. Offender was checked for injury and at time inspection had small bruise under left eye. He was then lodged in cell. Member Kealy sustained sore right wrist. Undetermined extent of injury at time of this report.”
[42]CB 103
109 Mr MacGregor could not recall who had given him that history.
110 At the time, police protocol required that if a person was bailed, the bail terms be explained to them and, further, a set of questions were asked to determine whether the person was satisfied with the police treatment. The documents indicated Mr Vivoda was released at 6.43pm. He recalled Mr Vivoda said he was satisfied with the treatment from police. The two charges and the bail details were explained. At the time, Mr Vivoda enquired as to the assault as he did not recall the incident; that is, being struck by Mr Kealy. He said he wanted to apologise to the member. Mr MacGregor informed him that Mr Kealy was not stationed at Ringwood but that he should ring the Belgrave Station the next morning. Mr Vivoda said he would ring.
111 In general terms, Mr Vivoda described to Mr MacGregor what had occurred in that night and said that he had been electrocuted by a cable, and showed Mr MacGregor the palm of his hand. Mr MacGregor offered to call an ambulance but Mr Vivoda declined. According to the custody register,[43] Mr Vivoda was observed in the cells at 15.25 and 18.21 on 2 April 2008.
[43]CB 163
112 In cross-examination, he acknowledged that had he heard words to the effect from Mr Vivoda that he had “gone for officers’ pistols before and would do it again,” he would have recorded that.
Evidence of Mr Allan Langley
113 He is now a school teacher, but was a police member from 1994 to 2010. He worked at the Ringwood Police Station, including on 2 April 2008. At the time of incident, he was in the watch house. His shift started at 3.00pm.
114 He recalled a verbal altercation and heard an increase in volume. He said he recalled Mr Vivoda being agitated and aggressive. He did not see anything of the incident until he saw Mr Vivoda being held on the ground. He arrived at the scene 15 or 20 seconds afterwards. He recalled a conversation with Mr Kealy where he told him to ice his hand because it hurt. He did not see any visible injuries on Mr Vivoda. He checked Mr Vivoda on several occasions and noted he was asleep in the cell. The custody register referred to him attending at 15.25 and 18.21. He did not hear any laughter towards, nor ridicule of Mr Vivoda.
115 In cross-examination, he acknowledged that given he was not there immediately after the incident, he could not have heard any laughter at that time.
Evidence of Ms Josephine Manlio
116 On 2 April 2008, she was a cadet officer and had not graduated from the Police Academy. She was at the Ringwood Police Station on work experience and to observe what occurred. At the time of the incident, she was in the custody area. She said she recalled Mr Vivoda entering the area and that he appeared intoxicated. She described the incident as follows:
“A:… Well, there was what appeared to be an intoxicated male prisoner then there were the two members side by side with Mr Vivoda. At some stage Vivoda became agitated for no apparent reason and he lunged towards the member going for his holster and then the Belgrave member stepped back and punched him or hit Vivoda on the head … .
Q:You say that he was becoming …?---
A:Agitated, yeah.
247 While it is clear that no medical assistance was offered to Mr Vivoda before the punch was struck, he had been assessed by ambulance officers earlier in the day, and they were satisfied had suffered no injury. While Mr Vivoda was drunk in the station, I am not satisfied there was anything sufficient to indicate to the officers he required medical care.
248 After the punch was thrown, Mr Vivoda was moved backwards, and held by the officers back against the wall. The blow was delivered with considerable force. Mr Kealy was aware that a blow of that type could cause significant injury. I am of the view that he ought to have immediately arranged medical assistance for Mr Vivoda. While I accept the evidence of Mr MacGregor that he checked Mr Vivoda while in the holding cells on a number of occasions, asked him if he had any concerns about the manner in which he was treated at the station and enquired whether he wanted an ambulance, Mr Vivoda’s action in wanting to leave the station as soon as possible, given what had occurred, was understandable. Even accepting there is no evidence Mr Vivoda suffered any head injury, aside from some bruising and a blackened eye, Mr Vivoda should have received medical attention. Further, there was no apology provided to Mr Vivoda then or at a later time. I accept this founds a basis for aggravated damages.
249 I have dealt with the conduct of the officers in instituting and maintaining the proceeding on the basis that Mr Kealy believed he had been assaulted. Any damages in that regard fall to be considered under malicious prosecution.
250 In evidence, Mr Vivoda did claim that in a conversation with Mr Kealy the next day, he was told by Mr Kealy that because of his conduct he would be prosecuted and likely to go to gaol. However, I am not satisfied that conversation founds a basis for aggravated or exemplary damages.
251 There is merit in the submission that the blow was delivered with significant force, when Mr Vivoda was known to be drunk and was little prepared for the strength of the blow. While Mr Kealy had little time to consider and react, his actions were out of proportion to the threat, and constituted a breach of the trust the public places in the police force. That allegation is made out and founds in aggravated damages.
252 Even if false entries were made in various of the documents, and I am not necessarily satisfied that is the case, the ramifications to Mr Kealy and Mr Gundrill lie in the criminal arena, and ought not be reflected in an award of aggravated or exemplary damages to Mr Vivoda. Likewise the allegation Kealy and Gundrill gave false evidence in the Magistrates’ Court.
253 Finally, there is no evidence of Mr Kealy’s involvement in the charges relating to sexual assault or cannabis cultivation. It is supposition on the part of Mr Vivoda without any basis.
254 I am not satisfied there is any basis for an award of exemplary damages as a deterrent to other officers. While I am satisfied Mr Kealy did not have an honest belief, upon reasonable grounds, that Mr Vivoda was attempting to grab his pistol, and further, that his response was out of proportion to the threat he faced, I am not satisfied that warrants particular punishment or retribution.
255 However, the manner in which Mr Vivoda was treated in the custody area of the police station in the aftermath of the punch does, and the force by which the blow was delivered, in my view, constitute conduct of an insulting nature and in contumelious disregard of Mr Vivoda’s rights and ought sound in an award of aggravated damages.
256 I assess aggravated damages in the sum of $20,000.
257 The damages are thus calculated as follows:
General Damages: $65,000.00
Past Medical and Like Expenses: $5,554.50
Future Medical and Like Expenses: $8,750.00
Past and Future Economic Loss: $10,000.00
Malicious Prosecution $20,000.00
Aggravated Damages $20,000.00
__________
$129,304.50
__________
Liability of the Third Defendant
258 Ms Hodgson, on behalf of the State of Victoria, supported the submissions of Mr Gipp in relation to liability of the first and second defendants, and as to any loss and damage suffered by Mr Vivoda.
259 She accepted that if Mr Kealy’s defence of self-defence was not found proven and damages awarded as a result, then any liability for such damages ought be transferred to the State, pursuant to s123 of the Police Regulation Act. That included any damages awarded for malicious prosecution or aggravated damages, as both are compensatory in nature. Accordingly, an order will be made that liability of the first defendant for damages will be transferred to the third defendant.
260 Mr Vivoda’s claim against the second defendant fails.
261 I shall consult with counsel as to the appropriate orders to be made.
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