Wang v State of NSW

[2018] NSWDC 375

District Court

New South Wales

Medium Neutral Citation:

Wang v State of NSW [2018] NSWDC 375

Hearing dates:

7, 8, 9, 10, 11 March, 2, 3, 4, 5, 6, 10, 204 May & 26 August 2016, 23 February 2018, (Last submissions 13 March 2018)

Date of orders:

07 December 2018

Decision date:

07 December 2018

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff against the defendant, including interest, in the amount of $48,598.89;

 

2. The exhibits may be returned;

 

3. I will hear the parties on the question of costs;

 4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – intentional torts – police officers – alleged wrongful arrest, assault, battery, wrongful imprisonment following arrest pursuant to a warrant – allegation of wrongful arrest not pressed; DAMAGES – assessment of general compensatory and aggravated damages for an extended period of wrongful imprisonment due to a delay in bringing the plaintiff before the Court in accordance with the terms of the warrant for his arrest

Legislation Cited:

Civil Procedure Act 2005, s 98, s 100,
Crown Proceedings Act 1988, s 5
Law Enforcement (Powers and Responsibilities) Act 2002, s 101, s 201, Pt 9
Law Reform (Vicarious Liability) Act 1983, s 8
Local Court Rules 2009, r 1.3, r 7.1
Uniform Civil Procedure Rules 2005, Sch 7 cl 5(1)(c), r 31.27(1)(c)

Cases Cited:

Browne v Dunn (1893) 6 R 67
Coyle v State of New South Wales [2006] NSWCA 95
Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269
Ruddock v Taylor [2005] HCA 48; (2005) 222 NSWLR 612
Smith v State of New South Wales [2016] NSWDC 55
State of New South Wales v Smith [2017] NSWCA 194
Williams v The Queen [1986] HCA 88; (1986) 161 CLR 279

Category:

Principal judgment

Parties:

Jia Nong Wang (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Mr M McAuley (Plaintiff)
Ms B Nolan (Defendant)

  Solicitors:
Blake Lawyers (Plaintiff)
Crown Solicitor for NSW (Defendant)

File Number(s):

2014/253035

Publication restriction:

None

Judgment

Table of Contents

Factual background and nature of case	[1] – [9]
Trial overview	[10]
Issues	[11] – [14]
Chronological background	[15] – [16]
Warrant ordering the arrest of the plaintiff	[17] – [18]
Evidence overview	[19] – [21]
Witness testimony and related credit impressions	[22] – [163]
The plaintiff	[23] – [75]
Ms Wendy Wang	[76] – [79]
Ms Bao Feng Guo	[80] – [84]
Senior Constable Kachoyan	[85] – [89]
Senior Constable Collis	[90]
Senior Constable Zietsch	[91] – [92]
Acting Sergeant Puglisi	[93]
Senior Constable Westwood	[94]
Leading Senior Constable Leahy	[95] – [103]
Senior Constable Wild	[104] – [122]
Senior Constable Gergie	[123] – [147]
Sergeant Tighe	[148] – [163]
Medical and allied evidence	[164] – [216]
General practitioner	[168] – [171]
Psychologist	[172] – [174]
Psychiatrists	[175] – [192]
Cardiologists	[193] – [213]
Treatment of plaintiff’s elevated blood pressure during the trial	[214] – [215]
Legislation	[217] – [218]
Applicable legal principles	[219] – [223]
Issue 1 – Plaintiff’s facility for communicating in English	[224] – [232]
Issue 2 – Alleged wrongful arrest, assault and battery	[233] – [242]
Issue 3 – Timelines of the plaintiff’s presentation to the Court	[243] – [290]
Issue 4 – Wrongful imprisonment	[291] – [299]
Issue 5 – Cause of plaintiff’s adverse health events	[300] – [304]
Issue 6 – Assessment of damages	[305] – [336]
Alleged assault and battery	[306]
Wrongful imprisonment, including aggravated damages	[307] – [325]
Claim for exemplary damages	[326] – [329]
Future out-of-pocket expenses	[330] – [332]
Past out-of-pocket expenses	[333]
Interest	[334] – [335]
Summary of damages assessment	[336]
Disposition	[337]
Costs	[338]
Orders	[339]

Factual background and nature of case

1. At about 11.40am on Friday 2 August 2013 the plaintiff, Mr Jia Nong Wang, then aged 52 years, a naturalised Australian citizen originally from China, was arrested by two police officers at his home in Beecroft and taken to Ryde Police Station.

2. At that time those officers executed a warrant that had been issued in the Local Court on 24 July 2013 requiring that the plaintiff be arrested and brought before the Court in relation to an alleged incident of violence between him and a Mr Brandon Chung Lee at the premises of the Consumer, Trader and Tenancy Tribunal of New South Wales (“CTTT”) on 9 May 2013.

3. The New South Wales Police Force Event Report numbered E51377612 described an alleged attempt by “2 Asian gangsters” threatening Mr Lee and attempting to grab his bag: Exhibit “J”. The warrant ordering the arrest of the plaintiff emanated from those underlying events. These proceedings do not require that those underlying allegations be examined for the purpose of making findings of fact.

4. The sole purpose of the warrant requiring that the plaintiff be arrested and brought before the Court was so that an apprehended violence order (“AVO”) could be served on him and a court date fixed to determine that matter: Exhibit “12”, p 77. The arrest warrant was obtained in light of some earlier difficulties experienced by police officers in locating and serving the plaintiff with those papers.

5. The plaintiff, who had no prior criminal record, and no prior instances of arrest, is very much aggrieved by the events of his arrest, and claims that after his arrest there was an unreasonable delay on the part of the arresting police officers in taking him before a court within a reasonable time. It was not until 6.20pm on Saturday 3 August 2013, a little over 30 hours after his arrest, that he was released after being presented to the Court, at a hearing conducted by an audio-visual link (“AVL”) from Correctional facilities at the Surry Hills Police Centre to the Parramatta Bail Court: Exhibit “12”, p 87.

6. The delay in bringing the plaintiff before the Court was in circumstances where the senior arresting police officer fairly conceded that beforehand, he had not really paid attention to the wording of the warrant which was in a standard form, a material part of which commanded the arresting police to bring the plaintiff before a court: T417.49.

7. This occurred in circumstances where, over the course of several hours of continued custody of the plaintiff, the Custody Manager at Ryde Police Station had, at approximately 15 to 30 minute intervals, been enquiring of the arresting officer as to processing the requirements of the warrant: T529.36 – T530.24. This also occurred in circumstances where all officers concerned knew that the plaintiff needed to be presented to a court as soon as was reasonably practicable.

8. The Custody Manager ultimately conceded that after 12.38pm on the day in question, there was no good reason for failing to bring the plaintiff before the Court: T527.31. This also occurred in circumstances where there had been no proper plan, or reasonably practicable plan, to bring the plaintiff before the Court: T538.19 – T538.22.

9. The plaintiff brings this action for damages for the alleged intentional torts of assault, battery and wrongful imprisonment against the defendant, the State of New South Wales, pursuant to s 5 of the Crown Proceedings Act 1988, and s 8 of the Law Reform (Vicarious Liability) Act 1983. The Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”) applies to these proceedings.

Trial overview

10. The trial did not proceed smoothly. It was initially estimated to take 5 – 7 days. It proceeded over a total of 12 hearing days, with the adoption of many contested positions, and unnecessary exchanges between counsel, which did not assist the progress of the case. There was a hiatus in the trial because the plaintiff experienced an adverse health issue whilst under cross-examination. Despite there being many matters of contention and dispute raised at the trial, not all of those matters remained relevant to the pivotal issues calling for decision. The final tranche of written submissions closed on 13 March 2018.

Issues

11. The oral evidence in this case gave rise to numerous factual disputes between the plaintiff and the defendant. Amongst those matters was the extent of the plaintiff’s claim of limited ability to understand and communicate in the English language. He gave almost all of his evidence with the assistance of a Mandarin interpreter.

12. Each of the parties provided different formulations of the issues calling for decision: MFI “2” (Plaintiff); MFI “3” (Defendant). The array of contested factual issues in this case centred around the interactions between the plaintiff and the arresting police officers between the time of their entry onto his premises in Beecroft up until the time when he was transferred into the custody of Corrective Services officers at the Surry Hills Police Centre facility. The plaintiff claimed he had to endure much indignity whilst he remained in custody.

13. Where relevant, those disputed matters of fact will be considered and resolved in the context of the consideration of the central issues calling for decision in the case. Following my review of the pleadings, the evidence and the submissions of the parties, I consider that the central issues arising for determination can be distilled as follows:

1. The plaintiff’s ability to communicate in the English language and the extent and the adequacy of communications that occurred between the arresting police officers and the plaintiff in the course of his arrest and detention. My findings on this issue appear between paragraphs [224] to [232] of these reasons;

2. The circumstances of the arrest of the plaintiff and whether this amounted to a wrongful arrest, or an unlawful assault and battery upon him. In final submissions the plaintiff no longer pressed the claim of wrongful arrest. My findings on this issue of whether there had been an assault or a battery appear between paragraphs [233] to [242] of these reasons;

3. The timeliness of the plaintiff being presented before the Court pursuant to the terms of the warrant under which he had been arrested, and the reasons for him not being released before about 6.15pm on Saturday, 3 August 2013, some 30 hours and 30 minutes after his arrest. My findings on this issue appear between paragraphs [243] to [290] of these reasons;

4. Whether the detention of the plaintiff from some time after his arrest and until he was ultimately released pursuant to a court order amounted to wrongful imprisonment. My findings on this issue appear between paragraphs [291] to [299] of these reasons;

5. Whether significant aspects of the plaintiff’s adverse health issues are causally related to his detention such that these matters should be reflected in an assessment of damages in his favour. My findings on this issue appear between paragraphs [300] to [303] of these reasons;

6. The assessment of the plaintiff’s entitlement to damages. My findings on this issue appear between paragraphs [304] to [336] of these reasons.

14. The plaintiff bears the onus of proof on all of the positive assertions he makes. The defendant bears the evidential burden for the justification of the plaintiff’s detention until the time of his release.

Chronological background

15. The essential chronological background to these proceedings is as follows:

1. 2010 to 2015 – Plaintiff’s driver’s licence, which remained valid to 22 June 2015, disclosed his Beecroft address: Exhibit “A”, p 1;

2. 9 May 2013 – A disputed allegation was made of violence having occurred at the CTTT premises resulting in the plaintiff leaving the premises, followed by the attendance of police to investigate the circumstances. As a result of a complaint made by Mr Lee, the investigating police sought an AVO against the plaintiff;

3. 10 May 2013 – A Provisional Ex Parte Apprehended Personal Violence Order was issued naming the plaintiff as defendant: Exhibit “A”, p 2. Following several unsuccessful attempts at service, that AVO remained unserved until the plaintiff was arrested;

4. 19 May 2013 – Service of the AVO at plaintiff’s Beecroft address was unsuccessfully attempted: Exhibit “A”, pp 14 – 15;

5. 22 May 2013 – An AVO hearing was adjourned to 12 June 2013 for service to be effected on plaintiff: Exhibit “A”, p 13; p 24;

6. 4 June 2013 – Service of the AVO at plaintiff’s Beecroft address was unsuccessfully attempted: Exhibit “A”, pp 16 – 17;

7. 7 June 2013 – Service of the AVO at plaintiff’s Beecroft address was unsuccessfully attempted: Exhibit “A”, pp 18 – 19;

8. 12 June 2013 – Service of the AVO at plaintiff’s Beecroft address was unsuccessfully attempted: Exhibit “A”, p 21;

9. 12 June 2013 – An AVO hearing was adjourned to 3 July 2013 for service to be effected on plaintiff: Exhibit “A”, p 25;

10. 3 July 2013 – An AVO hearing was adjourned to 24 July 2013 for service to be effected on plaintiff: Exhibit “A”, p 26;

11. 24 July 2013 – The Local Court issued a warrant for the arrest of the plaintiff: Exhibit “A”, p 23; p 28; Exhibit “21”;

12. 2 August 2013 – The arrest of the plaintiff was effected at 11.40am (Friday);

13. 3 August 2013 – Local Court appearance of the plaintiff at which time his release was ordered. This occurred at 6.20pm (Saturday);

14. 20 January 2014 – A Local Court hearing of charge against the plaintiff of common assault dismissed that charge: Exhibit “A”, pp 55 – 137;

15. 28 August 2014 – The present proceedings were filed in the District Court.

16. The events of 2 and 3 August 2013, as described by the plaintiff, police witnesses, and as described in the police Custody Management Record, require close analysis in terms of whether the plaintiff was wrongfully detained and imprisoned.

Warrant ordering the arrest of the plaintiff

17. The relevant terms of the warrant for the arrest of the plaintiff issued by the Local Court on 24 July 2013 were as follows:

“To all Police Constables in the State of New South Wales.

This is a warrant to arrest the defendant in relation to an apprehended violence order application.

I command you to apprehend the defendant and bring him before the Court.

…”

[Exhibit “12”, p 41]

18. The warrant was issued for the purpose of serving the plaintiff with the AVO. This was known to the senior arresting police officer at the time: Exhibit “12”, p 62. The warrant did not authorise any detention of the plaintiff in respect of any stated charges or any pending investigations. Implicit in the command to bring the plaintiff before the Court was the requirement that this should occur as soon as reasonably practicable, and without undue delay.

Evidence overview

19. The following witnesses gave oral evidence:

1. The plaintiff: T12 – T79; T93 – T235;

2. Ms Wendy Wang, the plaintiff’s daughter: T81 – T92;

3. Ms Bao Feng Guo, the plaintiff’s sister-in-law: T186 – T189;

4. Constable Michael Kachoyan: T239 – T255; T291 – T320;

5. Senior Constable Scott Collis: T321 – T333;

6. Senior Constable Neale Zietsch: T334 – T359;

7. Senior Constable Scott Westwood: T360 – T364;

8. Acting Sergeant Lydia Puglisi: T368 – T373;

9. Leading Senior Constable Adam Leahy: T374 – T439;

10. Senior Constable Ben Wild: T440 – T468;

11. Senior Constable Mazen Gergie: T477 – T539;

12. Sergeant Michael Tighe: T540 – T584.

20. Voluminous documentary exhibits were tendered in the plaintiff’s case in the series Exhibit “A” to Exhibit “L”. Voluminous documentary exhibits were tendered in the defendant’s case in the series Exhibit “1” to Exhibit “21”. These exhibits will be referred to in these reasons where it becomes relevant to do so. In addition, affidavits were read. It became unnecessary to specifically refer to that evidence.

21. The evidence of the witnesses and relevant aspects of the exhibits have been taken into account in reaching conclusions and findings on the issues calling for decision as identified at paragraph [13] above.

Witness testimony and related credit impressions

22. In the paragraphs that follow, I set out a precis of the essential elements of the evidence given by the witnesses who gave oral evidence. Where relevant, included in that precis are my impressions of the credibility and reliability of the testimony of those witnesses.

The plaintiff

23. The central matter at issue between the parties was the plaintiff’s ability to communicate and understand what had been said to him by police officers when he was arrested and whilst he was held in custody.

24. My impression was that the plaintiff gave his evidence in a histrionic manner. That view was consistent with the opinion of a consultant psychiatrist who had examined the plaintiff at the defendant’s request, and who formed the view that the plaintiff had presented to him in an exaggerated manner. I draw no adverse conclusions as to his credit or as to the reliability of his evidence based on my impressions as to his manner of giving evidence in that regard because at times, on various topics, his evidence was almost entirely given through a Mandarin interpreter, and allowance must be made for the possibility that there may have been expressive or cultural factors at play that may have influenced his gestures and his manner of giving evidence.

25. In order to understand the plaintiff’s case I set out something of his background situation, the events of his arrest, the details of his journey to Ryde Police Station, the processing of his arrest whilst he was detained at Ryde Police Station, his subsequent journey and handover into the custody of Corrective Services officers at Surry Hills, his overnight stay in the cells there, his subsequent weekend court appearance via an audio-visual link on the next day, and his release from custody at that time, the medical assessments of his health problems generally, and those claimed to have been as a result of the events, and an adverse health event that he encountered during the course of the fourth day of the trial, for which he required treatment.

Plaintiff’s background

26. The plaintiff was born in Northern China in 1961. He completed his schooling at age 18 years in 1979. In China, he initially pursued a degree in broadcasting and he worked for a television network. He then trained as an actor in a film production company where he worked for about 9 years. He also worked as a television journalist, an editor and a programme anchor. Since    1988, except for a 5 year period between 2005 and 2010, he has lived in Australia. The plaintiff and his wife got together in 1991. They are now separated on account of what he described as personality differences emanating from their different regions of origin in China. They have two daughters who, at the time of the events were aged 10 years and 13 years.

27. The plaintiff has had an Australian driver’s licence since 1989. He acquired Australian citizenship in 1993. In 2001 he purchased a property in Marsfield which he sold in 2007. In 2005 he sustained an injury at work. Following that injury, for financial reasons, he returned to China where he remained for 5 years before returning to Australia in 2010. In 2008, whilst still in China, he purchased the Beecroft property where he presently resides. Since 2010, his Beecroft address has been on his driver’s licence. Those details were accessible to police officers in 2013 at the time of unsuccessful attempts to serve him with AVO papers.

28. Since 1988, whilst in Australia, the plaintiff has worked as a gyprocker and he has also been involved in interior renovation work. At the time of the events in question he was due to go to quote on some work at a construction site after he had driven his daughters to school.

CTTT dispute giving rise to allegations against plaintiff of an assault

29. In these proceedings, it is unnecessary to examine and make findings about the veracity or otherwise of the allegations of assault made against the plaintiff at the CTTT premises. It is sufficient to say of those matters that the circumstances justified the investigating police officers seeking and obtaining an AVO against the plaintiff and to seek to serve those papers upon him pending the resolution of questions and issues which arose in the underlying disputed circumstances that occurred on 9 May 2013.

Arrest circumstances

30. The plaintiff claimed that on the morning of 2 August 2013, after having driven his children to school and after returning home for his breakfast before going to work, he heard a loud breaking sound from the vicinity of his front door, and then he heard some footsteps outside his house. He went to investigate those events: T17.40 – T17.45. The plaintiff claimed that in those events, a lock on one of his front gates which was key operated, had been broken, whereas the day before it was in proper working order: T19.50 – T20.25.

31. In that regard, he later clarified that evidence to the effect that he found the broken lock on the ground after he had been released from custody the following evening: T33.45. In these proceedings, the question of who broke the lock and in what circumstances receded into a peripheral question that is not necessary to decide. It is difficult to attribute the lock breakage to the actions of the police officers given their denials on that matter, and given the state of the evidence generally on that matter. It is not necessary to decide that question.

32. The plaintiff said that as he went to check on the sound that he had heard, he observed that “they already entered my room” through the front door: T20.34. He was referring to two police officers, namely, Senior Constable Leahy and Senior Constable Wild. He claimed they had smashed his wire screen door with their fists, and he could see through a glass door panel that they were trying to gain entry to his house. They were wearing police uniforms and their police appointments. He said he became very scared at that time: T21.5 – T21.28.

33. The plaintiff said that in those circumstances, he was scared and very nervous. The police officers had asked him to open the front door, which he did, and he said they then entered. He said “they pushed me against the wall”: T21.40 – T22.3. He later described having been pushed against the wall by one policeman: T22.25 – T22.47. He then went on to describe them, meaning the two policemen, as using “both their hands” to forcefully push his shoulders against the wall: T22.50 – T23.1.

34. The plaintiff then clarified those descriptions to state that only one policeman had pushed him against the wall while the other policeman started to search the room: T23.6. He said the policeman who had pushed his shoulders against the wall did so in a very fast manoeuvre whilst using both hands in an open position. He then proceeded to search the plaintiff’s pockets and carry out a pat-down body search of him: T23.25 – T24.13.

35. The plaintiff said that whilst he was being held against the wall, one of the policemen went into the bedrooms of the house and carried out a quick search without his permission: T25.14; T25.27. The plaintiff said he then produced his driver’s licence to the police officers on their request. The plaintiff said that one of the police officers removed his belt, and he was then told to go with the police officers whilst he was holding up his pants which were then beltless: T24.19 – T25.2.

36. The plaintiff claimed that in those circumstances he was repeatedly asking those police officers, in English, “Why? Why?” and he was also asking to “Call friend. Call friend.” He stated that he was not given any response to those pleas: T25.40 – T25.43.

37. The plaintiff said that his mobile telephone, which was on the table where he was trying to use it to make a call, was confiscated by the police officers, and he said he was then shoved from behind through the front gates of his property and he was then shoved into the police vehicle by both police officers: T26.2 – T26.44. The plaintiff said he had refused to go as he wanted to make a telephone call. He said that he was then shoved powerfully from behind and down some steps, and then along a pathway to his front gate: T27.13 – T27.44.

38. The plaintiff then said that the police officers tried to shove him into the police vehicle but he refused to go in, so they then pushed from the region of his buttocks, and he was pushed into the caged area of the police vehicle: T29.5 – T29.45. The plaintiff said that at the time of those events, he was wearing a collared shirt, but he had wanted to dress himself in a suit, but he was refused that opportunity: T30.1 – T30.19.

39. The plaintiff said that in the events he described, he saw that a couple, who were neighbours from across the road, had apparently observed some of the events he had described, and he found the circumstances to be a shameful experience. He said he was extremely embarrassed to have been observed in those circumstances: T30.20 – T30.42.

40. The plaintiff said that before being shoved into the vehicle he had been saying the words “medication, medication” to the police officers, and that he needed his medication. He said he then received a refusal in response: T31.1 – T31.25. I accept the plaintiff’s evidence on that matter.

Journey to Ryde Police Station

41. The plaintiff said that on the journey to the police station he was rolling about within the caged area of the vehicle, which he said was travelling fast. He said he was gesturing to the police officers, and telling them “I feel very cold” because of the air-conditioning that was operating, and he claimed that they then laughed at him: T31.28 – T31.46. Although the plaintiff made no mention of the bumpy ride in his evidence in chief, it could be reasonably inferred that was an apt description.

Processing of the arrest whilst at Ryde Police Station

42. The plaintiff claimed that at Ryde Police Station, the police officers had dragged him out of the vehicle head first. He said that this occurred by dragging him by his elbow and a shoulder to force him out of the vehicle to force him to go with them: T32.20 – T32.45. He also claimed that they then dragged him into the building: T32.46. I considered those descriptions of having been dragged as exaggerations influenced by the plaintiff’s emotional state at the time.

43. Although the plaintiff was not wearing a watch and did not know the time of his arrival at the police station, he thinks he saw a clock and thought it was “around 2pm”: T33.24. He estimated that he was at Ryde Police Station “from 11am to at least 5pm onwards”: T33.48. That time estimate was plainly wrong having regard to the Custody Management Record. The plaintiff’s evidence as to the events he claimed to have occurred at the police station must be viewed against the more objective and contemporaneously prepared Custody Management Record. I consider that those records are more likely to be accurate compared to the plaintiff’s imprecise recollection of the events.

44. The plaintiff claimed that whilst he was at Ryde Police Station he was given no food or drink for some time, but he later said that just before he was taken away from the Ryde Police Station to travel to Surry Hills, he was given something to drink: T34.11.

45. Whilst the plaintiff was at Ryde Police Station, a Chinese interpreter had been made available to assist him by telephone. The plaintiff claimed the interpreter was not permitted to answer his questions as to why he had been arrested: T34.11; T38.25. The plaintiff said in answer to questions asked of him about drugs and illnesses, he had replied that he had hypertension: T34.49. The plaintiff said he received the assistance of an interpreter at around 2.00pm or 3.00pm: T37.20. The plaintiff’s time estimate was not accurate in that regard.

46. At a time that was close to 3.00pm, the plaintiff said that in addition to asking the “Why? Why? Why?” questions to which he said he was not given any answers, he had been shouting out “Why?” at the top of his lungs. He was angry and he was getting anxious and worried about the fact that his 10 year old daughter was standing in a place that was dark and he had not been allowed to make a phone call to speak to his sister-in-law about picking her up from that place: T35.9 – T35.40. The plaintiff’s time estimate also appears to be wrong in that regard and it would have been unlikely that his daughter would have been in darkness at 3.00pm even allowing for it being winter time.

47. The plaintiff gave what appeared to have been confused evidence to the effect that after he had been photographed and finger printed he had been let out of the holding cage at the police station at about 5.00pm or 6.00pm, at which time he was allowed to call his eldest daughter, for 1 minute, after which he claimed that one of the two policemen who were then present just hung up the telephone. He said that he was not permitted to continue to use the telephone anymore: T36.1 – T37.13.

48. There was a conflict between the plaintiff’s recollection of the number, timing and duration of the calls he made on the day in question, and his telephone records. Given my assessment of what should be seen to be the pivotal issues calling for decision in this case, I consider it is unnecessary to seek to resolve that level of minutiae: T198; T212 – T214.

Journey to handover at Surry Hills to Corrective Services officers

49. The plaintiff said that when he left Ryde Police Station he did not know why he was being taken to the City: T38.33. The Police Custody Management record shows the plaintiff left Ryde Police Station at 3.13pm on Friday 2 August 2013. The Corrective Services custody records show he arrived at Surry Hills at 4.30pm on that afternoon: Exhibit “12”, p 66.

Overnight stay in cells at Surry Hills

50. On arrival at Surry Hills the plaintiff said he was walked around within the premises and then after a while he was placed in a cell, and given two blankets. At that time he came to realise he would be spending the night there: T38.35 – T39.5. The cell already had another occupant: T39.29. He was not given a meal until the next morning: T40.5.

51. The plaintiff said that the shared cell did not have a bed for him. He said that the original occupant had been shoving him about and had forced him to sleep on the floor of the cell: T45.18. He did not know whether he was above or below ground level: T39.47. Whilst the plaintiff was having his breakfast, another two persons were brought into the cell, and locked in with him: T44.49. One of the persons brought into the plaintiff’s cell was exhibiting abnormal behaviour: T45.37. That person took part of the plaintiff’s breakfast from him: T45.12.

52. Whilst in the cell at Surry Hills the plaintiff said he became concerned about his blood pressure and tried to communicate with his gaolers via the intercom to tell them he needed water and medicine. His concern in that regard was against a background that his father had died from a lack of appropriate medicine and he was experiencing what he described as a terrible headache. He was also very anxious about his daughters: T46. He said he only had stinky water in his cell: T46.17.

53. The plaintiff said that his repeated and numerous attempts to obtain assistance via the cell intercom went unheeded. He said that he banged his head against the wall many times, and felt like killing himself: T47.24. He said his headache was excruciating and agonising, and he thought that banging his head against the wall might have been a quick way out for him: T47.32. He estimated he had banged his head against the metal door and against the wall “no less than 50 times”: T47.36.

54. The plaintiff said that whilst he was in the cell with those other occupants, he was served a “moderate” lunch. He said he ate a sandwich but the rest of his meal was taken away from him by the other occupant who had previously taken part of his breakfast. He said he was threatened with being hit if he did not give up his meal and his blankets: T49.

Court appearance by AVL and subsequent release from custody

55. The plaintiff stated that it was not until about 2.00pm on the afternoon of Saturday 3 August 2013, whilst the plaintiff was located in another cell area with a CCTV (AVL) connection and a television monitor on the wall, that an interpreter had told him why he had been arrested and held in custody: T47.38 – T48.1.

56. The custody records show that whilst the plaintiff was in the AVL cell there appears to have been some confusion as to whether he was Korean or spoke Korean, or needed a Korean interpreter: Exhibit “12”, pp 67 – 68; T50.35. He claims that no-one had asked him about his health, medical history or his family situation, or his language proficiency including in the Korean language: T50 – T51.

57. The plaintiff said that if someone had asked him questions along those lines in the English language he would not have understood what was being said. He said he would have asked for a Chinese interpreter in such circumstances: T52.34 – T52.42. The Corrective Services custody records clearly state that the plaintiff had limited English and could not understand any questions: Exhibit “12”, p 72.

58. The plaintiff was in the AVL room at the Surry Hills centre for about 30 minutes: T54.33. The transcript of those short proceedings did not specify a commencement or a completion time: Exhibit “12”, pp 77 – 79. He was able to understand the presiding Judicial Officer because by that time an appropriate interpreter had been provided to assist him: T54. He said he understood from the interpreter, obviously mistakenly, that he had been arrested for contempt of court: T55.7. In these reasons there is no need to delve further into the accuracy of his belief to that effect.

59. After the plaintiff’s court appearance by AVL, he was taken back to his cell where other prisoners were housed as earlier described: T57.10. I infer that this delay occurred pending the formalities that needed to be completed concerning the order for the plaintiff to be released. It seems that there were at least 20 bail applications that day. The record is poorly photocopied. It seems more probable than not that there were many more bail cases to be dealt with in the AVL court that day, which could explain the plaintiff’s delayed release time: Exhibit “12”, p 76 and also the “Gain” and “Lost to Bail” tally sheet forming part of Exhibit “C”.

60. The plaintiff said, mistakenly, that he was allowed out of his cell at around 7.00pm or 8.00pm on the Saturday evening: T53.5. The plaintiff said that he was released from custody some 4 to 5 hours after his AVL court appearance: T62.24. He later adjusted that evidence from 4 to 5 hours to 3 hours after his AVL appearance: T63.35. The Corrective Services record shows the plaintiff was “out” at 6.15pm: Exhibit “12”, p 75. He said he had no money and had to be assisted with train travel vouchers to go to his home: T62 – T63. He said he had cried a lot on the way home: T64.25.

61. In the plaintiff’s court appearance by AVL on 3 August 2013, he was ordered to attend Court on 7 August 2013 regarding the AVO that had been issued against him: T61. He said that ultimately, he engaged a lawyer and was told “they [got] the wrong guy” and he did not need to go to court: T62.5 – T62.10. The transcript of those dismissed proceedings was part of the evidence in these proceedings: Exhibit “A”, pp 55 – 136. In these reasons, there is no need to further explore or consider that aspect of the evidence.

Plaintiff’s claim of subsequent and related adverse health issues

62. The plaintiff said that he often recalled the events of his imprisonment over the course of those two days. He said that he can never take his mind off them, and as a consequence, he is still seeing a psychiatrist and a psychologist: T64.30 – T65.30. He said he was under a lot of psychological stress from the very traumatic experience of his imprisonment, and he feels he will never forget the events in question for the rest of his life: T67.45.

63. The plaintiff said he now has sleeping difficulties, and he gets agitated and scared when he sees police on television, and he has similar reactions when he has to travel past the Ryde Police Station or when he hears sirens, and as a result he has low mood and he has nightmares: T68.1 – T68.41.

64. The plaintiff said that his post-imprisonment problems had been correctly summarised by an examining psychiatrist as suffering irritability, frustration, anger, increased blood pressure, sleeping problems, fatigue, headaches, tension, preoccupying thoughts, depression, concentration and memory problems: T69.10 – T69.19. He said those problems have not changed which is why he still needs to see a psychiatrist. He also said he often cries for no reason, he lacks energy, becomes short of breath and feels that his heart is not able to cope: T69.20 – T69.47.

65. On a social level, the plaintiff said that he is no longer able to perform and sing songs or enjoy Chinese New Year festivities, and he feels his future is hopeless: T70. At times he has nihilistic thoughts, such as: “Where should I cut my throat?”: T71.7; T71.29. The plaintiff stated that he had been seeing a psychologist on the recommendation of his general practitioner and he agreed he had told her he felt that his life was meaningless: T79.16.

66. The plaintiff said he feels on edge and alert for something to happen, describing what I infer to be a state of hypervigilance: T71.40. He said he has become socially withdrawn (T72.16), he feels shame about what has happened to him (T72.37), and in an account he gave to a psychologist, he said that at the time of the events, he thought that he could be shot, and this has caused him to have an intense fear of police: T72.40 – T72.46. He described his state of humiliation, intense fear and horror over the events: T73.25. He described having resumed smoking after his release from custody: T73.45.

67. The plaintiff said that he and his wife now live together as a separated couple in the same house. The implication from his evidence is that she returned to the house because he was so miserable: T74.24. The fact of the marital separation had been kept from his daughters until Wendy Wang gave evidence and was cross-examined: T74.28.

68. The plaintiff’s marital situation was explored in the evidence on a damages issue. He had agreed that his pre-arrest marital situation was that he and his wife were separated, and he had gone to great lengths to conceal this from his children. He agreed that situation had caused severe anguish, stress and distress: T176.40 – T177.15. He later sought to downplay the significance of that answer: T178.40.

69. The plaintiff had his attention drawn to the observation of Dr Phillip Brown, a consultant psychiatrist who had been engaged to examine him on behalf of the defendant in February 2015. Dr Brown had expressed the view that although he did not doubt the plaintiff’s stated symptoms, he nevertheless felt that the plaintiff presented in an exaggerated manner and was making more of his problems than was really the case: T76.20 – T76.31. I will return to a consideration of those remarks when analysing the medical evidence. The plaintiff said Dr Brown had not expressed or exposed that view to him for his comment.

Plaintiff’s adverse health incident during the trial

70. The plaintiff was cross-examined at length. On the second day of the trial the plaintiff complained of having “great headaches”: T48.22. He was offered a break but he chose to continue with his evidence instead: T48.32.

71. The need for the plaintiff to give evidence in his case was plainly a stressful ordeal for him. He was at times very upset, he needed occasional breaks from giving evidence, and at times he cried. The transcript notes those various situations: T29.24 – T29.30; T40.17; T48.22; T48.30 – T48.35; T53.10; T53.17; T53.22; T94.28; T166.39; T178.18; T184.39 – T185.4; T204.38; T218.33; T225.4 – T225.5.

72. The plaintiff stated that although he has had hypertension since 2003, his blood pressure has become raised since his arrest, and the level of his elevated blood pressure is influenced by his emotional state: T180.40; T183.10.

73. On the fourth day of the trial, the plaintiff’s evidence was interrupted because he needed medical attention for problems concerning his high blood pressure. From a medical perspective he was considered to be well enough to continue with his evidence on the following day: T204.10 – T205.18. His evidence was completed on the fifth day of the trial: T235.35.

70. On my evaluation of the plaintiff’s evidence, for the reasons that will be identified, on the question of whether or not there was an unlawful assault or battery, I considered his evidence was less reliable than that of the police witnesses on key matters in dispute. I have preferred the evidence of Senior Constable Leahy and Senior Constable Wild as being more reliable than that of the plaintiff on such matters, except as to his request for access to his medication. I have accepted his evidence on that matter.

71. In reviewing the content of the plaintiff’s evidence, I considered that his emotional response to the circumstances of his arrest has, understandably, influenced, magnified and distorted his factual perceptions of those events. This was evident from the several episodes of upset that the plaintiff displayed during his evidence when certain topics were raised.

Ms Wendy Wang

76. The plaintiff’s daughter, Ms Wang, was a Year 12 high school student at the time of the hearing. Her evidence was of limited relevance. It was given in the English language. She had noticed that her father had resumed his habit of cigarette smoking after his arrest, and she had also noticed that since the events giving rise to this case he had become vigilant when he heard a siren or saw police: T81.46 – T82.10.

77. In cross-examination it became apparent that Ms Wang knew little of the plaintiff’s domestic situation in that she had been unaware that her parents had been separated at the time of the plaintiff’s arrest, and understandably, she became perplexed and was somewhat taken aback by questioning along those lines: T82 – T85. She did not know the details as to where her father had been working at the time of his arrest (T85.15), or his history of prior injuries (T85.19; T85.46 – T86.2), or details about his other unrelated health issues: T92.9.

78. Ms Wang’s evidence as to the arrangements for her after school pick-up on the day of the plaintiff’s arrest (T87 – T88) did not convey the same level of concern as to her welfare as that which was conveyed somewhat emotively in the plaintiff’s evidence. Her evidence as to the fact of a broken lock on the gate to the plaintiff’s property was of limited assistance to determining the peripheral question of whether or not police officers had broken the lock when gaining entry onto the premises to arrest her father: T90 – T91. She had not been present at that time, and therefore could not give any useful evidence on that question.

79. There were no credit issues that emerged from the limited evidence given by Ms Wang.

Ms Bao Feng Guo

80. Ms Guo, the plaintiff’s sister-in-law, gave some of her evidence in the English language and partly as interpreted by a Mandarin speaking interpreter.

81. Ms Guo described how, on Friday 2 August 2013, she had received a telephone call from the plaintiff in which he stated “The police are going to take me away. Please pick up my second daughter after she finishes classes”: T186.40 – T186.45. She said his conversation lasted maybe a few minutes: T187.22.

82. Ms Guo stated that she had difficulty in locating the plaintiff’s daughters. She said she then called him to seek more information. She said that call was at about 2.00pm to 3.00pm on the day in question. She said the plaintiff asked her to try her best to locate them because “the police would not allow me to use the phone”: T187.30 – T188.2. It remains unexplained as to how she managed to speak to the plaintiff, apparently on his phone, whilst he was in police custody. Ultimately, given the pivotal issues to be decided, nothing of significance turns on the detail and timing of those calls whilst the plaintiff was in custody.

83. Ms Guo stated that she found the plaintiff’s daughters two hours later: T188.7. She stated that on the following Saturday evening she heard from the plaintiff who advised her, in a shaky voice, that he had been released from custody and would be coming to pick up his daughters, which is what he then did: T189.4. How he did so is not clear, as earlier Ms Guo’s husband had driven the daughters to their own home the night before, to be cared for by the plaintiff’s mother: T188.10 – T188.20. Nothing seems to turn on that discrepancy in the evidence.

84. When Ms Guo first saw the plaintiff after his release she described his facial appearance as very pale and his voice as very hoarse: T189.20 – T189.25. Ms Guo’s evidence was unchallenged. In my view, nothing of significance turns on the content of her evidence.

Senior Constable Kachoyan

85. The evidence of Senior Constable Kachoyan was to the effect that he was the police officer who had taken a complaint from Mr Lee concerning an alleged assault upon him by the plaintiff at the CTTT premises on the morning of 9 May 2013: T241 – T243. The plaintiff and Mr Lee had been there because of a commercial dispute.

86. Senior Constable Kachoyan’s evidence was largely peripheral. The essential points of his evidence was his attendance in response to the incident involving the plaintiff and Mr Lee (T292 – T293), the consequential taking of some statements and steps towards the issuing of a court attendance notice and interim orders relating to apprehended personal violence (T295 – T296) directed to the plaintiff, which ultimately led to his arrest pursuant to a warrant issued in accordance with s 101 of LEPRA (T240.27), and explaining some police records searches and unsuccessful attempts at service of notices on the plaintiff at an address identified in the police database: T248 – T254; T293.

87. On 4 June 2013, Senior Constable Kachoyan became aware of the plaintiff’s Beecroft address: T297.6. He was asked many questions in cross-examination on factual and procedural matters that were not within his knowledge or within the ambit of his duties. However, he explained the general context of some of those matters arising from police records: T298 – T319. He had no responsibility for the events concerning the plaintiff’s arrest: T302.50. He had been responsible for obtaining a statement from Mr Lee which formed the basis for the issue of the ex-parte order that led to the arrest of the plaintiff: T307.44.

88. The underlying complaint about the plaintiff as made by Mr Lee, and as recorded by Senior Constable Kachoyan, was that there had been a robbery, which Senior Constable Kachoyan acknowledged was an incorrect factual record: T314.41 – T314.50. He explained the scope for the occurrence of errors of that kind to occur in entries made in the police COPS records system, and how such descriptions could influence the level of police responses to call-outs relating to such matters: T315.

89. No issues of credit or reliability of testimony emerged from the evidence of Senior Constable Kachoyan.

Senior Constable Collis

90. Senior Constable Collis was the officer who had earlier unsuccessfully tried to serve court attendance notices on the plaintiff based on erroneous police database records as to the plaintiff’s address at Marsfield. He explained what was involved in that process: T321 – T329. There is no need to further explore those matters in these reasons. No issues of credit or reliability of testimony emerged from the evidence of Senior Constable Collis.

Senior Constable Zietsch

91. The role of former Senior Constable Zietsch in the events in question was that he was the police Domestic Violence Liaison Officer responsible for processing the original complaint against the plaintiff: T335 – T356. He had retired from the police force in 2015: T336.20.

92. Mr Zietsch explained the police system for dealing with complaints involving alleged domestic violence: T337. He had limited recollection of the events on matters concerning the issuing and the processing of police paperwork relating to the plaintiff: T338.47 – T340.7; T343.6. He explained that the interim personal domestic violence order that was to be served on the plaintiff had been issued by the Local Court on 22 May 2013 based on procedural steps that he had initiated, although he could not recall having undertaken those tasks: T344.24 – T344.44. No issues of credit or reliability of testimony emerged from the evidence of Mr Zietsch.

Acting Sergeant Puglisi

93. Acting Sergeant Puglisi was the officer from the Police Prosecutions Command who appeared in the Local Court to procure the interim apprehended domestic violence order relating to the plaintiff. She had no actual recollection of those events: T368.5 – T368.46. She had processed that application on the information she had obtained from Senior Constable Zietsch: T369.8. There were no matters of controversy, credit or reliability of testimony that emerged from her evidence.

Senior Constable Westwood

94. The evidence of Senior Constable Westwood was directed to a series of unsuccessful attempts at service of court attendance notices upon the plaintiff at various addresses located in Beecroft and Marsfield: T360 – T361.30. His evidence was based on records he had contemporaneously created concerning those matters rather than on an actual recollection of events: T362.47 – T363.20. Senior Constable Westwood’s attempts at service were based on addresses that he had been given in the course of his duties as a police officer. He was unable to explain why the plaintiff’s actual Beecroft address had not been correctly recorded in the documentation for service: T364.19. No issues of credit or reliability of testimony emerged from the evidence of Senior Constable Westwood.

Leading Senior Constable Leahy

95. Leading Senior Constable Leahy was the police officer tasked with executing the warrant that had been lawfully issued for the arrest of the plaintiff. The arrest took place at the plaintiff’s Beecroft address after some unsuccessful attempts at contacting the plaintiff at a stated address in Marsfield: T374.28 – T375.3. Senior Constable Leahy’s evidence was the subject of a series of challenges on key matters of fact.

96. The range of topics that comprised the evidence of Senior Constable Leahy included: him being tasked to execute the warrant to arrest the plaintiff (T374.28); locating the plaintiff outside the front of his home at the time of the arrest (T375.27, T399.40); his contemporaneous conversations with the plaintiff in English at the time of the arrest (T390.49 – T391.9, T399.49, T414.45, T415.8, T432); his conversation with the plaintiff concerning his need to make some after school arrangements for his children to be picked up (T375.48, T391); the processing of the plaintiff’s arrest and events occurring whilst in police custody (T376 – T379); whether the plaintiff’s house was searched at the time of his arrest (T401.30); the manner in which the plaintiff was handled and searched in the course of his arrest (T402.11); whether the plaintiff would have had an uncomfortable ride in the caged police vehicle in the journey to the police station (T401.4); the arrangements made for an interpreter (T412.42; T413.40 – T413.50); whether at the time of the arrest the plaintiff was compliant with the process (T393.39, T422.35, T424.8, T425.28); his responsibility as an officer executing the arrest warrant (T386.40, T397.24, T397.43, T403.10 – T403.30, T404.43, T405 – T408, T418.4, T433.40, T435.49, T437.12); and the escorting of the plaintiff into Corrective Services custody at Surry Hills after he had been refused bail (T387.36 – T390.39).

97. In cross-examination, Senior Constable Leahy was asked to address a number of propositions that were contrary to the evidence he had given in his evidence in chief: T425.49 – T431.47: Browne v Dunn (1893) 6 R 67. Those contrary propositions, which were all denied by Senior Constable Leahy, were as follows:

1. The plaintiff had been inside his house at the time when the police officers entered the property: T426.1 – T426.5;

2. Either Senior Constable Leahy or Senior Constable Wild had broken the lock on the gate to gain access to the property: T426.15; T428.48;

3. The plaintiff had been pushed against a wall by one of the police officers when they entered his premises: T426.37;

4. The plaintiff had been assaulted at the time he was body searched: T427.5 – T427.21;

5. One of the police officers had undertaken an unauthorised search of the plaintiff’s house: T427.48 – T428.9;

6. During the process of arrest the plaintiff was repeatedly saying “Why? Why? Why?” and had made it clear that he did not understand what was going on: T428.10 – T428.16;

7. The plaintiff’s mobile telephone had been grabbed and taken from a table in the house: T428.22;

8. The plaintiff was being hurried by the police officers, and was pushed down the steps of the house and along the pathway at a time when he was making it clear by his physical movements that he did not want to go as directed: T428.35 – T428.46;

9. The plaintiff was pushed out of his front gate: T429.3;

10. At some stage the plaintiff was pushed in the area of his buttocks: T429.6;

11. The plaintiff had said he suffered from hypertension and needed to take his medication on a regular basis: T429.8 – T429.15;

12. The police vehicle conveying the plaintiff to Ryde Police Station was being driven deliberately at speed over speed humps: T429.19;

13. He had made fun of the plaintiff as he was being driven to the police station: T429.40;

14. He had “made absolutely no attempt” to ensure the plaintiff was brought before a court “as soon as reasonably possible”: T429.43 – T430.3; T430.41 – T431.11;

15. The plaintiff was acting in a way which indicated he was frightened of the police: T431.25 – T431.31;

16. It was evident throughout from what the plaintiff had been saying that he did not understand what was going on: T431.33 – T431.43.

98. I accept those denials, except as to the plaintiff’s statement as to his need for blood pressure medication. The question of Senior Constable Leahy’s actions in ensuring the plaintiff was brought before the Court requires a more detailed analysis.

99. A question was asked of Senior Constable Leahy in cross-examination as follows concerning the plaintiff’s response to a request that he identified himself before the arrest:

“Q. He said, "I'm Mr Jia Wang", and you said, "Well we're two police officers and we're here to arrest you"?

A. Yes.”

[T427.38 – T427.40]

100. That question, which I infer was asked on the plaintiff’s instructions, and framed as a quotation, plainly suggests that, in the English language, the plaintiff knew and understood what was going on at the time of his arrest.

101. Senior Constable Leahy made a number of fair concessions in his evidence, as follows:

1. He conceded that at the time of the arrest, he did not inform the plaintiff that he was to be brought before a court: T415.40. It appears that at that time he thought there was no obligation at that time to inform the plaintiff that this was to occur, and that it was sufficient compliance that he informed the plaintiff he was under arrest pursuant to a warrant: T415.32;

2. He conceded that he thought the plaintiff had been in police custody on a previous occasion, and he fairly conceded that his impression in that regard was incorrect: T416.10 – T416.34. In this case, nothing turns on his erroneous assumption other than as a possible explanation for an investigatory delay whilst the plaintiff was held at Ryde Police Station;

3. He said that once the plaintiff had been seen by Sergeant Tighe, the bail Sergeant, and had been refused bail, he did not consider it his duty to place the plaintiff before a court: T417.1 – T417.39. He fairly conceded that he had not paid specific attention to the wording of the warrant “I command you to apprehend and bring the defendant before the court”: T417.49. He also conceded that once the plaintiff had been refused bail by the Bail Sergeant, he did not consider himself under a revived obligation to bring the plaintiff before a court: T418.4;

4. He also conceded he could not recall how he had entered the plaintiff’s property via the gate, or who had opened the gate: T419.3. In my view, nothing turns on that divergence between the evidence of the plaintiff and the two police officers. However, Senior Constable Leahy was adamant that the plaintiff was standing at the front of the property when they entered to arrest him: T419.10 – T419.15;

5. He also fairly conceded that, in hindsight, he could have explained the process of arrest pursuant to the warrant to the plaintiff more definitely: T432.35. In my view, nothing of substance turns on that hindsight concession because Senior Constable Leahy had no option but to arrest the plaintiff in accordance with the command of the warrant.

102. Senior Constable Leahy considered that the plaintiff was so compliant with the process of arrest and walking to the police vehicle that he permitted the plaintiff to have access to his mobile telephone in that process to arrange for child pick-up. It appears from the context of that evidence that the plaintiff was permitted to use his mobile telephone, both when walking to the police vehicle and also whilst in the back of the caged police vehicle: T421.38 – T421.45.

103. In my view, despite the challenges made to the evidence of Leading Senior Constable Leahy, no substantive issues of credit or reliability of testimony emerged from his evidence. That said, consideration of the timeliness of his actions in processing the arrest so that the plaintiff could be presented before a court will form part of a separate analysis.

Senior Constable Wild

104. At the time of the arrest of the plaintiff, Senior Constable Wild was a general duties constable assisting Senior Constable Leahy. At that time, both he and Senior Constable Leahy had been speaking with the plaintiff: T441.13. His evidence was also the subject of challenges concerning key matters of fact.

105. Whilst Senior Constable Wild could not recall precisely what was said when conversing with the plaintiff, apart from the explanation of the arrest pursuant to a warrant (T441.50), he was clear that the conversation with the plaintiff and the plaintiff’s acknowledgment of that conversation, was in the English language: T442.35 – T442.45. He said the plaintiff was able to respond in English, and was able to ask questions. He said the plaintiff’s English “was fine”: T443.6. Senior Constable Wild confirmed that he had been able to readily communicate with the plaintiff in terms good enough not to require an interpreter: T451.10 – T451.28.

106. Senior Constable Wild stated that the plaintiff had permitted the police officers to enter his home whilst he selected some clothes. He said he was present when the plaintiff used his mobile telephone to make a call for child pick-up arrangements: T443.10 – T443.44.

107. I do not regard the discrepancy between Senior Constable Leahy’s evidence to the effect that the plaintiff had made that call from the police vehicle, and Senior Constable Wild’s evidence to the effect that the call had been made from the front of the plaintiff’s house as being significant, given that neither officer had made formal notes in a police notebook at the time the arrest warrant was executed because there was no need to do so: T393.12 – T393.38 (Senior Constable Leahy); T449.25 – T449.36 (Senior Constable Wild).

108. Another area of dissimilarity in the evidence of Senior Constable Wild compared to the evidence of Senior Constable Leahy was that the former described the plaintiff as being unhappy and argumentative about being seated in the pod area at the back of the police vehicle (T444.15 – T444.30), whereas, as I have already observed at paragraph [96] above, Senior Constable Leahy described the plaintiff as having been very compliant with the process. It appears to have been conceded that the plaintiff was both respectful and compliant throughout the process: T176.35.

109. I do not regard the difference in the cited evidence as significant in terms of reliability, credit or conflict because in that context, Senior Constable Wild was referring to the placement of the plaintiff in the pod of the police vehicle, and he was not referring to the plaintiff having an otherwise non-compliant attitude. Senior Constable Wild also said the plaintiff had been compliant: T451.1. Senior Constable Wild was cross-examined on a number of topics. Those matters included whether or not he had communicated with Senior Constable Leahy about whether he had impermissibly discussed the detail of his evidence: T446 – T447. I accept his denials in that regard.

307. Those circumstances were then compounded by the occurrence of a further delay that was incurred whilst waiting for Sergeant Tighe, the Bail Sergeant, to arrive and to inevitably refuse the plaintiff bail. By that time, on the evidence, it was less likely, and doubtful but not impossible, for the plaintiff to be brought before the Court that afternoon. The result of those needless delays for the plaintiff was an ensuing period of indignity, anxiety, uncontrolled hypertension and distress in the cells at Surry Hills. The adverse psychological consequences of those matters still continue to affect the plaintiff. The combined effect of those events has operated as an egregious and contumelious imposition on the plaintiff’s rights, which has continued to have an adverse impact on him right up to and during the trial. I consider this calls for the inclusion of an element of aggravated damages.

308. In assessing the element for aggravated damages, I recognise the need to avoid double or overlapping compensation with an award of general compensatory damages.

309. As was observed in Coyle v State of New South Wales [2006] NSWCA 95, at [99], matters of embarrassment and humiliation relating to even a short period of wrongful deprivation of liberty, are not insignificant matters.

310. Taking the above matters into account, I therefore assess the plaintiff’s general compensatory damages for wrongful imprisonment, including aggravated damages, in the sum of $40,000.

Claim for exemplary damages

326. In my view, no proper basis has been shown to exist for awarding the plaintiff exemplary damages. I do not accept that there was bad faith or mala fides on the part of any of the police officers responsible for the plaintiff’s detention that had the untoward effect of transforming the plaintiff’s initially lawful detention into circumstances of wrongful imprisonment.

327. The wrongful imprisonment of the plaintiff occurred unintentionally, due to systemic and cumulative processing errors and consequential delays on the part of police officers at Ryde Police Station who were otherwise responsible for bringing the plaintiff before the Court as soon as was practicable.

328. This was compounded by the fact that on the day in question there was only limited access to courts due to an annual Local Court Magistrates Conference which did not prevent, but made more difficult, the process of bringing the plaintiff before the Court, which would have promptly secured his inevitable release once the required papers had been served on him at that time.

329. The described systemic delays, whilst egregious, were not incurred with the intention of causing harm to the plaintiff, whether through mala fides or bad faith. I therefore reject the claim for exemplary damages.

Future out-of-pocket expenses

330. The medical evidence contains the recommendation for the plaintiff to have treatment for his psychological problems that I have found to have been relevantly caused by his wrongful imprisonment. I accept as reasonable Dr Ellis’ view that an allowance should be made for the plaintiff to have about 20 sessions of cognitive behavioural therapy. The evidence does not allow a precise calculation of all of the medical, psychological and additional pharmaceutical elements that should be allowed for in respect of those treatment recommendations.

331. In those circumstances I propose to make a buffer allowance for such expenses. The plaintiff is under a common law duty to take reasonable steps aimed at the mitigation of his damages. He should have an award of damages that includes an amount for the cost of the mitigatory treatment that has been suggested. This will enable him to pay for that treatment in the short term over the next year or so.

332. I therefore award the plaintiff damages for future treatment expenses in the amount of $3500.

Past out-of-pocket expenses

333. The plaintiff tendered a schedule that summarises the out-of-pocket expenses that he has incurred since 15 September 2013. Those expenses involved the cost of medication, general practitioner and psychological consultations: Exhibit “L”. That schedule makes due discounted allowance for the anti-hypertension medication the plaintiff would have been required to take in any event. It identifies the plaintiff’s claim for past out-of-pocket expenses in the amount of $1621.89. I consider that claim to be reasonable and I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the discounted sum of $1621.89.

Interest

334. The plaintiff’s entitlement to damages for wrongful imprisonment crystallised as at 3 August 2013, but the exacerbating and aggravating effects will to a degree continue until he completes the recommended treatment regime.

335. According to the unchallenged medical evidence, the plaintiff’s ongoing distress and anxiety is likely to abate after a year or so after he has had the suggested treatment and after these proceedings have been finalised. Of the award of $40,000, for the purpose of facilitating the calculation of interest, I apportion $32,500 to the pre-judgment period. The plaintiff is therefore entitled to interest on that apportioned amount of $32,500 up to the time of judgment, a period of 5.35 years. I assess the appropriate rate of interest at 2 per cent. That interest is therefore calculated to be $3477.

Summary of damages assessment

336. My assessment of the plaintiff’s damages is summarised as follows:

(a) Wrongful arrest, assault and battery	$Nil
(b) Compensatory and aggravated damages	$40,000
(c) Exemplary damages	$Nil
(d) Interest	$3,477
(e) Future out-of-pocket expenses	$3,500
(f) Past out-of-pocket expenses	$1,621.89
Total	$48,598.89

Disposition

337. The plaintiff has succeeded on only limited issues, resulting in a verdict and judgment in his favour in the amount of $48,598.89, including interest.

Costs

338. The plaintiff has not succeeded on all of the issues that he has sought to litigate. This raises questions as to the appropriate order for costs: s 98 of the Civil Procedure Act 2005. If the parties are unable to agree on the appropriate order for costs, I will hear the parties on that issue on application on a date to be fixed after they have had the opportunity to consider these reasons.

Orders

339. I make the following orders:

1. Verdict and judgment for the plaintiff against the defendant, including interest, in the amount of $48,598.89;

2. The exhibits may be returned;

3. I will hear the parties on the question of costs;

4. Liberty to apply on 7 days notice if further or other orders are required.

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Decision last updated: 07 December 2018