Weir v Tomkinson

[2001] WASCA 77

WEIR & ANOR -v- TOMKINSON [2001] WASCA 77

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 77
Court:	THE FULL COURT (WA)
Case No:	FUL:165/1999	Heard:	9 & 15 JUNE 2000
Coram:	KENNEDY J WALLWORK J MURRAY J	Delivered:	15/03/01
No of pages:	51	Judgment Part:	1 of 1
Result:	Appeal and cross-appeal dismissed
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Parties:	MALCOLM WEIR RAYMOND FRANK COLLINS NICHOLAS KENNETH CAMERON TOMKINSON
Catchwords:	Appeal Facts Oral evidence at trial Credibility Principal finding of fact by trial Judge based on demeanour of witness Findings not set aside Damages Battery False imprisonment Malicious prosecution Aggravated and exemplary damages
Legislation:	Nil
Case References:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Briginshaw v Briginshaw (1938) 60 CLR 336 Devries v Australian National Railways Commission (1993) 177 CLR 472 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 Jones v Hyde (1989) 63 ALJR 349 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 SS Hontestroom v SS Sagaporack [1927] AC 37 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 Walsh v Law Society (NSW) (1999) 198 CLR 73 Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Crowley v Murphy (1981) 52 FLR 123 Donaldson v Broomby (1982) 60 FLR 124 G v H (1994) 181 CLR 387 Ghani v Jones [1970] 1 QB 693 Goldsmith v Sandilands 30 MVR 305 Helton v Allen (1940) 63 CLR 691 Heytesbury Holdings Pty Ltd v City of Subiaco (1999) 19 WAR 440 Hoffman v Legal Practitioners Complaints Committee [1999] WASCA 309 Kelly v Dann (1992) 8 WAR 225 M v M (1988) 166 CLR 69 Northern Territory v Mengel (1995) 185 CLR 307 R v Asplin [1999] WASCA 148 Rejfek v McElroy (1965) 112 CLR 517 Sanders v Snell (1998) 196 CLR 329 Talbot v Lane (1994) 14 WAR 120 Thompson v Commissioner of Police of the Metropolis (1997) 3 WLR 403; 164 ALR 405 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Witham v Holloway (1995) 183 CLR 525

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WEIR & ANOR -v- TOMKINSON [2001] WASCA 77 CORAM : KENNEDY J

WALLWORK J
MURRAY J

HEARD : 9 & 15 JUNE 2000 DELIVERED : 15 MARCH 2001 FILE NO/S : FUL 165 of 1999 BETWEEN : MALCOLM WEIR

First Appellant (First Defendant)

RAYMOND FRANK COLLINS
Second Appellant (Second Defendant)

AND

NICHOLAS KENNETH CAMERON TOMKINSON
Respondent (Plaintiff)

Catchwords:

Appeal - Facts - Oral evidence at trial - Credibility - Principal finding of fact by trial Judge based on demeanour of witness - Findings not set aside

Damages - Battery - False imprisonment - Malicious prosecution - Aggravated and exemplary damages

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Legislation:

Nil

Result:

Appeal and cross-appeal dismissed

Representation:

Counsel:

First Appellant (First Defendant) : Mr W S Martin QC &
Mr M J Bowden
Second Appellant (Second Defendant) : Mr W S Martin QC &
Mr M J Bowden
Respondent (Plaintiff) : Mr L A Tsaknis

Solicitors:

First Appellant (First Defendant) : Cannon Bowden & Co
Second Appellant (Second Defendant) : Cannon Bowden & Co
Respondent (Plaintiff) : Hammond Worthington

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

Abalos v Australian Postal Commission (1990) 171 CLR 167
Briginshaw v Briginshaw (1938) 60 CLR 336
Devries v Australian National Railways Commission (1993) 177 CLR 472
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599
SS Hontestroom v SS Sagaporack [1927] AC 37
Jones v Hyde (1989) 63 ALJR 349
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
Walsh v Law Society (NSW) (1999) 198 CLR 73




(Page 3)

Case(s) also cited:

Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Crowley v Murphy (1981) 52 FLR 123
Donaldson v Broomby (1982) 60 FLR 124
G v H (1994) 181 CLR 387
Ghani v Jones [1970] 1 QB 693
Goldsmith v Sandilands 30 MVR 305
Helton v Allen (1940) 63 CLR 691
Heytesbury Holdings Pty Ltd v City of Subiaco (1999) 19 WAR 440
Hoffman v Legal Practitioners Complaints Committee [1999] WASCA 309
Kelly v Dann (1992) 8 WAR 225
M v M (1988) 166 CLR 69
Northern Territory v Mengel (1995) 185 CLR 307
R v Asplin [1999] WASCA 148
Rejfek v McElroy (1965) 112 CLR 517
Sanders v Snell (1998) 196 CLR 329
Talbot v Lane (1994) 14 WAR 120
Thompson v Commissioner of Police of the Metropolis (1997) 3 WLR 403; 164 ALR 405
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Witham v Holloway (1995) 183 CLR 525

(Page 4)

1 KENNEDY J: The respondent instituted proceedings in the District Court against the appellants claiming damages for wrongful imprisonment and deprivation of liberty, trespass to the person, trespass to goods, negligent trespass to the person, negligent trespass to goods, negligence, malicious prosecution and misfeasance in a public office. The learned District Court Judge found in favour of the respondent with respect to his claims for trespass to the person (battery), trespass to goods, false imprisonment and malicious prosecution. He awarded the respondent damages totalling $50,936.23, of which $5,000 related to the battery, $936.23 related to the trespass to goods, $15,000 related to the false imprisonment and $30,000 to the malicious prosecution. The claim for trespass to goods concerned damage caused to the respondent's motor cycle. The findings as to trespass to the person and trespass to goods were made against the second appellant only, the findings of false imprisonment and malicious prosecution being made against both appellants. The appellants now appeal against their liability and the awards of damages made against them. The respondent cross-appeals, seeking an increased award of damages.

2 The only witnesses at the trial were the parties in the proceedings and Mr J R Quigley, a solicitor who was advising the respondent at the material time.

3 On 15 January 1997, the respondent was a police officer who was under suspension without pay. He had been a member of the Western Australian Police Force for some 14 years. He lived in a two-storey townhouse in Como. His bedroom was on the upper floor. Shortly after 7.30 am on the morning of 15 January 1997, the respondent, who had taken sleeping tablets at about 2.00 or 3.00 am and who, his Honour found, was still under their effect, was awakened by loud banging noises. His evidence was that he believed his house was being burgled. He got out of bed and went to the window to investigate. He said he could not see any police vehicles in the street or any people outside. He then walked into an adjoining lounge room. He said he knew that the glass sliding door leading to a balcony was still open, and he claimed he was concerned that somebody could climb over the roof of the carport beneath the balcony and so gain access to it. He said that he decided to close the door because, if there was more than one "offender" downstairs, he did not want to be down there confronting somebody while someone else came down the stairs behind him. He therefore squatted down so that whoever was outside the house would not be able to see him, and he closed the door.

(Page 5)

4 The respondent's closing of the sliding door was observed by the second appellant, an acting inspector, who was one of four police officers from the Internal Affairs Unit of the Western Australian Police Force who had come to the premises to execute a search warrant. They were looking for illicit drugs. The appellants' evidence was that they had arrived at the respondent's residence at about 7.05 am. They had observed that the respondent's distinctive BMW motor vehicle and his motor cycle were both parked in the carport and believed that the respondent would be inside the house. They said they had spent a considerable time trying to get someone inside the house to open the door to them.

5 The second appellant climbed up onto the pergola and over to an open window from where he could see the respondent. He said he asked the respondent, "What, are we playing games are we?" The respondent challenged him. The respondent's evidence was that the second appellant then told him that he was "the police" and that he had made a gesture to pull his identification from his pocket. He claimed that his own response was: "Well, if you're the police, get off my pergola and I'll see you downstairs at the door". He said that he then put on a pair of jeans and went straight downstairs to where the banging was taking place.

6 In contrast to the evidence of the respondent, the second appellant said that he had taken out his identification card, opened it up and held it to the window's flyscreen, informing the respondent that they had a warrant to search his premises. According to the second appellant, the respondent, in response to his request to open the door and let the police in, and having looked at his identification and at him, said: "You'll have to break in, won't you?". The respondent then closed the window. The second appellant said that he yelled out in a loud voice to the other police officers: "He won't let us in. We're going to have to break in."

7 There was no direct challenge to the second appellant's evidence that he had shown his identification card to the respondent. Nevertheless, the learned trial Judge said that he "somehow doubted" that the second appellant had taken out his wallet containing his badge and identification and pressed it against the window screen so that the respondent could see it. He accepted the respondent's evidence that he said words to the effect that, if the second appellant was from the police, then he should get off his pergola and he would see him downstairs. The respondent's denial that the second appellant had acted as he claimed was accepted by his Honour on the basis that it was "quite improbable" that he would have told a police officer, who was executing a search warrant, that he would have to break into his house. Moreover, the police did not break into the house.

(Page 6)

8 The respondent's evidence was to the effect that he went downstairs from where banging was still to be heard and saw two police trying to jemmy open the rear sliding door. However, being just a couple of paces away from the front door, he claimed that he turned to open that door. He could see the first appellant waiting outside the door. A short time later, he said, the second appellant also appeared at the door.

9 The first appellant's evidence was that, having heard the exchange between the second appellant and the respondent upstairs, and after the second appellant had shouted down that they were going to have to break in, he had gone to the front door of the house and when he got there, somebody inside the house had shouted, "Who's there?". He identified himself and the door was then opened by the respondent. He claimed that the respondent had looked at the search warrant and had then told the police to go ahead.

10 The second appellant's evidence painted a rather different picture. Having climbed down from the pergola, he said he was wrestling a rear sliding door quite forcefully. He could hear banging at the front door and he then saw the respondent coming down the stairs. He claimed that the respondent had asked him who was at the front door and that he had replied that they were his "offsiders". He requested the respondent to let them in, and he did so.

11 His Honour accepted the evidence of the respondent that he was not at this time shown a search warrant and that, upon the officers identifying themselves and their purpose, he was "happy to let them into his premises". His Honour also accepted that at no time had the respondent objected to the search. Nor did he take any step which could in any way be interpreted as obstructing the officers in their search.

12 The learned trial Judge also accepted the respondent's evidence that, being under suspension without pay, he was obliged to work in other employment and that he had an 8 am appointment in the city where he conducted a business known as Harley Davidson Tours. By the time the appellants and the other officers had been let into the house, and the respondent had gone upstairs to his bedroom to get dressed, he noticed that the time was approximately 7.40 am. The respondent said that the first appellant was then searching in the upstairs area of the house and his Honour accepted that the respondent, while getting dressed, told the first appellant that he, the respondent, had to leave as he had an appointment and that, if he was not under arrest, he was free to go. The first appellant, according to the respondent, agreed.

(Page 7)

13 The respondent's evidence was that he had also asked the second appellant if he was under arrest and that the second appellant had replied in the negative. The second appellant denied that this had been asked of him, but said that he had heard the respondent inquire from the first appellant whether he was under arrest and heard his being told by the first appellant that he was not. The learned trial Judge made no finding on these matters.

14 The respondent then made a telephone call to someone to explain that he would be late for his appointment, and said he had told the second appellant that he was quite happy for him to continue with the search as long as he locked up when he left. He walked out to the carport, on the way picking up his crash helmet, his gloves and his glasses.

15 It was common ground that it was standard police procedure in executing search warrants, particularly under the Misuse of Drugs Act, to which this warrant related, to require that the search be conducted, if at all possible, in the presence of the householder. If that were not possible, then the search was required to be conducted in the presence of a Justice of the Peace or of some disinterested senior officer. If the householder chooses to leave during the progress of a police search, then the search is suspended until a Justice of the Peace or a disinterested senior police officer can be brought to the search site.

16 The first appellant's evidence as to the discussions about the respondent's leaving the premises was somewhat different. He said that when he was asked by the respondent if he was under arrest, he had replied, "No, Nick, you're not under arrest but all we need is your co-operation. The sooner we get it done, the sooner we can go." The first appellant went on to say that the respondent then said, "If I'm not under arrest, I'm going". He said his response to this was: "Fair enough if that's what you want to do". The first appellant then said that, as he saw the respondent walk out through the front door, followed by the second appellant, he went back upstairs to tell the other officers what had happened and, having done that, he came back downstairs again to see what the respondent was doing. He said he needed to know whether the respondent had gone, or whether he was still there, because the further action he took depended on whether or not the respondent was going to stay. His Honour then observed:

"Whilst this is nearly enough accurate as I find, it is not quite so although for the purpose of my decision in the matter the difference is not that material. For completeness however I

(Page 8)

should say that I think that it is more probable than not that the [first appellant] would have heard the motor cycle running and would have known that the [respondent] was preparing to make good his stated intention of leaving the premises."

17 The second appellant said that, as the respondent left the house, he followed him out and "… just stated to him that we only wanted his co-operation and if he co-operated it wouldn't take us long and we'd be out of there. He kept on repeating that if he wasn't under arrest he was leaving. I followed him into the carport where there was a BMW car which was facing forward out of the carport toward the road and a Harley Davidson motorbike also parked facing toward the front. He started up the bike and I said that as a police officer I was ordering him to stay while I asked him questions regarding our inquiry." There was no evidence that either of the appellants had previously sought to ask the respondent any questions regarding their inquiry.

18 The second appellant claimed that he was entitled to order the respondent to stay at the house by reason of the respondent's being a police officer and that he, being a senior officer, was permitted to give the order pursuant to reg 603 of the Police Regulations 1979. By reason of the fact that the only consequence of disobeying the lawful order of a superior was a potential reference to a disciplinary tribunal and that it did not render the respondent liable to arrest, his Honour said it was not necessary for him to resolve the question of whether or not it was a lawful order, but he added, somewhat gratuitously: "For what it is worth, in my opinion it was not". What mattered, his Honour went on to say, was that the second appellant was prepared to use the order in an attempt to prevent the respondent's departure, giving a strong indication of his depth of feeling on the matter. His Honour then proceeded to express the opinion that the second appellant would have been quite irritated by the respondent's insistence on leaving the premises during the conduct of the search.

19 It was common ground that the second appellant's order to the respondent to remain at the premises was given while the respondent was standing alongside his motor cycle. The respondent disputed the second appellant's right to give him the order, having regard to the fact that he was under suspension, and he proceeded to put on his helmet, gloves and glasses and, having started the motor, he sat astride his motor cycle. He described the noise of his idling motor cycle as being extremely loud, and his Honour inferred that the noise of the motor cycle in the enclosed

(Page 9)

carport would have been heard by the first appellant from inside the house.

20 The second appellant's evidence was that, when the respondent mounted his motor cycle, he had asked the second appellant to get out of the way, to which he replied, "I'm not in your way". At this time, he said, he was probably level with the front of the front wheel of the motor cycle and standing a couple of feet to his left hand side. The motor cycle would have been about a foot to 18 inches away from the side of the car. The motor cycle was between the second appellant and the car.

21 The respondent's evidence was that the second appellant was unresponsive to his request to move out of the way and that he then engaged the clutch with his left hand and put the motor cycle into gear with his left foot. Once he had engaged the first gear, and without accelerating the motor cycle at all, he said he very gently applied the clutch and let it move forward very slowly. He said that by reason of the second appellant's position, he was unable to ride directly out of the carport at a slight angle, but had instead to manoeuvre the motor cycle's right handlebar around the exterior rear vision mirror of his car. His motor cycle was just a matter of inches away from the car. He was concerned about hitting the rear vision mirror, which was well below his eye level and he was looking down at it as well as glancing across at the second appellant, who was then standing about a foot or "maybe" 18 inches away to his left and slightly in front of him. He glanced at the second appellant to make sure he was not in a position where he was going to obstruct the respondent from leaving. After he had manoeuvred the motor cycle past the mirror, with both his feet on the ground, still without applying any acceleration, he said its front wheel would have been very close to being level with the front of his car when, without warning, the second appellant grabbed his left hand, which had been on the clutch, and pulled it away from the handlebar. Because the motor was idling in choke, there was still sufficient engine power when the gear engaged and the motor cycle lurched forward for no more than a couple of feet, until it stalled. At this time, he had only one hand on the handlebars. The second appellant, he said, grabbed the left handlebar with his other hand and proceeded to pull the whole machine over to the left, almost as if it were in one motion. As he explained it, his hand was pulled from the motor cycle and all of a sudden it was going over to his left and he was on the ground, having hit the concrete carport floor. Once his hand had been pulled from the machine, he said, everything became slightly blurry and happened quickly.

(Page 10)

22 The respondent claimed that, up to this time, he had not seen the first appellant since he had walked out of the house. He first saw the first appellant, he said, when he had stood up after having been pulled from his machine. He called both appellants "bastards". He struggled on his own to right his motor cycle. At this stage, he recalled the first appellant telling him that he was under arrest. The second appellant then repeated that he was under arrest. Neither of them, he said, came into physical contact with the respondent. He was not asked any questions about what had just occurred. He righted the machine with great difficulty, put it up on its stand, switched off the ignition and took off his helmet. At this time, he said, he was livid and pretty angry. He walked back inside the house, followed by the appellants. He telephoned Mr Quigley and the President of the Police Union, as well as telephoning another person to say that he would not be able to make his 8 o'clock appointment. He then made himself a cup of coffee. In the meantime, the search of his house was continuing.

23 It is convenient now to pick up his Honour's reasons, commencing with the first appellant's version of the events after he had come out to the carport. I have used square brackets to describe the parties as the first and second appellants and the respondent. The remaining square brackets form part of his Honour's written reasons:

"[19] … 'I saw the [respondent] seated on his motor cycle. He was sitting on the motor cycle. The engine was going and he had on a black open faced helmet and [the second appellant] was standing to his left and they were engaged in some earnest conversation. [The respondent] was shaking his head but I couldn't hear what was being said at the time. [The motor bike engine was running at the time. It was a noisy engine]. I was walking slowly across the front of the BMW [motor car] which had been reversed into the carport. I started off with perhaps a metre and a half, two metres [in front of the BMW motor car] and then I was walking slowly towards where they were. I was looking at those two. As I crossed the front of the BMW motor car [the second appellant] looked at me, followed shortly after by [the respondent] who also looked at me. I continued to walk. It was my intention to walk to the side of - and stand by the side of [the second appellant] and I was walking across the front of the BMW and across the front of the motor cycle. I would have been about a metre from the front of the motor cycle

(Page 11)

when it suddenly raced towards me and it struck me. [At the time [the respondent] looked at me there was nothing between him and me and I was about a metre away from him]. [The first appellant was then asked to describe how and where the motor cycle hit him and he stood up in the witness box and demonstrated and testified further]. The front wheel of the motor cycle went in between my legs here and something hit me on the shoulder and the arm. I think it was the handlebar that hit me on the top of the arm here. I am not sure what hit me on the forearm. [Then] I sort of flinched and I tried to get out of the way and with the force of the motor cycle hitting me and trying to get out of the way, I stumbled backwards and backed onto the parked vehicle and was sort of supported by the vehicle. I didn't fall to the ground.'

[20] [The first appellant] was then asked if he had seen [the second appellant] interfere with [the respondent] or the motor cycle in any way. He testified that he had a clear view of the handlebars of the motor cycle and [the respondent] but he did not see [the second appellant] reach out and grab [the respondent's] arm or the handlebars testifying that he would have seen it if it had happened.

[21] [The first appellant] then said that he spoke to [the respondent], saying, "You're under arrest for assaulting me", but that prior to that point [the respondent] was repeating, "you bastards" to both him and [the second appellant]. Next he says "[the second appellant] then put his hand on [the respondent's] shoulder and said, 'You're under arrest Nick' or words to that effect.

[22] [The second appellant] said that he followed [the respondent] out of the front door of the house:


'… and just stated to him that we only wanted his co-operation and if he co-operated it wouldn't take us long and we'd be out of there. He kept on repeating that if he wasn't under arrest he was leaving. I followed him into the carport where there was a BMW car which was facing forward out of the carport toward the road and a Harley Davidson motor bike also parked facing toward

(Page 12)

the front. He started up the bike and I said that as a police officer I was ordering him to stay while I asked him questions regarding our inquiry. [At this time] he was off the bike. He said, 'I'm not a police officer any more' or he said he wasn't in the police force any more. I asked him if he was still a police officer. He said he wasn't being paid. I said, 'You are still a police officer and as such I'm ordering you to stay while I ask you questions'. He said, 'If I'm not under arrest, I'm leaving'. I said, 'You know you're not under arrest'. [Then] he got on his motor bike, put on his helmet and got seated on the bike ready to leave. It was an open faced helmet. I can't recall if he was wearing any glasses or sunglasses … [He] asked me to get out of the way. I said, 'I'm not in your way' which I wasn't. I was probably level with the front of the front wheel of the bike and standing a couple of feet to his left hand side. Away from the car and the bike. And the bike I suppose would have been a foot to 18 inches away from the side of the car. He edged the bike forward or it came forward slowly. Now whether he did something with the controls to make it move forward or whether he - because he had his feet on the ground, whether he moved it forward, I don't know, but he came forward a short distance, a foot or so, and said something. I didn't hear what he said. It was quite noisy with the motor bike going. At that point I picked up some movement to the side and turned around or looked to the side and it was - [the first appellant] was coming out of house … but when I turned to look, [the first appellant] was coming around the divide, if you like, between the carport and the entrance to the house. And was coming around that, walking in front of the car and then round towards us. [I was looking] at [the first appellant]. [Then] the motor bike accelerated and crashed into [the first appellant]. Well, I mean, I'm sort of looking to my left, to the front of the BMW, the motor bike would have just been over here and the bike was moved forward and he's moved forward, he's on the bike, obviously, and crashed into [the first appellant] who I was looking at. [I heard] the motor revved quicker. [The first appellant was] about a metre [from the motor bike when it moved forward]. He was about level with the front passenger

(Page 13)

side wheel of the BMW car. [Then] it all happened very, very quickly. I was concerned for [the first appellant], obviously, and I grabbed the handlebar and [the respondent's] arm and reefed him back towards me away from [the first appellant] and pulled the bike over. [Prior to the bike moving forward and striking [the first appellant] I had not made any contact with either the bike or [the respondent]]. [Then] the bike went down. [The first appellant] was sort of half on the bonnet, if you like, of the car and sort of tried to get himself right and [the respondent] was trying, I think, to prevent the bike going all the way down. I think he had his foot out and was calling out 'bastard' or 'bastards', I can't specifically remember, and he was quite upset. [The first appellant] [then] advised him that he was under arrest for assaulting him. I put my hand on [the respondent's] shoulder and reiterated, 'Do you understand you're under arrest for assault?'. [The respondent] put the bike upright and from memory he took the key out, turned it off, the ignition key, and [the first appellant] walked inside. [The respondent] followed him inside and I followed him inside.'

[23] [The second appellant] then says that inside the house [the respondent] was either going to make a coffee or he put the kettle on, one or the other, but he certainly saw him put the kettle on and then take some cigarettes and he may have lit a cigarette, he made himself a cup of coffee and then he made a telephone call which, according to [the second appellant's] version of events was to his solicitor Mr Quigley's then partner, Mr Coulson, in consequence of which a short time later Mr Quigley telephoned [the respondent]."

24 The respondent was taken to the Internal Affairs Unit offices in Belmont, and placed in an interview room, although he was not interviewed. He claimed that he made repeated requests that he be released to bail; but he was ignored. After approximately half an hour at the Belmont offices, the decision was made to proceed against the respondent by way of summons for his alleged assault upon the first appellant. The respondent was then released from custody and shortly afterwards he was served with a summons to appear in court on a charge of assaulting a public officer. The complainant was the first appellant.

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On 17 October 1997, he was tried before a Judge and jury in the District Court. He was acquitted of the charge.

25 The learned trial Judge's conclusions were expressed by him as follows:

"[26] I find, on the balance of probabilities, that [the respondent's] version of events is more accurate than that of [the appellants]. I find that, while seated astride his motor cycle with the engine going, the [respondent] was slowly releasing the clutch with his left hand permitting power to go to the drive wheel of the motor cycle allowing it to move forward slowly when the second [appellant], irritated that his direct order to the [respondent] to remain for questioning even whilst not under arrest had not been obeyed, reached out and grabbed the [respondent's] arm to prevent him from leaving and in so doing took his arm off the clutch which in turn caused the motor cycle to lurch forward. At this moment the first [appellant] was approaching from the front of the BMW motor car and whilst he clearly had the [respondent] and the second [appellant] in view, those two were so engrossed in their confrontation that [the respondent] did not see the [first appellant] approaching, and the motor cycle in lurching forward hit the first [appellant] as he came out from the front of the BMW motor car into the front of the motor cycle. I find however that the first [appellant] was not struck in the manner he alleges. I find his version of these events to be quite improbable. If the motor cycle was accelerating in the manner suggested by each of the [appellants] so that the entire weight of this very heavy machine was taken between the legs by the first [appellant] there would have been evidence of other injury but the only evidence of any injury to the first [appellant] was by way of a very minor bruise to his upper left arm and another minor bruise to the inside of his left forearm. I find that these were caused by the handlebar of the motor cycle. And it was the handlebar of the motor cycle coming forward as the motor cycle lurched that struck the first [appellant] and, as may be clearly envisaged with the assistance of the photographs, almost pinned the first [appellant] between the motor cycle and the BMW motor car until

(Page 15)

the second [appellant] succeeded in pulling the [respondent] on his motor cycle down to the ground.

[27] Accordingly, it can be seen I reject the second [appellant's] evidence that he did not pull the [respondent] from his motor cycle until after the motor cycle had struck the first [appellant]. I find that it was the second [appellant's] pulling of the [respondent's] left arm that caused the motor cycle to hit the first [appellant] and that the striking of the first [appellant] by the motor cycle was accidental in the sense that it was not intended either by the [respondent] or, obviously, by the second [appellant]. It was an unintended consequence of the actions of the second [appellant]. I should make it plain too, that I find it highly improbable that this [respondent] would have deliberately run his motor cycle at the first [appellant]. Whilst I appreciate that the discernment of credibility of witnesses from the demeanour of witnesses whilst giving evidence is a thoroughly difficult task for a judge sitting alone, and that that difficulty is probably compounded by the fact that the three parties in this action are all experienced police officers and, it may be inferred, experienced witnesses, I nevertheless formed the clear impression that the [respondent] was a controlled type, probably more controlled than the second [appellant], more in charge of both himself and the situation than the second [appellant]. There would be no reason that I can discern, on the evidence, or in my assessment of the credit and character of the parties, why this [respondent], an officer in the Western Australian Police Force under suspension without pay, his future in the balance, would do anything as foolhardy as deliberately driving his motor cycle into another policeman whilst yet another policeman stood and watched.

[28] Additionally, it is truly remarkable that if, as each of the first and second [appellants] would have me believe, the [respondent] deliberately ran his motor cycle into the first [appellant], why neither of them, having ample opportunity to do so, asked him why he did it. It must have struck them as being truly remarkable that a police officer, albeit a police officer under suspension, would try

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and run down another police officer. There was no evidence from either of the [appellants] that the [respondent] was angry, agitated or out of control. The only evidence of his anger was after he had been pulled from the machine. He was subsequently investigated in respect of some comparatively trifling matters of the video and the photograph but not asked about his motivation in relation to the most serious allegation of them all. I've already found that the [appellants] had ample opportunity to ask the [respondent] for his reasons. It was submitted to me that the opportunity for this inquiry was relatively limited because of the directions given by Mr Quigley to each of the [appellants] that they were not to question the [respondent] further, that he would refuse to answer their questions and the like. As is obvious that didn't deter investigation in relation to the alleged pornographic video and the photograph.

[29] In relation to the arrest I find that the first [appellant] was certainly struck by the motor cycle, but not in the way he says. He too was obviously concerned to keep the [respondent] at the premises whilst the search continued as witness the evidence of the second [appellant] that the first [appellant] told the [respondent] he was not under arrest but that he wanted his co-operation in the conduct of the search, meaning he wanted him to stay until the search was complete. Because of the first [appellant's] deliberate and considered testimony that he had the second [appellant] clearly in view at all material times and that he did not see him touch the [respondent] or his motor cycle before the [respondent] accelerated into him deliberately, he alleging he had made eye contact with the [respondent] immediately beforehand, and being prepared to say that he was under no doubt but that the [respondent's] actions were deliberate, (all of which I reject) it follows from my previous findings that the first [appellant] used the occasion of him being accidentally struck by the motor cycle, as I have found, to arrest the [respondent] for an alleged assault and thereby prevent the [respondent] from leaving. This, I find, was his motive.

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[30] As regards the second [appellant], in my opinion he saw the opportunity that the first [appellant's] actions had [led] to the situation and decided independently to act in support of the first [appellant] by also telling the [respondent] that he was under arrest."

26 The appellants' grounds of appeal go into very considerable detail in challenging the findings of fact made by his Honour, findings based in large measure upon the credibility of the parties. In this regard, however, the appellants have undertaken a considerable burden. The relevant authorities are well known, but it is useful to restate them.

27 A common starting point is the decision of the House of Lords in SS Hontestroom v SS Sagaporack [1927] AC 37, in which Lord Sumner said, at 47:

"[N]ot to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment a trial judge's conclusions of fact should, as I understand the decisions, be let alone."

28 After citing this passage in Abalos v Australian Postal Commission (1990) 171 CLR 167, at 178, McHugh J, with whose judgment Mason CJ, Deane, Dawson and Gaudron JJ agreed, went on to say:

"Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied "that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion: Watt or Thomas v Thomas [[1947] AC 484, at 488]."

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29 At 179, McHugh J reiterated the point made by him in Jones v Hyde (1989) 63 ALJR 349, at 351, that when a trial Judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked and it does not follow that because the trial Judge in Abalos v Australian Postal Commission made no express reference to the demeanour or credibility of either of two witnesses, demeanour or credibility played no part in her findings on the central issue of fact in that case.

30 Subsequently, in Devries v Australian National Railways Commission (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ said, at 479:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. [See Brunskill (1985) 59 ALJR 842; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167]. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" [SS Hontestroom v SS Sagaporack [1927] AC 37 at 47] or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" [Brunskill (1985) 59 ALJR at 844]."

31 Deane and Dawson JJ took a somewhat less restricted approach. At 479 - 480, their Honours said:

"An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The "value and importance" of that advantage "will vary according to the class of case, and, … [the circumstances of] the individual case [see Watt (or Thomas) v Thomas [1947] AC 484 at 488, per Lord

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Thankerton]. If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little consequence or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge's conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence."

32 They continued, at 480:

"In a case where it appears that a challenged finding of fact has, to a significant extent, been based on the trial judge's observation of the demeanour of the witnesses, the members of an appellate court are inevitably placed in a position of real disadvantage compared with the trial judge. Even in such a case, however, the "court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions" [The Glannibanta (1876) 1 PD 283 at 287 per James LJ, Baggallay JA and Lush J referred to by Dixon CJ and Kitto J in Paterson v Paterson (1953) 89 CLR 212 at 219]."

33 In State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306, at 317 [63], Gaudron, Gummow and Hayne JJ re-emphasised the responsibility of a court of appeal in these matters, saying:

"It is true that the trial judge, in determining whether to accept the evidence of Mrs Page was heavily swayed by his impression of her whilst giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable."

See also Kirby J, at 324 [77] and following.

34 In Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599, Gleeson CJ, Gaudron, Kirby and Hayne JJ confirmed the approach to be taken by an appellate court when reviewing a primary Judge's findings of fact, as set out in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq). At 603 [16], their Honours said:

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"Tamberlin J then went on, assigning detailed reasons, to express his views on the reliability of the four witnesses concerned. In each case those views were based in part upon observations made, and impressions formed, concerning the demeanour of the witnesses, but they also turned in part upon reasoning as to the plausibility of certain parts of the evidence of the witnesses, considered in the light of what Tamberlin J had referred to as "the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence". This was an orthodox and sensible approach to the matter."

35 Finally, in Walsh v Law Society (NSW) (1999) 198 CLR 73 at 91 - 92, McHugh, Kirby and Callinan JJ said:

"Some aspects of the appellate procedure will remain the same where the appeal is conducted solely on written materials, whether those materials be technically evidence in a de novo hearing or the record under consideration in an appeal under s 75A of the Supreme Court Act. In either case, the appellate court will be bound generally to defer to any conclusions on the questions of credibility formed by the court or tribunal from whom the appeal is brought where the latter has seen and heard the witnesses. In particular circumstances, it will be open to an appellate court to reach conclusions contrary to those of the court or tribunal below, notwithstanding a credibility finding. Sometimes it will be authorised to reject those findings where they are 'glaringly improbable' or 'contrary to compelling inferences of the case'. But the caution required of all appellate courts in such matters has long been recognised and frequently upheld in decisions of this Court." (References omitted)

36 It is with this background that I approach ground 1 of the grounds of appeal, which is in the following terms:

"1. The trial Judge erred by failing to have regard to or recognise that the strength of the evidence necessary to establish the plaintiff's case was related to and dependent upon:

(a) the very serious nature of the allegations made against each defendant;

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(b) the inherent unlikelihood of the defendants having embarked upon a conspiracy of a kind alleged by the plaintiff (especially when, on the plaintiff's case, there was no occasion for the defendants to discuss their alleged joint course of action before embarking upon it);

(c) the gravity of the consequences flowing from the plaintiff's allegations

and that therefore clear and cogent proof of the plaintiff's allegations was required."

37 In support of this ground of appeal, reliance was placed upon Briginshaw v Briginshaw (1938) 60 CLR 336. In that case, at 360, Dixon J said:

"At common law two different standards of persuasion developed. It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden of proving which lie upon the prosecution. In civil cases such a degree of certainty is not demanded."

38 At 361 - 362, his Honour went on to say:

"The truth is that, when the law requires the proof of any fact, a tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are

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considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences."

39 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 171 , Mason CJ, Brennan, Deane and Gaudron JJ, having cited the passage from Briginshaw regarding the consideration of the seriousness of an allegation, commented:

"There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading."

They observed that, in that case, it was so, and at 172, they went on to say:

"When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial Judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial Judge to determine the issue by reference to the balance of probabilities."

Their Honours, having commented that the trial Judge dealt with the matter on the balance of probabilities, and that he was correct in doing so, continued:

"The judgment contains no express reference to any requirement of clear, cogent or strict proof. However, in a context where the issue in the case had effectively resolved itself into which of Karajan (acting through the personal respondents) and Neat Holdings (acting through Mr Gundill)

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had been guilty of deliberate falsification of its records of takings, the omission of any such reference neither involves nor indicates error on his Honour's part. To the contrary, the particular circumstances of the present case and for the reasons which we have given, any such reference would have been unhelpful."

40 In the end, the central issue in this case was as to what had occurred in the respondent's carport during what was probably a period of less than a minute and, in particular, as to whether the respondent had intentionally driven his motor cycle into the first appellant or whether any contact between the motor cycle and the first appellant had resulted from the second appellant's removing the respondent's hand from the clutch and so causing the motor cycle to lurch forward and to come into contact with the first appellant. There is nothing in the reasons for judgment to indicate that the trial Judge was unaware of the seriousness of the competing allegations, and consistently with the reasoning in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, the fact that the judgment contains no express reference to any requirement of clear, cogent or strict proof "neither involves nor indicates error on his Honour's part".

41 His Honour expressly recognised, as set out in the passage previously quoted from his reasons at par [27], that the discernment of the credibility of witnesses from their demeanour while giving evidence "is a thoroughly difficult task for a Judge sitting alone" and that his difficulty was probably compounded by the fact that the three parties in the action were all experienced police officers and, it may be inferred, experienced witnesses. But, he said, he nevertheless had formed the clear impression that the respondent was a controlled type, probably more controlled than the second appellant, and more in charge of both himself and the situation than the second appellant. This impression could only have been obtained from seeing and hearing the respondent giving evidence in the witness box. He also observed, no doubt having regard to the respondent's being "controlled", that there would be no reason that he could discern on the evidence, or in his assessment of the credit and character of the parties, why the respondent, an officer in the Western Australian Police Force under suspension without pay, and his future being in the balance, would do anything as foolhardy as deliberately driving his motor cycle into another policeman while yet another policeman stood by and watched. Less significant was his observation that if, as each of the appellants would have him believe, the respondent had deliberately run his motor cycle into the first appellant, why neither of them asked why he had done it.

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42 The learned trial Judge made it clear in various parts of his judgment that he accepted the evidence of the respondent on particular issues and he provided reasons for his concluding that he accepted the evidence of the respondent and rejected the evidence of the appellants in connection with the incident in the carport with the motor cycle.

43 As to the "conspiracy" referred to in par (b) of the first ground of appeal, counsel for the respondent disclaimed any suggestion that the appellants had embarked upon any conspiracy in the sense of staging the incident in which the first appellant came into contact with the respondent's motor cycle. The respondent's case was that it was the second appellant who was guilty of battery and that the subsequent events flowed on from that.

44 For the appellants, it was argued that the trial Judge did not bring a significant principle of law to account in the fact finding process. If it had been intended to convey by this that the learned trial Judge was required to state the principles of fact finding in his judgment, I am unable to accept that there was any such obligation. I am also unable to accept the contention on behalf of the appellants that his Honour's findings are inherently improbable. I do not consider that the trial Judge fell into any error as claimed in ground 1.

45 Ground 2 of the grounds of appeal provides as follows:

"2. The trial Judge erred in making findings on matters in respect of which the plaintiff's evidence differed from the evidence of the defendants without ascribing any reason to his finding which on occasions appeared to be intuitive and not based upon any findings as to the demeanour of the witnesses and in respect of which there was no inherent probability supporting the findings made.

Particulars

(a) The trial Judge found (at paragraph 6) that he "somehow" doubted that the second defendant showed his police identification to the plaintiff notwithstanding that he accepted that the second defendant told the plaintiff he was a policeman and that production of identification would be a natural and probable response to the plaintiff's inquiry.

(Page 25)

(b) The trial Judge (at paragraph 8) that the plaintiff was not shown a search warrant at the commencement of the search when both defendants testified that he was and that such testimony is inherently likely.

(c) The trial Judge found (at paragraph 10) that the first defendant was searching the upstairs area of the plaintiff's home when that was not the evidence of any witness.

(d) The trial Judge found (at paragraph 26) that the plaintiff's version of the events at the time of his arrest in the carport was more accurate than that of the defendants, when there was nothing improbable in the consistent evidence given by each defendant, and the evidence accepted by the trial Judge is inconsistent with:


(i) the undoubted fact that the first defendant was struck by the motor cycle, given that on the plaintiff's evidence the second defendant was pulling the motor cycle towards himself and away from the first defendant;

(ii) the findings of the trial Judge that the first defendant's injuries were caused by being "almost pinned" between the right handlebar of the motor cycle and the motor car, when on the plaintiff's evidence the motor cycle was being pulled to the ground at the left hand side of the motor car;

(iii) the evidence of all parties that the plaintiff accused both defendants of being "bastards" before he had been arrested and at a time when on his evidence the first defendant had done nothing to incur the plaintiff's wrath;

(iv) the plaintiff's evidence that he was looking forward at the time of starting to leave the carport but did not see the first defendant before striking him;

(v) the plaintiff's evidence that the defendant had no opportunity for any discussion in the carport before embarking upon their conspiracy.

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(e) The trial Judge found (at paragraph 29) that the first defendant was "obviously concerned to keep the plaintiff at the premises" when there was no evidence to that effect - the uncontested evidence being that the search could have continued after an independent police officer or Justice of the Peace had arrived, and the matter not having been put to the first defendant in cross-examination.

(f) The trial Judge rejected (at paragraph 29) the first defendant's evidence of the events in the carport without giving any reason for so doing, and it could not be said that the first defendant's evidence was improbable and it was corroborated by the objective fact of his injuries."

46 It is apparent that, on some occasions, the learned trial Judge did make observations, if not findings, which were unnecessary and unhelpful as, for example, in relation to the matter raised in particular (a) of this ground of appeal. It is, however, sufficiently clear that each of the trial Judge's significant findings was based upon his assessment of the credibility of the three parties to these proceedings.

47 The evidence of the respondent was that the police officer who had climbed onto the pergola had said something to him which he could not really recall. Initially, he said, he had no idea that the second appellant was a police officer. He was wearing ordinary clothes. Asked whether he was shown any identification or "anything like that", he said, "Not at that stage, no". He then went on to say that he had walked over to the window and asked who this person was. The reply was that he was the police and the respondent thought that he made a gesture to pull his identification from his pocket. In cross-examination, he said he saw this person put his hand in his pocket and pull out a black wallet. He claimed that he did not actually see "the badge", but that he did see the black wallet. He denied that the badge was produced and held up to the window screen. This issue was certainly not central to the trial. Nevertheless, his Honour did expressly accept the respondent's denial that the second appellant, having held up his police badge to the screen, had told the respondent: "We've got a warrant to search your premises. I require you to open the door and let us in." His Honour also accepted the respondent's denial that he had told the second appellant that they would have to break in. The second appellant's evidence was that he then yelled out to the other members of the search team that the respondent would not let them in and they were

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going to have to break in. It is to be noted that the two other members of the team accompanying the appellants were not called to give evidence.

48 Having regard to the evidence before him, the learned trial Judge was not required to find that the second appellant's identification had been produced because it would be a "natural and probable response" to the respondent's inquiry. The second appellant's evidence was rejected because his Honour preferred the evidence of the respondent, as he was entitled to do.

49 In relation to the search warrant, the respondent's evidence was that when he went downstairs and opened the door, the first appellant said to him, "We're from Internal Affairs. We're the police. We've got a search warrant to search your premises." He said he was not shown the search warrant "at that stage", but that he was quite happy to let the police in. In cross-examination, he said that although he was never shown the warrant, he had opened the front door and he repeated that he was quite happy to let the police in. He also said that he had asked to see the search warrant, but that he was totally ignored by all the people who were there. He was not cross-examined regarding this evidence, although the first appellant later gave evidence that he had explained to the respondent that he had a search warrant to search his house, that the respondent simply said 'Go ahead and search' and that there was a conversation in the course of which the respondent looked at the search warrant and inquired whether he was to get a copy of it. The learned trial Judge, in the circumstances, was not obliged to reject the evidence of the respondent and to accept that of the appellants for the reason that the appellants' evidence was "inherently likely". Moreover, this issue was peripheral. It was, however, another indication that where there was a conflict between the evidence of the respondent and that of the appellants, the learned trial Judge preferred the evidence of the respondent.

50 The complaint in par (c) of the particulars of ground 2, that the trial Judge found that the first appellant was searching the upstairs area of the respondent's home when that was not the evidence of any witness, overlooks the evidence of the respondent that, after the four police officers had entered the house, "everybody proceeded to go upstairs in the townhouse and I, sort of, followed them along and went upstairs with them". He said that he got dressed while the search was under way. Once again, this matter is peripheral to the principal issue.

51 Particular (d) complains of the trial Judge's acceptance of the respondent's version of the events at the time of his arrest in the carport,

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when there was nothing improbable in the consistent evidence given by each defendant, and the evidence accepted by the trial Judge was inconsistent with the matters set out in the particulars. The difficulty I find with this contention is that the first appellant's evidence was that the front wheel of the motor cycle went in between his legs and that something hit him on the shoulder and the arm. He said he thought it was the handlebar that had hit him on the top of his arm, but he was not sure what had hit him on his forearm. He said he "sort of flinched" and tried to get out of the way and, with the force of the motor cycle hitting him and his trying to get out of the way, he stumbled backwards and backed onto the parked vehicle and was "sort of supported" by the vehicle. There was, however, no evidence of any injuries whatever to the first appellant's legs by reason of the front wheel of the motor cycle having gone between them. The photographs tendered in evidence indicate quite clearly that the handlebars of the motor bike are raked well back and that they are well behind the front wheel. The very minor bruising shown in the photographs of the first appellant and claimed to have been sustained by him in the incident is not consistent with his evidence and that of the second appellant as to the motor cycle suddenly accelerating towards him and striking him or crashing into him as it was described by the appellants.

52 The respondent's evidence, to which I have already referred, on the other hand, is consistent with the injuries sustained by the first appellant. The finding of the learned trial Judge was that the first appellant's injuries were caused by the handlebar of the motor cycle, and that it was the handlebar of the motor cycle, as it lurched forward, that had struck the first appellant and "almost pinned [him] between the motor cycle and the BMW motor car until the second [appellant] succeeded in pulling the respondent off his motor cycle down to the ground".

53 The events occurred in a confined space and in a very short period of time while the respondent was manoeuvring a heavy motor cycle. A precise reconstruction of the events is difficult to achieve; but his Honour's finding that the first appellant was almost pinned between the motor cycle and the car until the second appellant succeeded in pulling the respondent off his motor cycle is not, in my opinion, inconsistent with the respondent's evidence. Nor, in the circumstances, is it inconsistent with the second appellant's pulling the motor cycle to the ground at a time when the respondent must inevitably have lost control of the machine, his left hand having been pulled away from the clutch.

(Page 29)

54 The contention that the respondent accused the appellants of being "bastards" before he had been arrested and at a time when, on his evidence, the first appellant had done nothing to incur the respondent's wrath, is of little moment. The outburst must be placed in perspective. Asked why he had used the expression when he had no reason to think that the first appellant had done anything adverse to him, he replied that it was simply what he said at the time, because both officers were standing there. If the events occurred as he claimed, the respondent was likely to be indiscriminate in his outburst in relation to those who had been jemmying his back door, climbing onto his pergola, and holding him up from pursuing his employment at a time when he was suspended without pay, and when it was accepted that he was not under arrest and had been told by the first appellant that he was free to go. On his evidence, he had told the first appellant that he was quite happy for the police to continue their search as long as they locked the place up when they left, but out in the carport he had been ordered not to leave the premises.

55 As to what was said to be the respondent's evidence, that he was looking to his front at the time of starting to leave the carport, although he claimed he had not seen the first appellant before any impact had occurred, he gave the explanation which has previously been referred to. His Honour accepted his evidence, as he was entitled to do. The particular (d)(iv) conveys an erroneous impression, insofar as it describes the respondent's evidence as being that he was looking forward. He had no reason to suspect that someone would walk across in front of his motor cycle at a time when he had just been slowly moving forward. He was conscious of the rear vision mirror on his car, which was just to his right, and of the position of the second appellant, who was about a foot or 18 inches on his left-hand side. The respondent said he was looking down at the car and glancing across at where the second appellant was standing. In my view, the respondent's evidence was not inconsistent with his Honour's reasons.

56 As to the assertion that the appellants had no opportunity for any discussion in the carport before embarking upon their "conspiracy", it needed no pre-arrangement for the first appellant to arrest the respondent for assaulting him. Matters moved on from that point. It was open to the learned trial Judge to form the view, which he did, that the second appellant had seized the opportunity which the first appellant had presented, and had decided independently to act in support of the first appellant by also telling the respondent that he was under arrest.

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57 The criticism in particular (e) of ground 2 cannot be sustained. What his Honour said of the first appellant was that he, too, was obviously concerned to keep the respondent at the premises while the search continued. For this, his Honour relied upon the evidence of the second appellant, which was as follows:

"He asked Sgt Weir if he was under arrest and in the meantime we were continuing on in the search and Sgt Weir explained to him that he wasn't under arrest and that we only wanted his co-operation. He said if he wasn't under arrest then he was leaving and Sgt Weir again explained to him that he wasn't under arrest and that we just wanted him to co-operate … I'm not quite sure whether he again asked if he was under arrest and it was clarified that he wasn't. Anyway he said that he was going and he walked out the front door."

The second appellant conceded that he then made no attempt to stop the respondent; but he repeated that they only wanted his co-operation and if the respondent co-operated it would not take them long and they would be out of the place. What co-operation was being sought from the respondent was never stated. It was after the respondent had started up the motor cycle when he was ordered by the second appellant to remain at his house.

58 The first appellant, in his cross-examination, accepted that he would have "preferred" that the respondent remain on the premises during the search. He denied that it would have been highly inconvenient for the respondent to have left; but he accepted that it would certainly be easier and quicker, and they "could get the thing done", if he did not leave. The reality was that his leaving the premises would necessitate other arrangements being made for an independent person to be present while the search continued.

59 The learned trial Judge, in my opinion, was entitled to reject the appellants' evidence of the events in the carport and to accept that of the respondent.

60 Ground 3 provides as follows:

"3. The trial Judge erred in making findings based upon his assessment of the inherent probabilities of the particular fact when the probabilities did not in fact support such findings.

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Particulars

(a) The trial Judge found (at paragraph 6) that the plaintiff did not tell the second defendant that he would have to break in when on the evidence of all parties the plaintiff was covertly attempting to close the upstairs sliding door to keep people out.

(b) The trial Judge found (at paragraph 27) that it was highly improbable that the plaintiff would have run his motor cycle at the first defendant when it was no less probable than the plaintiff's assertion that:

(i) the second defendant pulled the motor cycle to the ground

(ii) the first and second defendants embarked upon an elaborate and sustained conspiracy without ever having had the opportunity to discuss their joint conduct amongst themselves."

61 Ground 3(a) does not accurately summarise his Honour's reasons. What his Honour said was as follows:

"The second defendant went on to say that he then yelled out to the other members of the search team that the plaintiff would not let them in and they were going to have to break in. This was put to the plaintiff who emphatically denied it. I accept the plaintiff's denial. I think it quite improbable that he would have told a police officer at his premises attending to execute a search warrant that he would have to break into his house."

62 The evidence of the respondent was that he had shut the sliding door and that he had then heard a voice at a nearby window. At this time, he claimed not to have appreciated that it was the police who were outside his house. He had walked to the window and demanded to know who the person was. That person said he was "the police". The respondent said he told him, "Well, if you're the police get off my pergola and I'll see you downstairs at the door".

63 His Honour was clearly not acting simply on the basis of inherent probabilities. He accepted the respondent's denial of having told the second appellant: "You'll have to break in won't you?". He went on also to accept the respondent's evidence that he went downstairs and let in the

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first appellant who was standing at the front door and that shortly afterwards he had let in the second appellant. According to him, the two other officers, who were not called to give evidence, were either let in by the first appellant at the rear sliding door or came around to the front door and were admitted.

64 Various inconsistencies in the evidence were pointed to on behalf of the appellants in relation to particular (b) of ground 3; but, in the end, they shed little light upon the matter. Initially, the respondent accepted that the first time he saw the first appellant was after he had picked himself up off the ground. On being pressed, he said he thought he was struggling to right his motor cycle when he first heard the first appellant telling him that he was under arrest. When it was drawn to his attention that he had previously said that the first appellant spoke to him after he had righted the motor cycle, his explanation was that this could have been so, and that he was not going to dispute it because he was physically hurt and he was angry and livid as he was trying to right his motor cycle on his own while the two police officers were just standing by and watching him.

65 Although the learned trial Judge not infrequently spoke in terms of probabilities, it is, in my view, quite clear that his decision was not based solely, or even primarily, upon the probabilities of the case, which were, in any event, capable in this case of working both ways. He expressly referred to the discernment of the credibility of witnesses from their demeanour, and I am satisfied that it was this which played the critical role in determining the outcome of the case. There are a number of instances in which it is clear that, without any reference to probability, his Honour accepted the evidence of the respondent as against that of the appellants and this is true in relation to the events in the carport.

66 Ground 4 of the grounds of appeal is as follows:

"4. The trial Judge erred in law in holding:

(a) (at paragraph 14) that the second defendant's order to the plaintiff to remain on the premises was not a lawful order under the Police Regulations 1979 and failed to give any reasons for so holding.

(b) (at paragraph 24) that the seizure of the photograph and video was unlawful."

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67 The contention in ground 4 regarding the trial Judge's error concerning the legality of the order may be accepted. The respondent, although suspended without pay, remained a member of the Police Force until he was legally discharged. But this error, in my opinion, can have had only a negligible impact upon his Honour's findings of fact. It was not unreasonable for the respondent to point out to the second appellant that he was under suspension and had been so for some months, and that, as he was no longer paid, he did not believe that he had to take orders from him. His evidence was that there was no response from the second appellant, who did not attempt to stop him at that stage. He then proceeded to move his motor cycle forward in order to leave the carport. The significance of this evidence for his Honour was, as he pointed out, that the second appellant was prepared to use the order to prevent the respondent from leaving the premises, there having been no prior requests from either of the appellants for the respondent to remain at the premises until the search had been completed, apart from requests for the respondent to co-operate. As I have indicated, how he was to co-operate was not the subject of any evidence.

68 It may be accepted that the seizure of the photograph and pornographic video was lawful; but there is no indication that this error on the part of the learned trial Judge could have had any impact upon his Honour's other findings.

69 Ground 5 of the grounds of appeal is as follows:

"5. The trial Judge erred in making findings of fact -

(a) upon which there was no evidence;

(b) that were not put to the defendants in cross-examination.


Particulars

(i) The trial Judge found (at paragraph 14) that the second defendant would have been quite irritated by the plaintiff's insistence upon leaving when there was no evidence to that effect nor was it put to either defendant in cross-examination nor was such a finding inherently probable.

(ii) The trial Judge found (at paragraph 24) that the police believed the evidence of the plaintiff's housemate as to the ownership of the seized video, and believed that the

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plaintiff had no prior knowledge of the video, did not know it was in the house and knew nothing of its contents and that the plaintiff could not, on the evidence of the photograph have been said to have been in possession of a smoking implement when there was no evidence of any such beliefs on part of "the police" nor were such matters put to either defendant.

(iii) The trial Judge found (at paragraph 24) that the seizure of the photograph and the video were unlawful as being in excess of the power conferred by the search warrant when such was not put to either defendant nor to counsel for either party during the course of the hearing (thus denying the defendants procedural fairness).

(iv) The trial Judge found that there was ample time for the defendants to question the plaintiff as to his motives because Mr Quigley's direction to the plaintiff to not answer any questions "didn't deter investigation in relation to the alleged pornographic video and the photograph" (at paragraph 28) when there was no evidence to that effect nor was such matters put to either defendant.

(v) The trial Judge found (at paragraph 29) that the first defendant used the occasion of being accidentally struck by the motor cycle to arrest the plaintiff for assault and thereby prevent the plaintiff from leaving when there was no evidence to sustain such a finding, nor was such finding put to the first defendant, and such finding is inherently improbable, given that at the time of the arrest the plaintiff's motor cycle was stalled, damaged on the ground that the plaintiff was calling each defendant "bastards".

(vi) The trial Judge found (at paragraph 31) that each of the defendants would not have taken the matter further but for the intervention of Mr Quigley when there was no evidence to sustain such a finding, such finding was not put to either defendant in cross-examination, nor is the finding inherently probable.

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(vii) The trial Judge found (at paragraph 34) that the defendants treated Mr Quigley's threats seriously and accordingly prosecuted the assault charge against the plaintiff to defend themselves from the plaintiff's claim when there was no evidence to support such a finding, nor was such put to either defendant and such finding is inherently improbable.

(viii) The trial Judge found (at paragraph 53) that each defendant was motivated by seeking to detain the plaintiff until the search was complete and then "having painted themselves in a corner by the battery arrest and false imprisonment, felt they had no option but to continue the prosecution" when there was no evidence to support such a finding nor was such put to either defendant and such finding is inherently improbable."

70 The subject matter of particular (i) has already been discussed under the previous ground. There was evidence from which it could reasonably be inferred that the second appellant would have been irritated by the respondent's insistence on leaving his house. He was trying to prevent the respondent from leaving his house by ordering him not to do so. The respondent, having decided that the respondent should stay, and the respondent having ignored his order, it might have been thought to be highly likely that the second appellant would become irritated, although there had previously been no express requests to the respondent to stay on the premises during the search, in a situation where the respondent had made clear his intention to leave the house for his employment.

71 Paragraph 24 of his Honour's reasons, to which exception was justifiably taken in particular (ii), had no relevance to any of the real issues before the trial Judge. Nor could anything which is referred to in that particular have impacted upon the credibility of either of the appellants, and there was no suggestion by the learned trial Judge that it did so. This matter arose in the course of the cross-examination of the respondent and would seem to have been directed to his character. It does not appear to have been pursued by counsel for the appellants in the course of their giving evidence and there was no need to do so. The respondent having been interviewed about the matter, no charges were laid against him.

72 In relation to particular (iii), it may be accepted that the seizure of the photograph and the pornographic video was lawful. It is not apparent why

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his Honour found it necessary to make the observation that the seizure of these items would have been unlawful. There is, however, no indication that it was other than part of the narrative and nothing to suggest that he took it into account in assessing the credibility of the appellants.

73 Under particular (iv), it was contended for the appellants that there was no evidence that any investigation in relation to the alleged pornographic video and the photograph took place on the day of the incident, or that the respondent was interviewed in relation to those matters on that day. The seizure of the video together with a photograph of the respondent and other people with a "bong", was elicited by counsel for the appellants in the cross-examination of the respondent. The respondent said that he was interviewed "regarding all of these incidents" and that no charges at all were laid against him. It was of no other relevance in the proceedings.

74 It was submitted on behalf of the appellants that there was no evidence that any investigation in relation to the alleged pornographic video and photograph had taken place on the day of the incident, or that the respondent had been interviewed in relation to those matters on that day; but the trial Judge did not suggest that the interview regarding this matter had taken place on that day. The appellants in fact had ample opportunity to ask the respondent why he had deliberately run his motorcycle into the first appellant prior to any discussions with Mr Quigley. His Honour, in his reasons, referred to the respondent being "subsequently" investigated in respect of the video and photograph. The respondent must have been willing at that time to submit to an interview.

75 It is quite clear that the propositions in particulars (v) to (viii) were put, in the case of particular (v), to the first appellant, and in the case of particulars (vi), (vii) and (viii), to both appellants. It was the respondent's case throughout that the first appellant had used the occasion of being accidentally struck by the motor cycle to arrest the respondent, and that the charge had been pursued as a result of the intervention of Mr Quigley. Once the trial Judge had rejected the appellants' version of the events in the carport, and accepted the evidence of the respondent, the inference was open to his Honour that the first appellant had used the fact that the motor cycle had come into contact with him in order to arrest the respondent.

76 Ground 6 of the grounds of appeal provides as follows:

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"6. The trial Judge erred in apparently rejecting (at paragraph 19) the first defendant's evidence that he needed to know whether the plaintiff had left the premises, based upon the noise produced by the motor cycle when there was in fact no conflict between the first defendant's evidence to the effect that he needed to know whether the plaintiff had in fact left, there being no doubt on the evidence of both defendants that they were aware that the plaintiff was proposing to leave, and when such was not put to the first defendant in cross-examination."

77 The submission for the appellants was that, although the first appellant was aware that the motor of the motor cycle had been running for some minutes before he left the house and walked out to the carport, this provided no reason in logic why he would not have left the house to see if the respondent was in fact leaving. Hearing the motor cycle running while he was in the house, the first appellant must have appreciated that the respondent was proposing to carry out his expressed intention of leaving the premises. He knew that, before going out to the carport, the second appellant had made no attempt to stop the respondent from leaving. The first appellant's comment that he needed to know whether the respondent had gone, or whether he was still there, because the action that he needed to take depended upon whether he was going to stay or not, was somewhat lame, having regard to the fact that the noise created by the motor cycle was clearly audible and to the fact that he himself had said in his evidence that he had told the respondent, after the respondent had said to him that he was leaving, "Fair enough if that's what you want to do".

78 This ground appears to me to be of no consequence in the determination of the central issue in the case. His Honour himself indicated that, for the purpose of his decision in the matter, the "difference" between the respondent and the first appellant was "not that material". It could have had no impact upon the outcome of the case. There was certainly no suggestion that the first appellant had gone to the carport to "manufacture" some assault.

79 Ground 7 of the grounds of appeal provides as follows:

"7. The trial Judge erred in -

(a) forming the view (expressed at paragraph 27) that the plaintiff was a more controlled type, probably more controlled than the second defendant, more

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in charge of both himself and the situation than the second defendant when there was no evidence to sustain that finding;

(b) using that view as a basis for accepting the plaintiff's evidence;

(c) using that view as a basis for rejecting the evidence of each defendant."

80 The learned trial Judge formed the "impression" that the plaintiff was "a more controlled type …" than the second appellant. This impression can only have been gained from his seeing and hearing the respondent give his evidence, particularly while he was under a searching cross-examination. It is apparent that, for the reasons which his Honour expressed, he accepted the evidence of the respondent in preference to that of the appellants when there were any conflicts in their evidence. It must be appreciated that, in the relevant paragraph in his judgment, the learned trial Judge was deciding whether the respondent had deliberately accelerated and struck the first appellant with his motor cycle, or whether the second appellant had grabbed the respondent's hand and pulled it off the clutch before pulling the motor cycle over. As his Honour indicated, the only evidence of anger on the part of the respondent was after the second appellant had pulled over the motor cycle, and thereby damaged it.

81 Moreover, his Honour's "impression" did not provide the only basis for preferring the evidence of the respondent to that of the appellants. It is clear from his Honour's reasons in par [27] that he had made a general assessment of the credit and character of each of the parties. Unlike the members of this Court, the learned trial Judge had the great advantage of seeing and hearing the witnesses giving their evidence, and of having the opportunity of observing them while they were being examined and cross-examined. There is nothing which suggests to me that his Honour failed to take advantage of that opportunity.

82 It was suggested for the appellants that the trial Judge had made no observations as to the demeanour of the first appellant. There is, however, no reason not to accept his Honour's statement that his Honour had made an assessment of the credit and character of the parties.

83 Ground 8 provides as follows:

"8. The trial Judge erred in placing any and in fact great weight upon the proposition that "it is truly remarkable"

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(at paragraph 28) that neither defendant asked the plaintiff why he drove his motor cycle into the first defendant when such was of no moment, given that both defendants clearly observed the occurrence of the assault, and further given that each defendant had a limited opportunity within which to ask any such question."

84 The immediate reaction of the first appellant to the respondent's motor cycle coming into contact with him was to arrest the respondent for assault. Initially, in his examination-in-chief, the first appellant said that the respondent had looked at him and then almost instantaneously accelerated forward at him; but, in his cross-examination, he admitted that he could not recall whether the respondent had been wearing sunglasses. He went on to say that he was aware of eye contact with the respondent. He then accepted that the respondent might not have made eye contact with him.

85 As his Honour pointed out, there was no evidence that the respondent had, prior to this incident, been "angry, agitated or out of control" after the police had entered his house. His anger had only emerged after he had been pulled off his motor cycle. The injuries to the first appellant were very minor indeed, as shown in the photographs taken five days after the incident, and the learned trial Judge was entitled to express some surprise that no explanation was sought from the respondent in respect of an incident which eventually became the subject of a charge by way of summons.

86 Ground 9 of the grounds of appeal provides as follows:

"9. The trial Judge erred in finding (at paragraph 31) that there was an inconsistency between the first defendant's evidence that his discussion with Mr Quigley was limited to discussion concerning the validity of the warrant and Mr Quigley's evidence, which was on the whole equivocal as to the identity of the officer with whom he discussed the issue of false arrest."

87 Following the incident in the carport, the appellants and the respondent went back inside the house, from where the respondent telephoned, amongst other persons, his solicitor, Mr Quigley. After his discussion with Mr Quigley, the evidence was that the respondent handed the telephone to the second appellant, who then spoke with Mr Quigley. After their discussion the telephone was passed to the first appellant, who

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claimed that the subject of his conversation revolved only around the search warrant, which is, perhaps, a little surprising having regard to the fact that the respondent had just been arrested and charged with an assault. The evidence of the first appellant was that he did not participate in any other telephone conversations with Mr Quigley on that day.

88 Mr Quigley's evidence was that, shortly after his first telephone conversation with each of the appellants, he spoke to them again and explained to each of them that if they had arrested the respondent, it was an invalid arrest and that the consequence of this was that they were falsely imprisoning him. The second appellant claimed that Mr Quigley, after apparently complaining that the respondent had been arrested while he was attempting to leave the house, said to him: "Right, got you - deprivation of liberty". And that was the end of the conversation between them. He recalled later speaking again to Mr Quigley. In the course of that conversation, Mr Quigley once more stated that there had been a deprivation of liberty in arresting his client just because he was trying to leave his house. The second appellant said that he had explained to Mr Quigley that the respondent had not been arrested because he was trying to leave the house, but because he had assaulted a police officer.

89 The second appellant's evidence was that he had explained to the first appellant the last conversation he had with Mr Quigley and added: "I would imagine that I would have discussed the content of most of the other conversations I had with Mr Quigley as well; but I can't specifically remember doing that with Sgt Weir".

90 The paragraph in his Honour's reasons to which this ground refers relates to the probability that the appellants would not have taken the assault charge any further had it not been for their contact with Mr Quigley. Mr Quigley, having told the second appellant of the consequences of proceeding with the charge of assault, the second appellant conceded it would be highly improbable that he would not have discussed that conversation with the first appellant.

91 There clearly was an inconsistency between the first appellant's evidence as to his discussions with Mr Quigley and Mr Quigley's evidence, and the learned trial Judge was entitled so to find.

92 Ground 10 of the grounds of appeal provides as follows:

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"10. The trial Judge erred in failing to find and act upon the inconsistencies between the plaintiff's evidence and Mr Quigley's evidence."

93 The inconsistency was said to be between the evidence of the respondent that he had only one telephone conversation with Mr Quigley while at his house, whereas Mr Quigley's evidence was that he had two such conversations with each of the respondent and the appellants. The submission made on behalf of the appellants was that, if inconsistency with Mr Quigley's evidence was the basis for rejecting the first appellant's evidence, it was "odd" that his Honour had not acted upon the quite direct and obvious inconsistency between Mr Quigley's evidence and the respondent's evidence.

94 There was undoubtedly some confusion on the part of the various witnesses at the time of the trial regarding the number of telephone calls which were made to or by Mr Quigley on 15 January 1997. The number of calls was in itself, however, not material. The importance of the telephone calls related to the persons to whom Mr Quigley spoke and the contents of their conversations.

95 Ground 11 of the grounds of appeal provides as follows:

"11. The trial Judge erred in making findings of fact that were inherently improbable.

Particulars
(a) The appellant repeats and relies upon the matters identified in the preceding grounds of appeal.

(b) The trial Judge apparently accepted without question (at paragraph 4) the plaintiff's improbable evidence that he was not awoken by the attempts of the search party to gain entry for more than 15 minutes or so after the search party arrived and that when he was awoken he assumed he was being burgled and covertly attempted to close the upstairs sliding door as part of a plan to catch the burglars."

96 Particular (a) adds nothing to the preceding grounds of appeal.
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97 The paragraph in his Honour's reasons for judgment to which particular (b) appears to relate is par [9], which reads as follows:

"At this juncture the first defendant asked the plaintiff why he hadn't opened the door and the plaintiff explained to him that he hadn't heard him, that he had taken sleeping tablets during the early hours of the morning, an explanation which the first defendant appeared then to accept. Certainly no evidence was given of any disputation of it at the time."

98 Although it appears that, on the basis of there having been no challenge to it, apart from a suggestion put to the respondent that the police may have been knocking on his door for 15 minutes, which he denied, the learned trial Judge accepted this evidence of the respondent. It was merely part of the general background leading up to the critical events which took place in the carport. The trial Judge was entitled to accept the respondent's evidence. It is no more improbable than the evidence that the police had been knocking on the door for 15 minutes without taking any further action.

99 Ground 12 of the grounds of appeal provides as follows:

"12. The trial Judge erred in failing to find that on the evidence as a whole the evidence of each of the defendants was consistent, plausible and inherently probable and that the plaintiff's evidence was inconsistent with the objectively established facts and inherently improbable.

Particulars

T he appellants rely upon the matters alleged in the preceding grounds of appeal."

100 Notwithstanding the very detailed submissions put to us on behalf of the appellants, I am not persuaded that this Court should interfere with the findings made by his Honour regarding the critical events which took place in the carport. There were, as has been acknowledged, two errors in law; but they related to collateral matters. It is also accepted that his Honour made some unnecessary observations, and on occasions, some unnecessarily extravagant comments; but they were not, in my view, such as to call into question the final result. I would dismiss the appellants' appeal against liability. In arriving at this conclusion, I should add that I have had regard to the totality of the complaints made in respect of

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his Honour's reasons and have not simply considered each complaint in isolation.

101 It is unnecessary, in these circumstances, to consider the respondent's notice of contention, and I now turn to the issue of damages, which is raised in the appellants' final ground of appeal and in the respondent's cross-appeal.

102 Ground 13 provides as follows:

"13. The trial Judge erred in assessing damages in the sum of $5000 for battery, $10,000 for false imprisonment and $30,000 for malicious prosecution, each such award sum being, in the circumstances, excessive and further erred in awarding aggravated and exemplary damages."

103 On the hearing of this appeal, very little argument was directed to this ground and, indeed, only a relatively limited amount of evidence relating to damages was given by the respondent. The evidence was to the effect that his former colleagues in the police service had become aware of his arrest three days after the incident, when an article appeared in The West Australian newspaper clearly identifying him. The headline read, "Barred Officer Charged". Up until this time, the respondent said that he had received tremendous support from the colleagues, with whom he had worked for the previous 14 years. With the appearance of the article in the newspaper, however, he claimed that "everything just ceased". Once other officers had become aware that internal investigators were involved, they were reluctant to speak to him on the telephone for fear that it might be tapped, and they were concerned about being seen to be associating with him. His friends stopped calling by. When he did venture out from his house, even his next door neighbours had read the newspaper report and spoke to him about the matter. He claimed it was the most embarrassing and humiliating time of his life, and one of the lowest points of his life, as he had no emotional support from anyone. It was approximately 10 months from the date of his arrest until his trial, which resulted in his acquittal. He knew that if he were to be convicted, it would be the end of his career.

104 The learned trial Judge found that the second appellant deliberately and without lawful excuse pulled the respondent's arm from his motor cycle and pulled the motor cycle to the ground in order to prevent his departure from his residence. He said:

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"Absent any physical injury having been caused to the plaintiff and taking all the circumstances of the battery into account I think an appropriate award of damages under this head is $5000 and I find for the plaintiff in that sum, against the second defendant."

105 In relation to the tort of false imprisonment, his Honour said that the respondent was arrested and detained in the knowledge of each of the appellants that the respondent had committed no offence for which he was liable to arrest, for an improper motive, namely, to prevent his departure from the premises. He was of the view that the damages should be substantial. He awarded the respondent the sum of $10,000, to which he added the further sum of $5,000 constituting aggravated and exemplary damages. The false imprisonment lasted, his Honour held, until he was released from custody at the office of the Internal Affairs Unit in Belmont, as his Honour expressed it, something a bit over an hour after the arrest, perhaps an hour and a quarter, perhaps an hour and a half, but no longer. The longer period seemed to be the more likely period spent by the respondent in custody.

106 As to the award of damages for malicious prosecution, his Honour found that there had been significant damage to his reputation:

"A police officer, albeit a police officer under suspension, was charged with assault on a serving police officer in the execution of his duty which caused his work colleagues to shun him. There would have been a number of reasons for this. The esprit de corps of a body such as a police force would suggest that where a member is suspended for, and stands trial in respect of, accusations made by someone outside the police force, the accused policeman is given the benefit of the doubt by his colleagues or, put another way, his colleagues would be more than prepared to regard him as innocent until proven guilty. Where a charge, however, is laid for assaulting a police officer, and a member of the Internal Affairs Unit at the, as the plaintiff found, and I accept, former friends and colleagues anxious for their own positions would be fearful of extending the hand of friendship by associating with the plaintiff whilst under investigation by the Internal Affairs Unit, to which both of these defendants belong."

107 He added that the respondent's arrest was prominently reported in The West Australian newspaper. The damage and distress involved, in his

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opinion, warranted a high award of damages. He awarded the sum of $30,000.

108 I turn first to consider the award of damages for battery. In the late Professor John Fleming's work, the Law of Torts, 9th ed (1998) at 29 - 30, the learned author described the tort as being committed by intentionally bringing about a harmful or offensive contact with another person's body. He continued:

"The action, therefore, serves the dual purpose of affording protection to the individual not only against bodily harm but also against any interference with his person which is offensive to a reasonable sense of honour and dignity. … The element of personal indignity is given additional recognition by awarding aggravated or even exemplary damages to compensate for any outrage to the plaintiff's feelings."

109 As is noted in McGregor on Damages, 16th edn (1997) par 1844:

"Insofar as an assault and battery results in physical injury to the plaintiff, the damages will be calculated as in any other action for personal injury. However, beyond this, the tort of assault affords protection from the insult which may arise from interference with the person. Thus, a further important head of damage is the injury to feelings, ie the indignity, mental suffering, disgrace and humiliation that may be caused. Damages may thus be recovered by a plaintiff for an assault, with or without a technical battery, which has done him no physical injury at all. While damages for the injury to feelings may be given without their being classified as aggravated damages, it is usual to find, in the very few existing authorities, that the court does make its award one of aggravated damages."

110 Unfortunately, the learned trial Judge did not identify the factors which he had taken into account in assessing the damages for the battery at $5,000. The only evidence from the respondent regarding damage which was inflicted as a result of the battery was that he had hit the concrete carport floor when his motor cycle was pulled over and his statement in cross-examination that he was "hurt - physically hurt" and that he was angry and livid because the appellants were just standing and watching him.

111 The learned trial Judge was in a much better position than this Court to assess the damages, having seen and heard the protagonists. The award

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of $5,000 was, in my opinion, high in all the circumstances but of that sum a substantial proportion could properly be regarded as constituting aggravated damages, being an award given for conduct which shocked the plaintiff. In my opinion the award should not be interfered with.

112 The tort of false imprisonment was committed immediately following the battery. As Professor Fleming, op cit at 33 wrote:

"The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either actively causing his confinement or preventing him from exercising his privilege of leaving the place in which he is."

113 At 35 the learned author observed that: "False imprisonment trenches not only on a person's liberty but also on his dignity and reputation, and this is reflected in the calculation of damages".

114 As to damages for this tort, McGregor on Damages, op cit at par 1850, states:

"The details of how the damages are worked out in false imprisonment are few: generally it is not a pecuniary loss but a loss of dignity and the like, and is left much to the jury's or judge's discretion. The principal heads of damage would appear to be the injury to the liberty, ie the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, ie the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status. This will all be included in the general damages which are usually awarded in these cases: no breakdown appears in the cases."

115 As Clarke JA observed in Spautz v Butterworth (1996) 41 NSWLR 1, at 15:

"A difficulty in the assessment of damages arises because the distinction between ordinary and aggravated compensatory damages may become blurred in defamation and false imprisonment cases."

116 His Honour referred to the speech of Lord Diplock in Cassell & Co Ltd v Broome (1972) AC 1027, at 1124 - 1126, where his Lordship said:

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"The three heads under which damages are recoverable for those torts for which damages are 'at large' are classified under three heads. (1) Compensation for the harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of this compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment or malicious prosecution, upon injury to reputation, as in false imprisonment or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the even tenor of life, as in may torts, including intimidation. (2) Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or motive for which the defendant did it. This Lord Devlin calls 'aggravated damages'. (3) Punishment of the defendant for his anti-social behaviour to the plaintiff. This Lord Devlin calls 'exemplary damages' …

The tort of defamation, to which Lord Devlin made only a passing reference in Rooks v Barnard [1964] AC 1129, has special characteristics which may make it difficult to allocate compensatory damages between head (1) and head (2). The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages under head (1) itself even in cases in which there are no grounds for 'aggravated damages' under head (2). Again the harm done by the publication, for which damages are recoverable under head (1) does not come to an end when publication is made. As Lord Atkin said in Ley v Hamilton 153 LT 384 at 386: 'It is impossible to track the scandal to know what quarters the poison may reach'. So long as its withdrawal is not communicated to all those whom it has reached it may continue to spread. I venture to think that this is the rationale of the undoubted rule that persistence by the defendant in a plea of justification or a repetition of the original libel by him at the

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trial can increase the damages. By doing so he prolongs the period in which the damage from the original publication continues to spread and by giving to it further publicity at the trial as in Ley v Hamilton, extends the quarters that the poison reaches. The defendant's conduct between the date of publication and the conclusion of the trial may thus increase the damages under head (1). In this sense it may be said to 'aggravate' the damages recoverable as, conversely, the publication of an apology may 'mitigate' them. But this is not 'aggravated damages' in the sense that that expression was used by Lord Devlin in head (2). On the other hand the defendant's conduct after the publication may also afford cogent evidence of his malice in the original publication of the libel and thus evidence upon which 'aggravated damages' may be awarded under head (2) in addition to damages under head (1). But although considerations such as these may blur the boundary between compensatory damages under head (1) and compensatory damages under head (2) in the case of defamation, they do not affect the clear distinction between the concept of compensatory damages and the concept of exemplary damages under head (3)."

117 Clarke JA also quoted a passage from McGregor on Damages in relation to aggravated damages for false imprisonment. At par 1854 of the current edition, the learned author states:

"The manner in which the false imprisonment is effected may lead to aggravation or mitigation of the damage, and hence of the damages. The authorities illustrate in particular the general principle stated by Lawrence LJ in Walter v All Tools (1944) 61 TLR 39 at 40 that

'any evidence which tends to aggravate or mitigate the damage to a man's reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man's liberty; it also affects his reputation. The damage continues until it is caused to cease by an avowal that the imprisonment was false.'

That case, and the earlier one in Warwick v Foulkes (1844) 12 M&W 507; 152 ER 1298, as interpreted therein, establish that, where the false imprisonment has been brought about by the

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defendant preferring a charge against the plaintiff, any evidence tending to show that the defendant is persevering in the charge is evidence which may be given for the purpose of aggravating the damages. By implication, they establish the converse proposition that the defendant is entitled to give evidence in mitigation of damages tending to show that he has withdrawn the charge or has apologised for having made it."

See also Coyne v Citizen Finance Ltd (1991) 172 CLR 211, per Toohey J at 237 - 238.

118 Although the time spent by the respondent in custody was relatively brief, a substantial award was called for on the basis of his Honour's findings. In my opinion the award of $15,000 should not be interfered with.

119 As to malicious criminal prosecutions, McGregor on Damages, op cit, at par 1862, states:

"The principal head of damage here is to the fair name of the plaintiff, the injury to his reputation. In addition it would seem that he will recover for the injury to his feelings, ie for the indignity, humiliation and disgrace caused him by the fact of the charge being preferred against him. No breakdown, however, appears in the cases. Holt CJ's second head [in Savile v Roberts (1699) 1 Ld Raym 374 at 378] was the damage by being put in danger of losing one's life limb or liberty. It therefore seems that the plaintiff can recover in respect of the risk of conviction: this is basically injury to feelings. If there has been arrest, and imprisonment up to the hearing of the cause, damages in respect thereof should also be included, and will be the same as would be recoverable in an action for false imprisonment."

See also Fleming, op cit at 673, 686 - 687 and Professor F A Trindade, The Modern Tort of False Imprisonment in Torts in the Nineties, ed Nicholas J Mullany (1997) at 250 - 252.

120 In my opinion, although the figure of $30,000 is relatively high, the circumstances found by the learned trial Judge were such that, in my opinion, the award should stand. This was a case in which, as I have indicated, the learned trial Judge was in a far better position than this Court to assess damages. His Honour had a wide discretion in this area and, in the end, I would not be prepared either to increase or to reduce the amounts which his Honour awarded.
(Page 50)

121 In the circumstances, I would dismiss both the appeal and the cross-appeal.
(Page 51)

122 WALLWORK J: I agree with the reasons for judgment of Kennedy J and to the conclusions which his Honour has reached. There is nothing I wish to add.

123 MURRAY J: I agree that, for the reasons given by Kennedy J, the appeal and cross-appeal should both be dismissed.