White v State of South Australia - [2010] SASC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
WHITE & ORS v STATE OF SOUTH AUSTRALIA
[2010] SASC 95
Judgment of The Honourable Justice Anderson
9 April 2010
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - TRESPASS TO LAND
Plaintiffs entered onto private property being leased land - defendant claims that plaintiffs trespassed onto the leased land - police attempted to remove plaintiffs for trespassing - whether police authorised to remove plaintiffs - cause of action in trespass requires knowledge on the part of the trespasser that they are trespassing, a request to the trespasser to leave the land and a refusal by the trespasser to leave - not established that any plaintiff arrested for trespass entered in the knowledge they were trespassing - whether police conduct constituted a request to leave - held police did not or did not properly make requests to the plaintiffs to leave and therefore plaintiffs did not trespass.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - INSULTING, ABUSIVE, UNSEEMLY OR THREATENING LANGUAGE AND BEHAVIOUR - CAUSING, INTENT TO PROVOKE, A BREACH OF THE PEACE
Where plaintiffs were detained for breach of the peace - whether common law powers to detain for breach of the peace were properly exercised - held none of the plaintiffs found to have committed any breach of the peace - not established that there was any reasonable apprehension of any breach - held plaintiffs detained were wrongfully detained.

TORTS - TRESPASS - TRESPASS TO THE PERSON - WHAT CONSTITUTES AND DEFENCES THERETO - ASSAULT
Where plaintiffs arrested or detained after force used to apprehend the plaintiffs - police use of batons, OC spray and physical force generally - cause of action requires plaintiff to be in fear or apprehension of imminent battery - all plaintiffs were in fear or apprehension of imminent battery - held police assaulted all plaintiffs and defendant vicariously liable.

POLICE - ACTIONS FOR WRONGFUL ARREST, TRESPASS AND OTHER WRONGS - GENERALLY
Where plaintiffs were arrested for trespass - trespass not made out on the facts - held that where arrested, the plaintiffs were wrongfully arrested.

TORTS - MALICIOUS PROCEDURE AND FALSE IMPRISONMENT - FALSE IMPRISONMENT
Where plaintiffs were imprisoned after arrest for trespass or detained for breach of the peace - eight of the ten plaintiffs were physically deprived of liberty for approximately seven hours - one plaintiff was deprived of liberty for five hours - defendant's allegations of trespass or breach of the peace were not made out on the facts - plaintiffs were unlawfully arrested or unlawfully detained - held plaintiffs were falsely imprisoned, and defendant vicariously liable.

DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES
Plaintiffs claimed aggravated damages for the treatment they received on 9 May 2000 in conjunction with their false imprisonment, wrongful arrest, unlawful detention and for being assaulted by police - whether treatment humiliated and insulted the plaintiffs - plaintiffs claimed exemplary damages for the unreasonable and insulting conduct of the defendant on and after 9 May 2000 - comments made by government ministers - whether defendant's conduct constituted a contumelious disregard for the plaintiffs' rights - held that plaintiffs were humiliated and insulted, and that defendant's conduct did constitute a contumelious disregard for the plaintiffs' rights - all plaintiffs awarded aggravated damages - nine of the ten plaintiffs awarded exemplary damages.

TORTS - TRESPASS - TRESPASS TO GOODS
Plaintiffs claimed special damages for loss pertaining to items of personal property - some items of personal property of the plaintiffs were damaged during the course of their arrest or detention and some items were confiscated by police and never recovered - held plaintiffs to be awarded special damages where claims made out.
Supreme Court Act 1935 (SA) s 30C(3); Summary Offences Act 1953 (SA) s 17A(1), referred to.
Macpherson v Beath (1975) 12 SASR 174; Rixon v Star City Pty Ltd (formerly Sydney Harbour Casino Pty Ltd) [2002] NSWCA 265; Walker v Hamm [2008] VSC 596; Barker v R (1983) 153 CLR 338; Semple v Mant; Cargill v Semple (1985) 39 SASR 282; Margarula v Rose (1999) 149 FLR 444; R v Conley (1982) 30 SASR 226; Police v Slobodian [2008] SASC 79; 254 LSJS 117; R v Howell (1981) 3 All ER 383; Brander v Lovegrove (No 2) 103 LSJS 304; Jordan v Gibbon (1863) 8 LT 391; Forbutt v Blake (1981) 51 FLR 465; R (on the application of Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55; Murray v Ministry of Defence [1988] 1 WLR 692; Maine v Townsend (1883) 4 LR (NSW); R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58; Bird v Jones (1845) 7 QB 742; Myer Stores Ltd v Soo [1991] 2 VR 597; Dallison v Caffery [1965] 1 QB 348; Lamb v Cotogno (1987) 164 CLR 1; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Cassell & Co Ltd v Broome [1972] AC 1027; State of NSW v Delly (2007) 70 NSWLR 125; McDnald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 (NSWCA); Whitefield v De Lauret & Co Ltd (1920) 29 CLR 71; NSW v Ibbett (2006) 229 CLR 638; Andary v Burford (1994) Aust Torts Reports 81-302; Rookes v Barnard [1964] AC 1129 (HL); Johnstone v Stewart [1968] SASR 142; Walker v Hamm (No 2) [2009] VSC 290; Briginshaw v Briginshaw (1938) 60 CLR 336, applied.

WHITE & ORS v STATE OF SOUTH AUSTRALIA
[2010] SASC 95
Civil
1.    Introduction
Issues
2.    Summary of reasons
3.    Days preceding 9 May 2000
4.    The events of 9 May 2000
(i)       Kaesler/Gornall incident
(ii)      Driving into the protesters
(iii)    The rock throwing incident
(iv)     Briefing
(v)      The Star Force involvement
(vi)     Arrests
(vii)     Events at the main gate
5.    Detention of individual plaintiffs
(i)       Lucinda White
(ii)      Matthew Bonner
(iii)    Isabella Brown
(iv)     Stephanie Conway
(v)      Marcel de Bie
(vi)     Ian Foster
(vii)     Samuel Hoffmann
(viii)    Jamie Holland
(ix)     Emily Johnston
(x)      Helen Gowans
6.    Evidence of non-parties
(i)       For the plaintiffs
(ii)      For the defendant
7.    Police witnesses generally
8.    Shipping container and welding
9.    Release
10.   Key findings of fact related to Tuesday 9 May 2000
11.   The law
(i)       Assault
(ii)      Trespass
(iii)    Breach of the peace
(iv)     False imprisonment
12.   Damages
(i)       General damages
(ii)      Aggravated damages
(iii)    Exemplary damages
13.   Factors relevant to exemplary damages
14.   Assessment for individual plaintiffs
(i)       Lucinda White
(ii)      Matthew Bonner
(iii)    Isabella Brown
(iv)     Stephanie Conway
(v)      Marcel de Bie
(vi)     Ian Foster
(vii)     Samuel Hoffmann
(viii)    Jamie Holland
(ix)     Emily Johnston
(x)      Helen Gowans
14.   Judgment details
ANDERSON J.
1.     Introduction

There are ten plaintiffs in this matter who sue the State of South Australia for damages as a result of events which occurred at a protest in May 2000. The causes of action are principally for assault, false imprisonment and trespass to goods.
The original defendants were the State of South Australia, Superintendent Kym Boxall, Sergeant David Miller, Sergeant Les Riekie, Andrew Thiele, Kevin Brown, Richard Miller, Ben Spencer, Kym Husdell, Paul Mitchell, Paul Clonan, Philip Emmett, Gavin Stone, Troy Kaesler, Dale Oates, Neil Wilson, Terry Paynter, Martin Gornall, Brendon Irrgang, Joseph McDonald, Sean Bell, Peter Thomas, Allan Dawson, Andrew Mogg, Tina-Marie Hewkin, and Anna Thomas. The State of South Australia, by letter dated 18 May 2009 accepted vicarious liability for each of the other defendants and the other actions were discontinued. The plaintiffs were protesters and other individuals.
A few days before Tuesday 9 May 2000, a group of protesters, including the plaintiffs, assembled at the entrance gate, or main gate, to the Beverley uranium mine which is situated just north of the Flinders Ranges in the far north of South Australia. The mine was run by Heathgate Resources Pty Ltd (“Heathgate”).
Heathgate held and continues to hold a 21-year mining lease from the South Australian government, commencing 16 April 1999. Heathgate also has agreements with the Aboriginal people who are the traditional owners of the land. They are the Adnyamathanha people. Three native title agreements were made between Adnyamathanha elders as registered native title claimants and Heathgate. The agreements were made on behalf of all the Adnyamathanha people. A similar access agreement between registered native title claimant for the Kuyani people and Heathgate was made on 16 April 1998.
The three agreements were made on 27 February 1998, 22 April 1998 and 27 July 1998 (Agreements 1, 2, and 3). Relevant clauses are:
C1 3.7“except where Heathgate is obliged to restrict access to the Site pursuant to its obligations in respect of relevant laws relating to health and safety, Heathgate shall not otherwise unreasonably restrict access by the Native Title Claimants and/or Adnyamathanha people to the Site (numbered cl 3.8 in Agreement 2)
Cl 4.1“… Heathgate, its servants, agents and contractors shall have quiet enjoyment of the site and shall be entitled to undertake mining operations on the Site unhindered”
The agreements were to be operational for the term of the mining lease granted and any terms of renewal.
The lease is situated on Wooltana Station, about 40 kilometres north-east of Balcanoona National Park. It covers about 25 square kilometres. Balcanoona is about 100 kilometres east of Leigh Creek and about 30 kilometres south of Arkaroola Village. Road access to the mine is by way of dirt roads.
At the time of the protest, the mine site was under construction. On the site there was a processing plant, rig, storage areas, trenches, and a retention pond. Various buildings had been constructed to support the mining operation. The entire site was surrounded by a barbed wire fence. A core area of the mine was fenced by a 6 foot high security fence. This area was referred to as the FLT site.
The uranium mining at Beverley involves an in situ leaching process. This is opposed to traditional mining by closed or open-cut methods. It was explained by Mr David Brunt of Heathgate. He said that instead of sinking shafts and mining from underground or removing overburden in an open-cut capacity, it involves drilling patterns of wells where groundwater has reagents added to it. The groundwater is then circulated between the wells and the aquifer which contains the uranium deposit and uranium is recovered at the surface so it carries a number of environmental and health and safety positives with it, as compared with conventional mining.
By 9 May 2000 the assembled protesters at the main gate of the mine numbered about 150. The protesters were quite a disparate group. Most of them were opposed to uranium mining generally, some of them to the particular leaching process that was used and others were concerned in relation to the intrusion of the mining venture onto Aboriginal land. The traditional owners of the land and supporters of the traditional owners were represented, and finally there were some protesters who had just come along for the ride.
The May protest had been planned for sometime. Some public meetings had been held at earlier points of time and flyers had been distributed advertising the fact that there was to be a protest at Beverley. The plaintiff Lucinda White was involved in discussions with the Aboriginal elders and organising the flyers and arranging the meetings.
The protesters were aware that there was likely to be media coverage of this event and it was their way of attracting public attention to the fact of the uranium mining at Beverley. There were two representatives of Channel Seven present on 9 May 2000, one, the plaintiff Mr Jamie Holland, who was a cameraman and he was accompanied by Mr Peter Caldicott, a reporter.
At the same time, the South Australian Police Department had assembled a squad under the command of Superintendent Kym Boxall of approximately 24 police officers. This squad was assembled following police intelligence that a large group of protesters was heading towards the mine site. The police kept an active intelligence on the actions of the protesters in the weeks and days leading up to the protest. Police officers had been summoned from centres in the north of the State, including Port Augusta, Port Pirie and surrounding areas, in the days preceding 7 and 8 May in case there was any was trouble. Five Star Force or Star Division officers were then summoned to the site on Sunday 7 May by Superintendent Boxall to assist the uniformed police in relation to the control of the protesters. They arrived late on the Sunday evening.
The protesters had set up a camp site outside the main gate to the mine. The police had set up a control point just inside the main gate. In the two or three days prior to 9 May 2000 several incidents between the police and protesters had occurred but generally the police and the protesters understood each other and appeared to relate well to each others requirements. Despite that, in the days prior to 9 May, some protesters went onto the mine site and were detained, held for sometime and then released outside the main gate.
As mentioned earlier, the police had envisaged a protest sometime before May, and in fact prepared a detailed report known as Operation Beverley (SAPOL, 1999) which is part of exhibit P1. This document was well-thought through and detailed in the approach advocated in the event that there was a protest at the mine site. It was prepared in 1998 and finalised and approved by a Chief Superintendent on 21 June 1999. It covered particularly the attitude that the police should adopt in the event of a protest, and laid out procedures to be followed both in relation to arrest and detention, should that become necessary. It concentrated on the way in which police powers should be used in relation to the apprehension and caution of protesters as preferred to their arrest and detention. It canvassed the way in which breach of the peace powers could be utilised.
On 9 May 2000, protesters crossed over a fence onto the mine site, and the police attempted to remove them. There were several incidents which I will describe later in these reasons. These incidents include one general scuffle between police and a group of about 30 protesters, some arrests of protesters by police officers and some rock throwing by a few protesters. The rocks actually caused damage to one police vehicle, and were thrown at and near to police officers nearby. A couple of police officers were struck by rocks.
It is alleged by the protesters that in the course of the police action that day they were beaten and sprayed with Oleoresin capsicum spray, or OC spray, even though they were in the course of exiting the mine site at that time. The State of South Australia alleges that malicious damage to mine equipment caused by the protesters in the days preceding had put them “on notice”. The police were concerned on 9 May 2000 that further damage might be caused. In the course of confrontations earlier described between the protesters and the police, rocks were thrown at the police who then took steps to protect themselves.
On 9 May 2000 approximately 30 protesters were detained. Some were detained for trespass or breach of the peace, some were not given a reason. They were taken to a central area in the administration section of the mine site by police cars and placed in a makeshift cell which was in fact a disused shipping container. The dimensions of the container were about 6 metres long, 2.3 metres wide and 2.4 metres high. Whilst the protesters were inside the shipping container, a wire cage was welded to the outside of the container. Most of the protesters apprehended were held in the container for about three hours and then a further similar amount of time in the wire cage.
Later that same day the protesters who were detained were taken to a separate location and released. Most of the plaintiffs had spent approximately seven hours in custody. The plaintiffs claim they were falsely imprisoned throughout that time.
At the trial Mr Walters SC, Mr Mueller and Mr Collett represented the plaintiffs and Miss Nelson QC and Mr Goodall represented the defendant.
Issues
Generally, the plaintiffs are claiming damages against the State for assault and for false imprisonment, for the injuries which they suffered, both physical and mental, as a result of the police action. They allege that they sustained these injuries as a result of unreasonable force used by the police, including the use of batons and capsicum spray, verbal insults, and humiliation as a result of their false imprisonment. Some of the plaintiffs were arrested, and some were only detained.
The issues to be decided are:
(a)     Did any of the plaintiffs commit the offence of trespass when they entered the mine lease, or while they were on the land?
(b)    Were the detentions for breach of the peace lawful?
(c)     Were the plaintiffs or any of them falsely imprisoned?
(d)    Were the plaintiffs or any of them assaulted?
(e)     Are the plaintiffs entitled to damages? If so, what is the measure of those damages?
2.     Summary of reasons
For the reasons which follow, I have decided:
(a)The plaintiffs who were arrested for trespass did not commit the offence of trespass when they entered the mine lease, nor at any time while they were on the land. Therefore the arrests for trespass were not lawful.
(b)In all other cases the detention of the plaintiffs for breach of the peace was unlawful.
(c)Each of the plaintiffs except Helen Gowans was falsely imprisoned.
(d)Each of the plaintiffs was assaulted.
(e)The plaintiffs are all entitled to damages, which I later assess.
There is no question that the right to protest in a sensible, organised and orderly fashion is part of the Australian culture and way of life. One would generally have expected the police to be accommodating in their attitude to the protesters and prepared to bend the rules, provided that there was no real harm to life or property. Operation Beverley recognised the right to protest and required the police to “display an attitude of tolerance and good humour consistent with maintaining the peace and recognising the democratic right of citizens to protest without interfering with the lawful activities of others”.
Wherever the truth of the matter lies, the whole incident or series of incidents observed on various video exhibits from footage taken at the time show that at times there was a most unpleasant and volatile situation. I will find that some police did not act with tolerance and good humour. Some used unreasonable force and did not act in a conciliatory fashion.
During the trial almost every witness was shown video footage of the events of 9 May 2000, both in examination in chief and during cross-examination. Some of the video footage demonstrated, as you would expect with such a long delay, that witnesses’ recollections were not always accurate. I was able to form a picture of how these events developed from about 9.00 am on 9 May 2000 from watching the video footage many times during the trial.
Whilst the video footage cannot be a substitute for direct evidence from witnesses because it is not continuous, it is nevertheless both supportive, and in some cases destructive, of the evidence given by the witnesses. I have been careful to remind myself that it was a dynamic situation which developed on 9 May. It was very fluid and ever-changing and therefore I am cautious when considering what witnesses have told me. It may be unfair to penalise a witness whose account of events might not necessarily have been captured by the cameras that were operating at the time. I have certainly called in aid the footage of events in my attempts to resolve differences between the oral testimony of the witnesses.

Because the events occurred almost ten years prior to the witnesses giving evidence in court, there are many difficulties associated with assessing the evidence. The motives of those who gave evidence, which naturally tended to be self-serving and to place a gloss on the events as they occurred, have been examined carefully. However, with a few exceptions, I thought the witnesses each did their best to give an honest recollection of the events they recalled from May 2000.
Having said that, there are many discrepancies in the overall evidence. Some witnesses had clearly refreshed their memories either from statements which they had made many years before, or by looking at video footage, prior to coming into court. Some clearly could not remember the events in any detail without the ability to refresh their memory from either their statements or the video footage. I thought that some of the plaintiffs and some police officers who gave evidence tended to embellish their respective accounts of the incidents to suit their particular cause. This is natural after such a long time because memories have faded and events have now become more focused on the plaintiffs’ claim for damages. I do not find, with a few notable exceptions, that there was any conscious attempt to mislead the court. I will deal with some witnesses who in my opinion did not give a full and frank account of their involvement at the time later in these reasons. In general, I thought the demeanour of the witnesses was also satisfactory, again with a few notable exceptions.
Of the plaintiffs, I formed the view that all of them, with the exception of the cameraman from Channel Seven (Mr Holland) and the young Aboriginal girl (Helen Gowans) were there because they shared genuine concerns about the mining of uranium and the possible effect on health and various other risks associated with the substance. Mr Holland was there in the course of his work with Channel Seven and Helen Gowans was with her grandfather Mr Ron Coulthard, who was an Adnyamathanha elder, and she had a right to be on the land.
I have found that some of the force used by the police, either by use of capsicum spray or by the use of batons or both, was unwarranted. Some of those arrested, some being plaintiffs, were mere passive observers, several of whom were taking video footage. This group included Mr Holland who was arrested for trespass. Unfortunately no record was kept of the arrests or who the arresting officers were in relation to the individual protesters, and so in respect of a number of arrests there is no police officer accountable. In some cases therefore the plaintiffs’ version of events is unchallenged.
My findings indicate that the chain of command appears to have been transferred from Superintendent Boxall to Sergeant Les Riekie of the Star Division once the Star Division became part of the action. Some uniformed officers, four or five of them, were handed large cans of capsicum spray by the Star Division officers. In the events which followed I have found that the use of capsicum spray by some of the uniformed officers was fairly indiscriminate. Likewise I have found that batons were used indiscriminately in an attempt to move the protesters along.
After their initial detention in police cage vehicles, essentially it seems for alleged breaches of the peace, the protesters were imprisoned in a disused shipping container for periods up to three hours. Whilst between 24 and 30 protesters were inside the shipping container it was decided that a wire mesh cage would be welded and annexed to the container. That welding took place while the protesters were within the container. I have found it to be a potentially dangerous and unnecessary decision in the circumstances. Most were held in that cage for a further three hours or thereabouts. Overall the protesters were deprived of their liberty for periods of up to seven or eight hours from the time of their initial detention on the land. This included sometime in the rear of police cage vehicles, time in the container, time in the cage annexed to the container and then in transit to their release destination at Balcanoona National Park.
I have found that Superintendent Boxall appeared to have no definite plan regarding how he would deal with those detained. He made a decision more or less on the spur of the moment on 9 May to use the disused shipping container, despite his having rejected it as totally unsatisfactory on the previous day. The police officers on the day, despite the clear statement of objectives and procedures to be followed in Operation Beverley, did not act in accordance with the stated intentions of Operation Beverley. This particularly relates to the procedures to be adopted in the event that protesters entered the mine site. I have concluded that many protesters, including nine of the ten plaintiffs in this matter, were unlawfully detained, and that the police misused their common law powers to detain for breach of the peace. There was a lack of understanding amongst most police officers as to the difference between arrest for trespass and detention for breach of the peace. Most thought there was no real difference.
It is my view that the use of the shipping container as a holding cell was ill conceived and resulted in fundamental breaches of human rights. I find that it was not necessary in any event for the protesters to be held in custody, with possibly two or three exceptions, one of whom was the plaintiff Isabella Brown.
I have held the State of South Australia liable for damages as a result of the arrests and detention of the plaintiffs. I have not acceded to the plaintiffs’ requests to compensate them in the amounts which were nominated by Mr Walters in his closing address. I have found that there was an area of exaggeration in the plaintiffs’ claims, even though I do not doubt that they were traumatised by some of the actions of the police force. I find that generally the effects of the traumatisation passed reasonably quickly in most cases. I find that some of the accounts given by the plaintiffs as to alleged long term effects are exaggerated, especially where there is no medical evidence in support. I find, however, that all were traumatised by the detention and treatment whilst held in custody.
One difficulty encountered as the case for the plaintiffs proceeded was that it seemed to me that most of the plaintiffs were particularly interested in being part of some type of inquiry or quasi royal commission into the events that occurred on 9 May 2000. This is understandable in view of their involvement but it is not necessarily the best atmosphere in which to conduct a claim for damages in a civil court.
I have found that the plaintiffs are entitled to general damages for their arrest and detention and I have also found in each case that they are entitled to aggravated damages. I have also awarded exemplary damages to all plaintiffs, except Helen Gowans. The awards for exemplary damages are not high because of the award of aggravated damages and because there is an overlap of relevant factors in those two heads of damage.
The plaintiffs had each claimed substantial amounts for exemplary damages. The award for exemplary damages in each case covers the fact of and associated problems with the shipping container being used, the welding which took place and the remarks of two Ministers of the State regarding the motives and attitudes of the plaintiffs. Those remarks were made in the context of justifying the cancellation of a planned mediation.
The State of South Australia fought the case essentially on the premise that what was done in the circumstances was reasonable. This was based on the remoteness of the mine site, the lack of proper facilities, the need to improvise and cut corners and the fact that when the protesters came onto the land in large numbers, split-second decisions had to be made to ensure the continued safety of the public and to protect the mine property. It was submitted that these difficulties were compounded when a few protesters decided to throw rocks at police and police vehicles.
This submission loses some of its force by virtue of the fact that such a protest was anticipated and there was advance planning in considerable detail with the preparation of the well thought out and detailed Operation Beverley. When the trouble began on 9 May 2000 it is my view that much of Operation Beverley was ignored, to the extent that individual police officers misused their general powers. Superintendent Boxall, as the officer in charge, appeared to lose control.
I have had to guard against being wise in retrospect in my criticism of the police operation, and Superintendent Boxall in particular, but I do feel that once the Star Force entered into the equation, because of their particular training, of necessity the exercise became a de facto military exercise which then had an influence on some of the uniformed officers in causing them to use unnecessary force. It is my view that most, if not all, of the force used was unnecessary because, in general, once the Star Force officers appeared, kitted out in helmets, and with shields and batons raised, the general body of the protesters naturally retreated and had no desire to remain on the mine site. The emergence of the Star Division officers in full riot gear was an imposing sight which had the desired effect.
The plaintiffs submitted that the police officers colluded amongst themselves with a plan to use force and violence on the protesters. Miss Nelson submitted that this theme remained throughout the trial. My comments as to the actions of the various police officers are not related to any collusive plan. In my view there was none.
What followed was an unnecessary use of force by the Star Force and undisciplined use of capsicum spray and batons by uniformed officers. The arrests which were made were random and those detained had been singled out without being involved in any breach of the peace or the commission of any substantive offence. Most of the plaintiffs were isolated from the main group of protesters when apprehended.
3. Days preceding 9 May 2000
The main group of protesters had come via Wilpena Pound where they had camped on 5 May 2000. There were police officers in attendance at Wilpena, following the progress of the protesters. Wilpena Pound is about 150 kilometres south of the mine.
On Saturday 6 May, 24 officers, including Superintendent Boxall, arrived at the mine site. A briefing took place and there were no incidents with the protesters.
On the morning of Sunday 7 May a further briefing took place. The police intelligence was that there were 25 to 30 vehicles heading for the mine site on the way from Balcanoona. Later in the day about 100 persons were noted camped at a creek bed just east of the main gate to the mine.
Some protesters went onto the mine lease that afternoon. Those persons were detained and removed from the lease. The Beverley running sheet records details of nine persons detained for trespass or breach of the peace. When apprehended, they were detained in a disused toilet and ablutions block and then later released at the main gate. The running sheet shows that they were detained for about three to four hours.
Five officers from the Star Division of the police force arrived at about 11.00 pm. They then performed night shift duties. They had been summoned to attend when Superintendent Boxall decided he needed additional resources.
On Monday 8 May a meeting was held in the morning between Superintendent Boxall, the Star Division and Heathgate management. The running sheet shows that one protester was arrested for various offences, which are not listed.
Some replacement police officers arrived in the afternoon by police aircraft. They replaced those who returned to their country stations. The running sheet shows at 18.04 hours, “Breach of peace by some protesters by entering land inside main gate. Persons requested to leave. They were compliant but appear to be testing police action”.
The running sheet for Monday 8 May also records negotiations between Mr Coulthard, and others. By and large, Monday was an uneventful day for the police.
4. The events of 9 May 2000
The Channel Seven crew of Mr Holland and Mr Caldicott conducted interviews with Mr Coulthard and Mr Kevin Buzzacott at about 8.20 am on the morning of 9 May 2000. Mr Buzzacott was an elder from another Aboriginal community nearby. These interviews are captured in various video footage. It was after the interviews concluded that Mr Coulthard and his grandson Weylon crossed onto the land, followed closely by the first protesters. Weylon is plaintiff Helen Gowans’ brother. From the various video footage and times recorded on that footage, this entry took place sometime just prior to 9.00 am. Therefore it can be safely assumed that the first protesters had crossed over the fence onto the mine lease just prior to 9.00 am. By about 9.15 am a number of people had crossed the fence. The protesters did different things; some continued to walk north following the fence line and others spread out onto the mine lease.
The first arrest on that day was most likely the arrest of the person known as “Mohawk Man” identified on the video by his distinct haircut. He was arrested for no apparent reason other than the fact that he was on the land and was apparently clowning around. At around the same time the incident involving the alleged spraying of Jeni Gonzalez and Helen Gowans took place.
The Kaesler/Gornall incident then took place, followed by the arrest of both Ms Gonzalez and Matthew Bonner within a fairly short time.
(i) Kaesler/Gornall incident
On 9 May 2000 police officer Mr Martin Gornall was paired with police officer Mr Troy Kaesler. In his evidence Mr Kaesler said that they travelled in their police vehicle towards a group of about 20 to 30 protesters, stopped and got out of the police vehicle. I estimate this to have occurred just before 9.25 am. He said he then yelled to the protesters that they were trespassing and were required to leave or they would be arrested. Mr Kaesler then described how the protesters were walking in two lines. He approached a female who was walking past and told her that she was under arrest for trespassing. Why he did that is not certain. He said that she struggled and resisted his hold and it was at that stage that other protesters came to her assistance in trying to pull her free of his grasp.
He then says that he and Mr Gornall were completely surrounded by protesters and that he received numerous blows to his upper body, head and facial area. He said that when he was able to move backwards, he commenced using his OC spray from the container held on his belt, which was the standard police issue. He said he used the spray to move the protesters away from him and to keep them from coming towards him. He said he continued to use it to ensure that they moved away from himself and Mr Gornall.
He then described the circumstances of the arrest of Ms Gonzalez and the transporting of her across the ground to the police vehicle.
In relation to this particular incident Mr Gornall said that prior to the group walking towards them, they appeared to be passive but then they surrounded him. He said he was pulled and shaken and hit when surrounded and he was also kneed in the groin. He said he lost the epaulette from his jumper and the radio cord and hand piece that attaches to the radio on his person was ripped from the actual unit. In cross-examination he agrees that he was only surrounded for a few seconds. He says it was extremely frightening. He was shown the footage of the incident and agreed that there were protesters in front of him but he was not in the middle of the group. He identified one part of the video where he says he is surrounded. He says he was pulled out from the group by his jumper by Mr Kaesler. He says there was no way he could have got out of there without being pulled out.
Miss Nelson submitted that it was in response to the officers’ request to leave the land that the protesters surrounded the officers. She then submitted that the protesters resorted to violence against the two police officers.
In the overall scheme of things, Miss Nelson places the actions of the protesters as the precipitating event. She says this showed an intention by the protesters to resort to violence rather than comply with the police directions. Miss Nelson points to audio in which the protesters accuse the police of trespassing as evidence that they were told by Messrs Kaesler and Gornall to leave the land.
I have seen the video footage of this incident many times during the course of evidence and again during final addresses. I have also seen the slow-motion version of the same incident. In my view the incident as described by Mr Kaesler and Mr Gornall has been exaggerated by them. I appreciate that the whole of the incident might not be captured on the footage but it certainly shows for a considerable time, that although there was clearly a skirmish, and although there was some pushing and shoving, the circumstances as described by both Mr Kaesler and Mr Gornall are in my view over dramatic. When Mr Kaesler is backing out of the group he is not being pursued by anyone or being pushed or pulled. The protesters seem to be attracted towards something or someone lower down, possibly a protester on the ground, rather than concentrating their efforts on either of the police officers. They might have been concentrating on Helen Gowans, who was pulled into that group. That would explain why they appeared to be looking down.
I have observed in most video footage on the day, including that incident, that it is unlikely that any requests made generally to leave would have been communicated to the protesters. There was just too much background noise of yelling and shouting, and vehicle noise, for anything in the nature of a request to leave would have had any impact at all. I am not prepared to find that, if requests were made, they were adequately communicated to the protesters.
It was as a result of the Kaesler/Gornall incident that police officer Mr Terence Paynter says that he drove into a group of protesters, because he believed he saw the police officer Mr Dale Oates being endangered. Mr Paynter’s memory is clearly wrong in this because Mr Oates was not involved in that incident, nor was he involved in any similar incident which could have been mistaken for this one.
(ii) Driving into the protesters
This event occurred at around 9.25 am and the footage clearly shows Mr Paynter’s vehicle driving into the protesters. On the video you can hear the horn sounding continuously. I deal with this incident again when considering the individual plaintiffs who were involved. The video footage clearly shows Mr Paynter’s vehicle either coming into contact or very near contact with the protesters. On such rough terrain the driving of a vehicle in that fashion was, as I have said elsewhere, fraught with danger and unwarranted. The initial reason advanced by Mr Paynter was that it was because he thought Mr Oates was in the middle of the group but that was, as I have indicated, quite wrong and, in any event, would not have justified the action.
After this incident, Ms Brown, who says she was threatened by the driving because she was part of that group, was isolated at some stage and then arrested. It was following her arrest and Mr Paynter driving into the protesters that some rock throwing which can be observed on the video took place. This was within a minute or so, according to the times on the video, of the cars having been driven at the protesters.
The driving in close to the protesters in such a manner was not necessary. It was clearly a catalyst to the events which followed, including the almost contemporaneous rock throwing by the protesters.
(iii) The rock throwing incident
Clearly there were rocks thrown both at police and at police vehicles. The video footage shows several protesters involved in the rock throwing. The whole incident of rock throwing lasted probably about a minute or two. It has not been established that any plaintiff was involved in the rock throwing. The rock throwing by the protesters cannot be justified. It was dangerous and stupid.

It seems, however, that the rock throwing did follow closely upon the incident where police vehicles, including those driven by Mr Paynter and police officer Mr Neil Wilson, drove into or close to the group of protesters. It was also contemporaneous with the arrest of Ms Brown. Airborne rocks can be seen on the video footage at the time she is being taken into the police vehicle.
Police officer Mr Brendon Irrgang says rocks were thrown at him but did not hit him. Mr Oates says he saw rocks thrown and that some four or five connected with his body. Mr Paynter says that the rocks were tennis ball size. Both police officers Mr Wilson and Mr Paul Clonan confirmed the rock throwing as being about the time Ms Brown was being arrested. Police officer Mr Philip Emmett was hit by a rock in his abdomen.
Mr Kaesler says he was hit by rocks. He indicated on the video footage where he says one rock was aimed at him, and that appears to be so. Mr Gornall says rocks were thrown for about five minutes and says there was a lot of rock throwing.
I will separately analyse the evidence of alleged subsequent rock throwing once the Star Force became involved, but at the present time that is a sufficient description of the rock throwing before the involvement of the Star Force.
I have indicated that the rock throwing by the protesters was dangerous and unnecessary but the reaction to it by Superintendent Boxall needs examination. He ordered the immediate retreat of his officers and at the same time summoned the Star Division and held a briefing. The officers withdrew to the drill site. The briefing on the drill site took place at about 9.45 am or thereabouts. The note of the briefing contained in the police running sheet shows that the intention was that protesters were only to be detained using breach of the peace powers, unless a substantive offence was involved. I would interpret that as meaning that unless someone was caught red-handed throwing rocks or committing any other offence, then the rest of the group would be asked to leave and then arrested if they refused. A number of protesters had started to leave at the time of and subsequent to the rock throwing. At the time of the retreat, the protesters that remained were either sitting or standing and not creating any problems.
(iv) Briefing
The briefing can be seen on the video footage. No audio is available of who said what at that time and no notes were made by anyone as to what was said. Obviously some police officers remember parts of the briefing and who gave the briefing but a lot of detail is lacking.
It seems that Superintendent Boxall, Sergeant David Miller and Sergeant Riekie all addressed the officers during that briefing. The impression I gain from the evidence overall is that Sergeant Riekie was the most dominant of the speakers at the briefing.
Sergeant Miller was more concerned, it appears, with the logistics of the arrest teams, and some officers indicated that what Superintendent Boxall said was merely a repeat of what Sergeant Riekie said. It is clear that Sergeant Riekie issued general instructions. He was to command his own officers as well as the uniformed officers in the attempt to move the protesters from the mine lease.
It is my view that Superintendent Boxall, whether by design or not, handed over control of the operation either directly or impliedly to Sergeant Riekie at that stage. This meant that the uniformed officers were placed into a quasi military operation. It seems to me that they did not have any real understanding or knowledge of the Star Force methodology. There was clearly confusion, from the evidence of the uniformed officers, as to how and in what circumstances they were to use the large cans of capsicum spray which were allocated to them by the members of the Star Force. Sergeant Riekie said that the officers were told to use it in conformity with the general rules relating to the use of capsicum spray. Mr Kaesler, Mr Wilson and Mr Gornall said that Sergeant Riekie told them they were to spray on his command. Sergeant Riekie says he did not give any such order.
There is also confusion as to the purpose in the task assigned to those officers who were allocated capsicum spray. There is confusion in the evidence as to whether they were to use the spray in protection of the Star Force officers or in conjunction with the arrests, or both.
It is my view that the scenes which followed, and as depicted in the video footage, show that once the Star Force “split the pack” of protesters, there was considerable confusion. It is my view that the exercise showed a lack of planning and consultation, and lack of cohesion as to what methodology was to be used with a lack of any specific directions from Superintendent Boxall. His officers were in a situation of both using their own discretion and at the same time following the commands of Sergeant Riekie. In relation to the exercise of their discretion, clearly some officers overreacted in their use of capsicum spray and batons. As I say, I suspect this is because once the Star Force became involved the whole operation took on a military connotation. Force was applied by the Star Force to the group of protesters, which force I consider was unwarranted at the time. It is difficult to see, in retrospect, what was achieved by “splitting the pack” other than confusion. In my view a simple and loud command to leave, over a vehicle loudspeaker or speaker system, would have been much more effective and less confronting.
(v) The Star Force involvement
At about 10.00 am after the briefing the Star Force officers were mobilised and proceeded to approach the protesters on foot. This can be seen clearly on the video footage. When confronted by the sight of the Star Force officers with helmets, face shields, full body shields and batons, the protest group naturally walked in the opposite direction. Whilst they initially walked in a north-westerly direction which was toward the mine infrastructure, they then turned in an easterly, south-easterly direction, that is, towards the fence and away from the mine. On the video footage they appeared to be moving in an orderly fashion in a group towards the fence.
At that stage there is a dispute about what the protesters were doing. Star Force officers maintain that some rocks were being thrown, although accounts of this vary considerably. It is not apparent on any video footage that I have seen that rocks were thrown at this stage. Because there is quite an extensive video coverage of the Star Force involvement and from various different perspectives, I have formed the view that the evidence given by some police officers regarding the throwing of rocks at this stage has been exaggerated. There were some incidents on video where it was suggested rocks were thrown but it appeared to me that these were really only one or two at the most where someone was clearly throwing rocks as the protesters retreated.
Miss Nelson submitted that there were clear examples of protesters shown bending down. She asked one to infer they were picking up rocks. One person, described as an Ian Fairweather “look-alike”, clearly threw a rock. That is obvious from the video footage. Another protester at a later stage, nearer to the eastern fence, appears to throw a rock. Miss Nelson suggested there were several other such incidents, but I have not been able to find that from the video.
Miss Nelson submitted that the wedge operation by the Star Force with the use of shields only occurred after what appears to be a rock throwing incident. I do not agree that the video shows that to be the case.
As I have said, Sergeant Riekie, the officer in charge of the Star force, decided to split the group. He said this was an attempt to split off the alleged rock throwers from the rest of the group. On my observation, the group was moving towards the fence line in any event. Sergeant Riekie then ordered what he termed the “wedge type” formation to be used to split the group. This involved of necessity some physical contact between the officers and the group. This was done by way of forcing shields onto the protesters and forcing some of them to the ground, with the purpose of enabling the arrest team to arrest those persons. It seems to me from watching the footage that the arrests that took place were random and had no relation to any person actually causing a particular problem. In particular the arrests were not related to any alleged rock throwers. Many of the people who were arrested, it is apparent, were peaceful protesters who were not taking any action other than being on the land. These persons were not placed in police vehicles but merely asked to sit on the ground, which they did. No alleged rock throwers were arrested at that time and no-one was charged with any substantive offence relating to rock throwing. At this stage the object of the exercise, the subject of the earlier briefing, had not been followed.
The actions of the Star Force were then complicated by the unilateral decision of Mr Wilson to run to the outside of the group of protesters and release large bursts of spray into the group. This had the effect of further splitting the group with further arrests being made, again, apparently on a random basis.
I have criticised this operation elsewhere as being a quasi military exercise of necessity because of the training and discipline of the Star Force in carrying out such manoeuvres. Because it took on that complexion, it is my view that it influenced other officers, in particular Mr Wilson, Mr Gornall and Mr Kaesler to act unreasonably in the circumstances. None of the arrests made were for substantive offences as discussed in the briefing, as recommended in the strategies set out in Operation Beverley.
As I have said, apart from an initial north-westerly movement, from the time the Star Force encountered the protester group, the group generally was moving towards the fence. Some people split from the group and actually ran towards the fence. All that was necessary was to ensure that they kept moving in that direction. The actual tactics engaged in were to jog and require the protesters to move at a brisk pace over a large portion of uneven ground. The Star Force officers from time to time jogged quickly to ensure the rapid movement of the protesters towards the fence. This movement took place over several hundred metres and probably took the best part of ten minutes until they reached the fence. Some further arrests were made, again on what appears to be a random basis. Most of the retreat of the protesters at the urging of the Star Force and other officers is captured on video.
Whilst I can understand that the objective was to get the protesters to the fence as quickly as possible, it seems to me that that is what the protesters were doing in any event, and indeed they can be heard claiming that on the audio in several passages. They claimed they were peacefully leaving and asked why could they not be allowed to leave in peace.
The whole exercise engaged in by the Star Force and uniformed officers was quasi military and more appropriate for riot conditions. It was quite inappropriate for the situation on 9 May 2000.
After the arrests that were made on the land from the time the Star Force met with the group, the arrested protesters, including some of the plaintiffs, were placed in cage vehicles. Some of the plaintiffs had been detained prior to the Star Force involvement. They were Matthew Bonner, Isabella Brown and Emily Johnston.
When the remaining protester group got to the fence, followed by Star Force and other officers, the events surrounding the arrests of Lucinda White and Stephanie Conway took place. I will not deal with those arrests separately here other than to say that the entire sequence at the fence occurred at about 10.15 am. I deal with those events in some detail in discussing the evidence of Ms White and Ms Conway and of the various police officers involved at that time. Suffice to say, I have concluded that the police officers who gave evidence that Ms White and Ms Conway were observed on the lease throwing rocks earlier and were then followed and observed from that point until the time they reached the fence were incorrect.
(vi) Arrests
Of the plaintiffs arrested, Mr Holland, Mr Bonner, Ms Johnston and Mr Ian Foster were arrested for trespass and the remainder for breach of the peace. I comment elsewhere that the officers appeared not to distinguish between an arrest for the offence of trespass and the use of their common law powers to detain for breach of the peace. This is demonstrated best by the cross-examination of Star Force officer Mr Andrew Thiele who at the time he gave evidence was an inspector of police. His evidence on the topic shows a basic lack of understanding of the differences.
Mr Walters suggested that because protesters had been arrested for trespass, they were required to be unarrested when told they were only being detained for breach of the peace. My understanding is that an unarrest form would only be required where persons were apprehended and processed and then the charges were dropped. That was not the case here. Despite the confusion as to powers of arrest for trespass and for detention for breach of the peace, I do not consider there was any unarresting required.
(vii) Events at the main gate
Following the arrests of Ms White and Ms Conway, the Star Force and the other police officers moved in a southerly direction along the eastern fence line to the main gate. A lot of time was taken up in the trial of video evidence with footage of what happened at the main gate, which was essentially a stand-off between Mr Buzzacott and the Star Force followed by some discussions between Mr Coulthard and Superintendent Boxall. A “cease loiter” direction was given by Superintendent Boxall at about 11.40 am. He gave the group one hour to leave.
Then followed the arrests of two persons, one known as “Guitar Man” and one Andrew Ross. It was suggested by the plaintiffs that these arrests were staged in view of the general group of protesters to show the rest of the group that the police meant business. Some violence was used, in particular in the arrest of Mr Ross, and both arrests were in full view of the rest of the group. Whether by design or not, the arrests had the desired effect, and within the hour nominated by Superintendent Boxall for the time to cease loiter, the group had completely disappeared from the main gate and headed back to Balcanoona. Superintendent Boxall gave evidence that all protesters had cleared the main gate area by 12.30 pm.
As it turns out, the arrest of Guitar Man was completely unjustified and unlawful. He had been singled out by Mr Kaesler as the person who threw rocks at him on the mine site. Mr Kaesler was wrong in that regard. Guitar Man was never on the mine site. Mr Kaesler also wrongly identified Ms White as a rock thrower.
Mr Ross was arrested for offences to which he later pleaded guilty, thus indicating that his earlier actions warranted his arrest. The means of his arrest were fairly brutal, including being repeatedly hit with a baton, probably by Mr Thiele and being sprayed in the face from very close range by Mr Wilson.
Much has been made by the plaintiffs of the arrest of Mr Ross in particular to show the alleged brutality with which the police acted on that occasion. Other than fitting into the time sequence there is not much relevance in the arrests of either Guitar Man or Mr Ross. I cannot draw any conclusions based on propensity evidence to conclude that the violence exhibited towards Mr Ross was therefore also applied by other officers on the mine lease. I am not prepared to do that. It does show, however, that for the officers involved in that arrest – and there were many of them – Mr Ross was clearly targeted for some reason, and in later video footage he appears very distressed by the whole experience. Much of that would no doubt be due to the spraying of capsicum into his face at very close range. There were at least four or five officers involved in his apprehension and it is hard to see how the use of spray was warranted on that occasion. In my view it shows that the police used excessive force on that occasion.
5. Detention of individual plaintiffs
(i) Lucinda White
Ms White had been an active environmentalist for some years before May 2000 and had moved to Copley near Leigh Creek where she started a group called the Flinders Ranges Environment Action Collective. She experienced some contact with the local police at that time, who were aware of her presence within the community. In particular Sergeant Miller and Ms White were acquainted with each other.
She wished to engage in a peaceful demonstration at the Beverley uranium mine and was involved in the preparation of flyers to advertise the fact and also to hold meetings prior to going to Beverley. She had a particular interest in the Adnyamathanha people and had spent some time living and working with them and knew their culture. She was involved in informing the local indigenous community about their rights and she had some specific concerns with the use of ground water in the mining process. She was opposed to uranium mining at Beverley because of her concern that the grant of the mining lease was in breach of native title.
Ms White travelled to the camp at Beverley in convoy and took up a role which involved overseeing the more practical aspects of the protesters’ camp, including the cooking of food, the gathering of wood and looking after the Aboriginal people that attended.
On the morning of 9 May 2000 she said that she did not go onto the mine land. She knew some people had gone onto the land and about a half an hour or so after people had crossed over the fence she was aware that they were returning stressed, apparently as a result of the police using capsicum spray. She said she was handed a camera by one person who was coming back off the mine site and who asked her whether she would take over the filming because that person was affected by capsicum spray.
Ms White then travelled in a 4WD vehicle in a northerly direction along the eastern boundary fence for about a kilometre where she said she then stood on the bonnet of the vehicle in order to take film. Exhibit P2 contains a film from the camera which she operated at the time. The film shows a large group of protesters retreating from the mine site to the eastern boundary fence. This follows the engagement of the protesters by the Star Force, which is also part of her film. In particular it shows the witness Mr Caldicott from Channel Seven running off the land carrying the camera which he had taken from his colleague, the plaintiff Mr Holland. Mr Caldicott and his camera were placed in the 4WD vehicle and the vehicle left. Ms White’s film then shows the police contingent, including Star Force, walking or running behind the protesters to move them in the direction of the boundary fence.
Ms White says that whilst outside the mine lease, she was tackled from behind and flattened to the ground, the camera was taken from her and she found herself lying face down on the ground. Her voice can be heard on the audio of the footage calling out “shame” several times at some point. She said that she was sat on by what she thought were two policemen who held her arms behind her back and pushed her face into the dirt and pulled her hair. She also says she was capsicum sprayed at close range in the eyes and up the nose. She also says she was insulted and sworn at.
She identified two police officers who then dragged her upwards as wearing a blue uniform. That means of course that they were Star Force officers. She says she was then marched towards the fence, which was nearby, asked whether she was going to get over it. When she refused she said she was picked up and thrown over the fence onto the ground on the mine side of the fence. She was then placed in a waiting police vehicle. She said that she was with Ms Conway who was also arrested at about the same time and placed in the vehicle. So too was plaintiff Sam Hoffmann.

Ms White said that in the incident her sunglasses were broken, her necklace was broken and a vest she was wearing was damaged. Later she was taken in the vehicle to what she described as a compound area and told to spread-eagle herself with her arms and legs where she was searched or patted down by a male police officer. She said she was offended by this. After that she was placed in the shipping container, where she remained for close to three hours. She said that water was eventually provided but not before many requests were made and probably for an hour and a half or two hours after being placed in the container.
She gave evidence similar to the other protesters in relation to the subsequent welding of the wire cage which occurred, namely that it created fumes and sparks. She said no warning was given prior to the welding and she did not see a police officer inside the container while the welding took place.
Sergeant Miller was the officer in charge of Leigh Creek and knew Ms White, and when he recognised her after she was released from the container she said that he said to her, “This is as far as you’re going to get, Lou”. She was told at that stage she was being detained for a breach of the peace. She was then moved into the cage area which had been welded to the container. Later she was transported by police vehicle to Balcanoona National Park; she says it was evening time when she arrived. When the camera was returned to her it was empty and she next saw the film during her involvement in giving evidence to the Police Complaints Authority. I will deal with her case for damages separately but generally she said that apart from some cuts and scratches she had a difficult time mentally for the few months following the incident and she was very stressed and worried during those months.
It is noteworthy that she was not cross-examined on her description of the alleged assault or on being tackled and knocked to the ground. She was not cross-examined about having her face pushed into the dirt, having her hair pulled or being sprayed with capsicum. That is probably because the defendant was uncertain as to exactly who was involved in her detention and removal at the fence area. No-one actually owned up to arresting her.
Significantly some of the witnesses for the defendant described her as a rock thrower, whom they themselves had observed throwing rocks on site and then subsequently moving from the site to the position she occupied outside the fence. She was apparently arrested because it was believed she was a rock thrower. There was never any charge laid which related to rock throwing. She was challenged in court regarding the presence of the 4WD vehicle in the first place and further challenged regarding her statement that she stood on the bonnet of that 4WD vehicle taking film. There was a discrepancy in her statement to the Police Complaints Authority regarding the time she was handed the camera that she used to take the film. She said in examination-in-chief that she was handed the camera at around the camp area and maintained in cross-examination that that was the correct version. Her earlier statement given on 17 November 2000 was that the camera was handed to her by someone when they left the mine site. Ms White said in court that after being given the camera, the 4WD vehicle, supplied with water and first aid, headed to locate the protesters coming off the mine site.
Ms White said that she filmed continuously until she was tackled to the ground, although she may have stopped filming at one stage when she climbed down from the bonnet of the vehicle. She thinks she was filming for probably a total of less than ten minutes. She maintained under cross-examination that she never went onto the mining lease until she was taken over the fence by the police officers. She said that when she can be heard on the footage saying “Shame on you, shame on you”, she was at that stage being pushed into the ground and cradling the camera.
Ms White maintained that she was definitely thrown over the fence and that the officers who put her over the fence were not in khaki uniform. She then said she was not absolutely clear but it was her memory that Star Force officers were involved in her arrest. She was cross-examined as to why she did not tell anyone in authority that she had not been on the mine lease and her answer was that she was reasonably strung out and did not say anything to the arresting officers. She said she was just trying to cope with having been sprayed with capsicum.
Most significantly it was not put to her at the time of her arrest that she was a person who was on the land earlier throwing rocks. This is quite surprising in view of the fact that several officers, including Sergeant Riekie actually picked her out and followed and observed her, according to the evidence, from early in the piece before the main group commenced its retreat to the eastern fence.
As I have indicated, there is some mystery surrounding which officers were involved in her arrest. Whilst Mr Kaesler seemed reluctant to admit to any role in the arrest, I think it is likely that he was the arresting officer. He was pointed out as such by some members of Star Force. He was also identified by those members of Star Force as the person who on the day had identified Lucinda White as throwing rocks whilst on the mine site. Mr Kaesler was liberal in his use of capsicum spray at an earlier point of time and still had the large canister when he was with Lucinda White at the boundary fence. I accept her evidence that she was sprayed and I believe that either Mr Kaesler or Mr Wilson were the likely culprits. The Star Force officers did not have capsicum spray on that day.
Mr Kaesler’s version of events is that the Star Group officers had crossed over the fence and apprehended two females. He says he then assisted one of the Star group members in grabbing hold of one of the females who had a video camera and taking her to the fence. That was clearly Ms White. He says he was then requested by one of the Star Group officers to assist in getting her to her feet and walking her to the boundary and that when they attempted to lift her he grabbed her left side. The pattern of arrests up until that point of time had been that although protesters were isolated by Star Force officers, the arrests were actually conducted by an arrest team which included Mr Kaesler. I think it likely that he in fact was the arresting officer, and probably was one of the officers who tackled Ms White to the ground. He identified the other persons in the general area as the five Star Group members, police officer Mr Gavin Stone, Mr Wilson and Mr Gornall.
I will later deal with his evidence generally. One particular point of interest is that he said he was unable to recall an incident shown on video footage in which he sprayed someone who was lying on the ground. He said he had no memory of that incident at all. By contrast, he was specifically able to exclude the fact that he sprayed Ms White. He had also made quite a serious mistake in identifying another person, referred to in the evidence as Guitar Man, as a rock thrower on the land at a time when it was proved that Guitar Man had never entered onto the land. His observations on the day have been shown to be inaccurate. I regard him as an unsatisfactory witness.
In relation to Ms White, Mr Kaesler said he had seen her with the main group as they proceeded to move towards the eastern fence. This is not possible if I accept her evidence that she was standing on the bonnet of the 4WD vehicle taking film as the group proceeded towards the fence. He said he first saw her when she was with the main group of protesters, and again that could not be right. He does agree that he took the camera from her but then gave a rather unsatisfactory series of answers in cross-examination as to how it was that she was taken over the fence. He maintained under cross-examination, and despite the video footage, that Ms White was part of the group involved in the earlier incident when the Star Force first engaged the group and that she continued with the group up to the fence. As I have indicated, he says he has a specific memory regarding not spraying Ms White but, strangely, he has no memory at all of spraying someone lying on the ground when the video footage clearly shows the sprayer to be him.
As mentioned earlier, Mr Gornall was Mr Kaesler’s partner on the day in question. If two uniformed officers were involved in the arrest of Lucinda White then the most likely person to have assisted Mr Kaesler was Mr Gornall. He said that as he approached the fence line he was with the Star Force members. He remembers arrests at that area of the fence line but cannot recall if those arrested were male or female. He says, however, there was one person he saw being lifted over the fence. He says there were two police officers actually lifting, in what he described as a passive lift. He said there was no fighting or anything like that, it was a passive lift over the fence and that is the last he saw of it. This is in contrast to other evidence that Ms White was kicking and making life difficult generally for those trying to move her towards the fence. Ms White says that she was kicking and making life difficult. Mr Gornall’s evidence is not convincing.
In cross-examination he was unable to say whether the police officers involved in lifting her over the fence were Star Force or uniformed officers.
Mr Wilson was also in the area where the arrest took place but he says that he has no memory of it. Once again he was an officer who had earlier been liberal in his use of capsicum spray. On the video footage a voice can be heard, which remains unidentified, saying hello to Neil, which is Mr Wilson’s given name. He does not know how far away he was and says he did not spray anyone at that time as far as he was aware. He said he did not have a recollection one way or the other. It was either he or Mr Wilson who sprayed Ms White in my assessment of the evidence.
I now turn to the evidence of the Star Force officers who were involved or potentially involved at the fence line in the detention of Lucinda White. The first of these officers called was Mr Kevin Brown. He said that as they got to the fence he saw someone being arrested. He said he knows it was a female and he saw that person struggling violently. He says he saw two uniformed officers trying to effect the arrest. He repeated that description in cross-examination and could not say whether the female was lying face down or face up. He says he was probably 10 to 15 metres away. He says he was not aware of any Star Force officers assisting in relation to that incident.
Mr Ben Spencer was another member of the Star Force. He says that as they approached the eastern fence line he did not observe anyone standing outside the fence. He was aware of the arrest of two people at the fence line. He said they were both wearing head scarves which were removed so that it could be ascertained whether they were male or female and it was acknowledged they were female. He says he did not see any discharge of capsicum spray. Likewise he says he did not observe anyone kick either of these protesters. That is relevant because Ms Conway alleges that she was kicked by a police officer. He says he cannot identify any of the police officers who were standing nearby but that his recollection is that they were uniformed police from the far north. He says significantly that there was no vehicle outside the fence line as they approached the fence line. This is clearly wrong because the video footage of protesters and police approaching the fence line was taken, as I find, by Ms White whilst standing on the bonnet of the 4WD vehicle. He says he did not see Ms White on the ground at any stage and does not recall how many officers were around her. He believes the first female was screaming the words “shame, shame”. He does not know whether the second female was detained by Star Group or uniformed officers. He says all of the five Star Force officers were in the area close by. He puts the two arrests, that is, of Ms White and Ms Conway, as one incident because that is how he recalled it.
In an earlier statement Mr Spencer had indicated that the people arrested were not thrown over the fence but carried over the fence. In his evidence he said he had no idea as to how they got across the fence.
Mr Thiele was also potentially involved in Ms White’s arrest. In another part of these reasons I am critical of his evidence generally. I thought he was a very poor witness. I thought his demeanour was very poor. In relation to this incident he says that Sergeant Riekie had earlier identified the rock throwers (allegedly Lucinda White and Stephanie Conway) and that they were wearing scarves. Mr Thiele said that he saw the rock throwers get over the fence as they approached and he says there was no vehicle there as they came towards the fence. He said that the Star Force officers did not knock these people to the ground. He said one of them was a “dead weight” so he saw her get picked up and lifted over the fence. I consider his evidence smacks of reconstruction.
Generally in cross-examination Mr Thiele was argumentative and his evidence was inconsistent with other versions he had given in earlier statements and interviews. He reiterated in cross-examination that he saw the two rock throwers on the mine lease earlier when they were identified by Sergeant Riekie. He said that he kept them under observation until they reached the fence line. He says they preceded the officers to the fence line and were just standing there. He says the women fell to the ground without any contact from Star Force officers. He does not recall either of them having a camera and he does not recall hearing the words “shame” or “shame on you” uttered at that time.
Mr Richard Miller was a member of Star Force who I thought had probably the best recall of the Star Force officers relating to this incident. He said Mr Kaesler came up and had a conversation with Sergeant Riekie after they approached the fence line but while they were still on the mine lease. He said Mr Kaesler pointed out two people standing outside of the mine lease about four or five metres away. One of them had a video camera. He said that at some point after that the Star Force became involved in the arrest of the two people that Mr Kaesler had pointed out. He said that one of the people that Mr Kaesler was trying to arrest was thrashing around and swinging her legs in an attempt to kick him. He says he took hold of the female and tried to assist by lifting her over the fence with one hand. He said he did not see any capsicum spray discharged. He said that, once passed over the fence, uniformed members took control of her. He said, as Ms White says, that she was not offering any assistance and making the job of getting her over the fence quite difficult. When cross-examined he said that two Star Force officers actually assisted Mr Kaesler in difficulties he was having getting Ms White over the fence. He described it as a low-level violent altercation. From the record of interview it is clear that at an earlier point of time he believed that both persons arrested outside the fence line were male.
It seems to me that Mr Kaesler was the arresting officer and took Ms White to the ground. Ms White’s recollection of two Star Force officers probably relates to the time when they were assisting Mr Kaesler, and not to the time she was taken to the ground.
Sergeant Riekie was the sergeant in charge of the Star Force on 9 May 2000. He says that as they approached the fence he saw the two people get over the fence off the site and instructed two uniformed officers to go and make the arrest. He remembers one of the protesters calling out “shame, shame”. He says he assisted another officer using his right hand to pick up the leg of one of the protesters around the knee and lifted that person with the assistance of the uniformed officer. He says that took place about five metres from the fence, and when they reached the fence the protester put her foot into the barbed wire to make the exercise more difficult. He said that she was not thrown over the fence. He said he saw no-one kick her or punch her, and likewise he said he saw no-one spray her or grab her by the hair.
In cross-examination he said that earlier he had seen both persons (allegedly Lucinda White and Stephanie Conway) throw rocks when they were on the mine lease. He said he looked at them from time to time from that point and followed them effectively to the boundary where they got over the fence before the Star Force caught up with them. He said it was a minor struggle, not violent. He said that the uniformed officers had one female each and they were struggling to lift them over the fence. He said he believed that one of the uniformed officers was carrying a large canister of gas. He said the first protester, obviously Ms Conway, went across the fence without too many problems but the one with dreadlocks and the camera, therefore Ms White, went completely limp and that is when he then assisted in lifting her over the fence. There were some inconsistencies in his oral evidence in relation to the observations he had made compared with statements which he had made at an earlier point of time. He said he has now had access to material which refreshed his memory and he has obviously made some errors in his earlier statements. He said it was he that directed that the two persons be arrested. He was forced to agree that his earlier statement about seeing the incident from inside the mine site was incorrect. That is obvious from the video footage. He conceded that the person taking the film must have been in that position for sometime because of the distance that the group, followed by the Star Force, had travelled.
The video footage taken from Mr Caldicott’s camera, while he was running towards the eastern fence, clearly shows a 4WD vehicle in position at the fence line. Until that film was slowed down it was not apparent that there was anyone standing on the bonnet but the slowed down version illustrates that to be likely. More particularly the still photographs taken from that video footage show a person standing on the bonnet, in my view.
I find that Ms White was standing on the bonnet as she says and was filming the protesters, followed by the Star Group and other police officers, when they began exiting the land some few hundred metres from the eastern fence. She was clearly not one of the rock throwers identified. The Star Force officers who say she was a rock thrower are wrong. Mr Kaesler likewise is wrong in identifying her as a rock thrower.
As to the circumstances of her detention, it appears from all of the evidence that Mr Kaesler and one other uniformed officer, probably Mr Gornall, were the arrest team for both Ms White and Ms Conway. It is likely that Ms White is incorrect when she says that a member of the Star Force was sitting on her. She may remember their uniforms because they were involved in assisting to get her over the fence but the most likely scenario is that her evidence, which I accept, namely as to the circumstances of her being taken to the ground, having her face pushed in the dirt, her hair pulled and being sprayed with capsicum, was carried out by one of the uniformed officers. It is not possible to say definitely, but it is likely that officer was Mr Kaesler. It is then apparent that Sergeant Riekie and Mr Miller were the two Star Force officers who assisted the uniformed officers in getting Ms White and Ms Conway across the fence. They were probably not thrown as they described but it probably felt like it. Ms White at least did not make life any easier for herself by her attempts to resist but, in fairness, she was being taken against her will onto the mine site for the first time by police officers who had wrongly identified her as throwing rocks, although she was not told that at the time. Sergeant Miller was also nearby. He knew Ms White and rather strangely says she was not one of the two females arrested at the fence line. I will later comment on his evidence.

I note also the comments in Delly per Ipp JA at [25]:
A tendency has developed to assume that, where plaintiffs are successful in cases of false imprisonment, exemplary (and, indeed, aggravated) damages should be awarded automatically against the police. Such a tendency is incorrect and should be avoided. The requirement laid down by the law must be applied, properly, in each individual case. I record my express agreement with what Basten JA has written (at 149 [115]-[117] infra).
Basten JA said at [115]-[117]:
[115]Circumstances of aggravation do not necessarily demonstrate conduct of a kind warranting an award of exemplary damages. Such an award is justified by reference, not to the effects on the plaintiff, but to the knowledge, intention or recklessness of the tortfeasor. An award of exemplary damages may be justified by “conscious wrongdoing in contumelious disregard of the plaintiff's rights”. On the other hand, actual subjective advertence to wrongdoing is not necessary, at least, it would seem, in circumstances where the conduct is objectively outrageous so that the tortfeasor can properly be described as reckless.
[116]One purpose of an award of exemplary damages is to deter both the wrongdoer and others who may be in his or her position from a repetition of the kind of conduct under scrutiny. In the present case, it is the State of New South Wales, rather than the individual police officers who will suffer the financial burden of an award. Further… such an award may indirectly have a deterrent effect on the police officers concerned through the response of the Police Service. It is, therefore, important to preserve the deterrent effect of such an award. That effect will tend to be diminished if the preconditions for an award are not tightly controlled. No doubt it is important that police officers know and observe the limits of their powers: however that desirable end will not make a careless or mistaken exercise of power outrageous or high-handed.
[117]The fact that an award of exemplary damages constitutes an expression of the Court's disapproval of the conduct does not mean that the Court's disapproval is a sufficient reason to make an award.
Before making an award of exemplary damages, I must review all evidence which might mitigate the defendant’s conduct.
In Andary v Burford (1994) Aust Torts Reports 81-302, a truck driver (appellant) and car driver (respondent) were in a minor accident, which turned into a verbal altercation. The appellant tried to drive off and avoid further argument but the respondent got out of her car, abused the appellant, and held on to the side of his truck. The appellant, while moving, shook his truck door to dislodge her, and after she fell to the road in a heap he continued to drive away. The appellant appealed against the magistrate’s decision to award $7,500 in exemplary damages without reduction for the respondent’s provocation. Millford J allowed the appeal and reduced the damages by half for the respondent’s loud, drunk and abusive provocative conduct.
As I have said, I have not found there to be any provocation on the part of the plaintiffs or any lawful motivation for the defendant’s conduct in committing the offences.
Distinction between aggravated and exemplary damages
As already discussed, aggravated damages are generally compensatory in nature and are awarded to restore the plaintiff’s dignity and to compensate for conduct which has shocked them. Exemplary damages, on the other hand, indicate the court’s disapproval of the defendant’s conduct.
The distinction between the two heads of damage was first recognised in England in 1964 in Rookes v Barnard [1964] AC 1129 (HL) at 1221 per Lord Devlin.
It has been accepted in Australia that the distinction is difficult to make in some circumstances.
In Uren Taylor J said at 129:
Prior to Rookes v Barnardthe law relating to exemplary damages both in England and in this country was that damages of that character might be awarded if it appeared that, in the commission of the wrong complained of, the conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff's rights. Various expressions had been employed to describe such conduct and the law, though, of necessity invested with a degree of flexibility, was sufficiently certain. The cases in which this principle has been acted upon are numerous and it is sufficient for the present to say that it has been acted upon in this Court on a number of occasions. It is, perhaps, desirable to point out that there had been a degree of confusion between “aggravated” and “exemplary” damages and sufficient attention has not, in the past, been given to the distinction between these two concepts.
Windeyer J said at 149:
[A]ggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve to one or more of the objects of punishment – moral retribution or deterrence.
Double punishment
While the purposes of aggravated damages and exemplary damages are different, both may be awarded if appropriate.
An example of that would be intentionally insulting conduct, which offends both the plaintiff and the court. This proposition was considered in Johnstone v Stewart [1968] SASR 142.
The court stated in Ibbett at [35], referring to the “global” approach:
[35]In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damages and no element more than once. Such an approach was adopted by Bray CJ in Johnstone v Stewart.
The court affirmed the remarks of Spigelman CJ in the judgment appealed from at [34]:
[34]…it is relevant to note that the matters to which I have referred as justifying an award of exemplary damages are also pertinent, as is often the case, to an award of aggravated damages. The difference is that in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant. Nevertheless, it is necessary, as I have noted above, to determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation.
In a case such as the present one, I must be mindful of the remarks of the court at [36] with respect to:
[36]… the conceptual distinctions between aggravated and exemplary damages and of the dangers of an excessive overall award where some or all of the factors supporting one head of damages also support(s) the other.”
Relevantly, Smith J in Walker v Hamm (No 2) [2009] VSC 290 said at [63]:
[63]It has been noted in the authorities that there is no necessary proportionality between compensatory and exemplary damages. In addition, however, it has been recognised that in reality there can be an element of punishment in aggravated damages. As a result, in considering whether to award exemplary damages and, if so, their quantum, it is necessary to consider whether the awarded compensatory damages, including aggravated damages, address any need that may exist in a particular case for punishment of the tortfeasor through the award of exemplary damages. Double punishment must be avoided. Further, the court should approach any assessment with restraint and moderation. It also appears to be established that deciding whether to award exemplary damages, and their quantification, generally will involve the exercise of discretion except where there is no room for a discretion.
13. Factors relevant to exemplary damages
Mr Walters submitted that some of the relevant factors to be taken into account in awarding exemplary damages to the plaintiffs were as follows:
(a)The police hierarchy and the State of South Australia has endorsed the police conduct on the day.
(b)The conditions in which the plaintiffs were held at Beverley were degrading and the police knew that to be so.
(c)No police officer has been held accountable following the hearing investigating the events.
(d)No apology has been issued.
(e)Statements were made by two Ministers of the government which were inflammatory and hurtful.
It was submitted that the public statements of both the Deputy Premier Mr Foley and the Police Minister Mr Wright show a “high handed and contumelious disregard of the rights of the plaintiffs”. The statements were made by the Ministers to a newspaper to explain why the government had instructed its legal advisers to withdraw from a mediation at the last moment. The mediation had been suggested by and agreed to by both parties and had been approved by the court.
Mr Foley described the plaintiffs as “a bunch of feral protesters who put the safety of our police officers in peril”. The plaintiffs submit that this statement is all the more offensive because it was made with knowledge of a Police Complaints Authority report. This report described incidents which occurred at Beverly on 9 May 2000. The conduct of several police officers was criticised. That conduct was the unnecessary use of force by the use of both capsicum spray and batons and a failure to follow proper procedures.
The application to tender the report was made by Mr Walters after all the evidence was taken. Miss Nelson objected to its tender. The tender was only pressed on limited grounds, namely that it showed criticism of police officers for their conduct on the day. As a result it was submitted that the report is relevant to the issue of damages and the statements made by the two government Ministers.
I have looked at the report for the purpose of deciding how to evaluate the statements made by the Ministers. The report contains criticisms of the actions of some police officers, including senior police officers, on the day in question. I am asked to assume that no disciplinary action has been taken because it was in the hands of the defendant to lead such evidence if that had been the case. The plaintiffs contend that they opened their case on that basis and therefore it should be inferred, in the absence of any explanation by the defendant, that no such action has been taken. Some police officers told me they had been counselled. It is not necessary to make any such inference, in my view.
The fact that there are criticisms clearly set out in the report is sufficient to show that the statements made by the Ministers are unfounded and made in the face of adverse comments by the Police Complaints Authority on the actions taken by the police against the protesters. The report is particularly critical, as am I, of the decision to hold protesters in custody in a shipping container and for long periods which were unjustified. It is also critical of the force used by individual officers.
Mr Foley in his statement also said, “The government sends a message to any anarchist group that we will not be a soft touch. They can have their day in court”.
The plaintiffs have now had their day in court and have succeeded. My findings indicate that the comments made by Mr Foley were both unreasonable and antagonistic when made in the circumstances of aborting the planned mediation. These statements are relevant to the assessment of exemplary damages. The comments are one-sided and do not acknowledge the extreme way in which the police dealt with protesters and the circumstances of their detention.
Mr Wright, as the Minister for Police, made similar provocative statements without any factual basis. He must have known the full details of the report. He said, “The offering of substantial sums to the plaintiffs by way of settlement has the potential to undermine the authority and good standing of the SA Police”. He also said, “The payment of a settlement amount may encourage other members of the public to provoke a response from SA Police in similar situations with a view to seeking compensation from the State”.
Again, these comments were unjustified and offensive to the plaintiffs and will sound in exemplary damages. The authority and good standing of the SA Police was undermined by the report. It is my view that both Ministers, in making these statements, have acted with a high-handed and contumelious disregard of the plaintiffs as citizens of the State with a right to protest, and with the right to be treated according to law if they did protest. As I have found, they were not treated according to law.
14. Assessment for individual plaintiffs
(i) Lucinda White
On the findings I have made, Ms White was assaulted at the time of her original apprehension. She was taken against her will from outside the mine site and transported across the fence onto the mine site, whilst complaining about her handling. She was also assaulted when sprayed. She was verbally abused and insulted and then confined in the shipping container and later in the welded cage. Her total loss of liberty from the time of her apprehension, at about 10.15 am to her release at Balcanoona is probably about seven hours.
Dr Epstein diagnosed Ms White to be suffering from a mild adjustment disorder with depressed mood and anxiety which he said settled within two years.
Ms White said that she had a difficult few months after the events. She said that she was stressed and worried. She said she was easily upset and volatile at times. Ms White had a strong view that the police must be held accountable for their actions and became involved in organising the plaintiffs to bring this action.
For her general damages I would award her $40,000. Because of the way she was treated at the fence and also in the way she was removed from public land and transported across the fence, together with the insults to which she was subjected, I consider that she is entitled to aggravated damages. In addition she was the scope of allegations, which I have found groundless, of being a rock thrower. This was mentioned by several police witnesses but never put to Ms White.
The defendant maintained throughout the trial that she was a rock thrower on the land. That has not been proved, and indeed there is very strong evidence, which the defendant has not been able to explain, which points to exactly the opposite conclusion, namely, that she did not ever enter the mine lease and was certainly not part of any rock throwing when the group generally was retreating towards the boundary fence.
No apology has been forthcoming. She was targeted during the trial as the ringleader of the protesters. She was an organiser to the extent of the pre-Beverly publicity and meetings, but she did nothing at the mine site which was a breach of the peace, nor did she commit any substantive offences. After the event she arranged for witnesses to give evidence to the Police Complaints Authority. I can see no reason why someone, on behalf of the protesters, should not be a co-ordinator and then after the event be involved in ensuring that people gave statements and then evidence to the Police Complaints Authority.
I will therefore award an extra $25,000 for aggravated damages in her case.
I have considered the question of an award of exemplary damages. I have warned myself not to overcompensate because of factors which I have already taken into account in awarding aggravated damages.
However, I consider that the circumstances of imprisonment for the long period of time in primitive and degrading conditions does warrant an extra award for exemplary damages. This applies to all the plaintiffs who were detained in the shipping container. In addition, each plaintiff is entitled to be compensated for the unnecessary and demeaning remarks of the two government Ministers. In my view an award of $15,000 would not be overcompensation.
I therefore award Ms White the sum of $80,000 for damages. Her special damages are $50 for her sunglasses and $60 for her torn vest. I have taken, in the case of each plaintiff, the lower of the figures claimed in the affidavit of loss and from the oral evidence in fairness to the defendant.
Ms White is entitled to interest on her damages. The damages are all for the past. The comments made by the Ministers is so recent I will not allow any interest on that component of exemplary damages. I have decided to use the provisions of s 30C(3) of the Supreme Court Act 1935 and award a lump sum in lieu of interest from the date of the issue of the proceedings (2 May 2003) for a period of about seven years. The damages in each case were sustained by the time the proceedings were issued. There is no component of future pain and suffering and loss of amenities in any of the assessments. I would therefore award a lump sum in lieu of interest in the amount of $15,000.
The total award for Ms White is $95,110.
(ii) Matthew Bonner
Mr Bonner did not commit any breach of the peace. He was filming a documentary and was arrested for trespass without any request for him to leave. I have found that he was physically assaulted by Mr Oates when restrained and held by the throat and placed in the cage van. His loss of liberty overall was in the region of at least seven hours and maybe slightly longer. Prior to his arrest he was driven at by a police officer in a police vehicle. He said that he was insulted and humiliated.
No medical evidence was called on behalf of Mr Bonner. He said that following the events at Beverley he suffered from migraines and he said that he saw an osteopath and a chiropractor. He said that he also lost his wallet. The wallet was returned later but money was missing.
For his general damages I would award him $25,000. For aggravated damages I would award him a further $20,000. I would also award him an additional $15,000 for exemplary damages. I believe some of the same factors apply as with Ms White. In his case the behaviour of the police was not as extreme as with Ms White.
I regard as the aggravating factors the fact that he was singled out whilst filming and not causing any problem. He was run down after being targeted and then harshly treated physically by Mr Oates.
I would therefore award him the sum of $60,000 for damages. For his special damages I award him $100 for the loss of the money in his wallet.
For interest using the same basis as for Ms White I would allow a lump sum in lieu of interest of $11,000. Therefore the total award is $71,100.
(iii) Isabella Brown
I have found that she was assaulted when apparently detained for a breach of the peace. She was not involved in any breach of the peace. She was struck on the legs with a baton. When she escaped from the container she was unfairly treated in relation to the circumstances of her apprehension and her subsequent detention as I have set out earlier. She was rightfully kept in custody because by then it was discovered that she was in breach of her bail conditions. However, the treatment given to her, as I have set out earlier, was unnecessary and harsh in all the circumstances. She was treated very poorly once she was placed under arrest.
She said that she suffered nightmares following the incident. She was examined and diagnosed by Dr Epstein. His opinion was that she suffered a mild post-traumatic stress disorder. For her general damages I would award her $25,000 plus a further $15,000 for aggravated damages. For exemplary damages I would award her a further $15,000. That makes a total award of $55,000.
The aggravating factors in her case are the treatment she received after escaping from the container. I have accepted her account which includes taunting her, handcuffing whilst in a police van, and the actual way in which she was apprehended. She claimed that a camera valued at $1,500 was irreparably damaged. She bought it in 1999. I will therefore allow her $1,000 for the loss.

For interest, using the same basis as for Ms White, I would allow a lump sum in lieu of interest of $10,000. Therefore the total award is $66,000.
(iv) Stephanie Conway
She had left the mine lease when she was detained outside the fence. She had not committed any breach of the peace, nor had she committed any substantive offences. Her treatment, especially the kicks to the ribs, which I have found to have occurred, was particularly harsh.
She said that she suffered from bruising and from nightmares. Her loss of liberty was again in the order of about seven hours. In addition, she was struck with a baton and sprayed.
It was alleged that she was a rock thrower but this allegation has not been made out. I would award her $40,000 for her general damages and a further $25,000 for aggravated damages. Her circumstances are almost the same as those which I took into account for Ms White. In addition, I have found that she was kicked whilst on the ground. She was also humiliated and abused.
In her case I would also award her an amount of $15,000 for exemplary damages over and above her aggravated damages. This would be on the same basis as set out in my reasons for awarding exemplary damages to Ms White. That makes a total amount of $80,000. I would allow her $50 for the loss of her sunglasses.
For interest, using the same basis as for Ms White, I would allow a lump sum in lieu of interest of $15,000. Therefore the total award is $95,050.
(v) Marcel de Bie
This plaintiff committed no breach of the peace and committed no substantive offences. He was sprayed and then held in the container. Overall he lost his liberty for about seven hours. There was no medical evidence in relation to his injuries. I would award him $20,000 for his general damages and a further $10,000 for aggravated damages. This award is for injury to his feelings when he was insulted and humiliated.
In his case I would award a further sum of $15,000 for exemplary damages for the same reasons as previously expressed. His total damages are $45,000.
For interest, again on the same basis, I would allow a lump sum in lieu of interest of $8,000. Therefore the total award is $53,000.
(vi) Ian Foster
Mr Foster was moving towards the boundary fence when he was sprayed and detained, apparently for both breach of the peace and for being unlawfully on premises. Neither of those suggestions have been substantiated. He suffered more fear and anxiety than most when held in the container because he was a person with experience in welding, and as a result held genuine fears as to his safety.
He suffered from bruising, shock and sleep problems, and said that he still has visions of his confinement in the container.
He was examined by Dr Epstein and diagnosed with a mild acute stress reaction which has settled. I would award him the sum of $30,000 for his general damages and a further $20,000 for his aggravated damages. The fear he experienced from the welding carried out on the shipping container was considerable. He was also insulted and humiliated.
I would then award him a further $15,000 for exemplary damages for the same reasons I have set out earlier. His total award is $65,000.
For interest, on the same basis, I would allow a lump sum in lieu of interest of $12,000. Therefore the total award is $77,000.
(vii) Samuel Hoffmann
This man was leaving the property when detained. In fact he was half-way through the fence when he was apprehended. He had committed no breaches of the peace or any substantive offences. Earlier he had been filming and was separate from the group. At the fence he was assaulted by being hit on the hands. He said that he was traumatised by the whole incident. He said he suffered from nightmares, including flashbacks, and he felt humiliated by the whole process. I have accepted his evidence on these matters.
He was diagnosed with a post-traumatic stress disorder with recurrent intrusive thoughts. Dr Epstein believed that this settled without treatment over a period of about 12 months.
For his general damages I would award him $30,000 plus a further $20,000 for aggravated damages. He was insulted, offended by the police and unnecessarily physically abused when he had all but left the mine site.
I would award him an extra $15,000 for exemplary damages for the same reasons as previously expressed. The total award for damages is $65,000.
For special damages I would allow him $300 for the damage to his camera and battery pack and for his jacket which he says was never found.
For interest, on the same basis, I would allow a lump sum in lieu of interest of $12,000. Therefore the total award is $77,300.
(viii) Jamie Holland
This man was arrested for trespass but was given no warning to leave the premises. He committed no breach of the peace. It was always obvious that both he and Mr Caldicott were involved in some way with a commercial filming operation. He identified himself as being from Channel Seven but Mr Irrgang said that did not make any difference. He was assaulted when placed in a headlock and then kept in the container for about three hours. He was then released and driven to Balcanoona. He said that he was fearful during the whole time he was in the container and felt a sense of powerlessness, and he later suffered from nightmares. The medical diagnosis is that he did not suffer from any psychiatric disorder but displayed anxiety symptoms. I accept his evidence as to how the incident affected him.
I would award him the sum of $30,000 for general damages and $25,000 for aggravated damages. The circumstances of his arrest, the placing of him in a headlock, and the way he was treated when it was shown he was a member of the media are all relevant factors in an award for aggravated damages.
In his case I would award him a further amount of $15,000 for exemplary damages. I believe that this is a good example of why the State is liable for exemplary damages. Mr Holland was apprehended whilst going about his daily business, namely as a member of a Channel Seven camera crew. No apology has been issued to Mr Holland. He was also subjected to an unwarranted attack on his character during cross-examination. His total damages are assessed in the sum of $70,000.
For interest, on the same basis, I would allow a lump sum in lieu of interest of $13,000. Therefore the total award is $83,000.
(ix) Emily Johnston
She was arrested for trespass without any prior request to leave the premises. She had committed no breach of the peace. She was sprayed by Mr Wilson in the back of the van and felt the effects of this for some time. She was never decontaminated. She escaped from the shipping container and was then held in a police van for some time. Overall her time in imprisonment was in the order of seven hours or thereabouts. She was insulted and humiliated.
The situation became complicated after the events at Beverley in that she began drinking heavily and went on a crime spree. This was completely out of character for her. Her mother said that she changed her character. I accept that she did.
She received no initial medical attention but in mid-2004 she was diagnosed with depression with suicidal tendencies and was prescribed medication. She suffered from panic attacks. She was cross-examined in detail about numerous contributing factors.
I find that there were these contributing factors but that nonetheless the diagnosis by Dr Epstein of a post-traumatic stress disorder from the events at Beverley, which remained after medication until 2007, is a causative factor. She said she suffered from nightmares and flashbacks and had recurrent intrusive thoughts.
Whilst she had many other problems, all described by her in mid-2004, the fact remains that this event was a contributing factor and a significant one.
I would award her $35,000 for general damages and $25,000 for aggravated damages. The assault on her by way of being sprayed while in the back of the van was a cruel and unnecessary act by Mr Wilson. Her humiliation and the injury to her feelings and the manner in which it was done, including the fact that Mr Wilson said that she and others “stank”, are all relevant.
In addition I would award her a further $15,000 for exemplary damages. This makes a total amount of $75,000.
For interest, on the same basis, I would allow a lump sum in lieu of interest of $14,000. Therefore the total award is $89,000.
(x) Helen Gowans
She was not trespassing and was not apprehended for anything on the day. She was sprayed as a result of a reckless act by Mr Wilson and she was in fear and suffered pain and discomfort as a result of the spraying. She was treated at the Leigh Creek Hospital the following day. She was never taken into custody and the police officers decontaminated her from the effects of the capsicum spray on the mine site.
For her general damages I would award her $10,000 plus $5,000 for aggravating factors, including the injury to her feelings at being confronted, at the age of 10, by a police officer spraying the person she was with, regardless of her safety. That was a reckless and unnecessary act.
I do not believe she is entitled to any further award for exemplary damages. For interest, on the same basis, I would allow a lump sum of $3,000. Therefore the total award is $18,000.
14. Judgment details
There will therefore be judgment for the plaintiffs against the defendant as follows:
(1)Lucinda White           $95,110.00 inclusive of interest.
(2)Matthew Bonner       $71,100.00 inclusive of interest.
(3)Isabella Brown          $66,000.00 inclusive of interest.
(4)Stephanie Conway     $95,050.00 inclusive of interest.
(5)Marcel de Bie            $53,000.00 inclusive of interest.
(6)Ian Foster                   $77,000.00 inclusive of interest.
(7)Samuel Hoffmann     $77,300.00 inclusive of interest.
(8)Jamie Holland           $83,000.00 inclusive of interest.
(9)Emily Johnston         $89,000.00 inclusive of interest.
(10)Helen Gowans           $18,000.00 inclusive of interest.
I will hear the parties as to costs.