District Court New South Wales Medium Neutral Citation: Rawlings v Royal Caribbean Cruises Ltd [2020] NSWDC 822 Hearing dates: 20 – 23 April 2020; 22 May 2020; 1 – 5 June 2020 Decision date: 22 December 2020 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: (1) Verdict and judgment for the Plaintiff in the sum of $97,344 (2) Subject to any application to my Associate by 1 February 2021, to relist the matter for any further or other order as to costs the Defendant is to pay the Plaintiff's costs Catchwords: FALSE IMPRISONMENT – Where the Plaintiff is a passenger on a cruise ship operated by the Defendant – Where the Plaintiff is detained in a cabin on the cruise ship following alleged sexual assault– Whether the Captain was justified at common law to detain the Plaintiff for that time – Whether the Captain was contractually justified in detaining the Plaintiff DAMAGES – Aggravated and exemplary damages Claim– Civil liability claim – Whether the Plaintiff suffered psychological/psychiatric injury Legislation Cited: Civil Liability Act 2002 (NSW) Crimes at Sea Act 2000 (Cth) Evidence Act 1995 (NSW) Jervis Bay Territory Acceptance Act 1915 (Cth) Cases Cited: Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 Hook v Cunard Steamship Co [1953] 1 Lloyd's Rep 413 Prison Officers Association v Iqbal [2010] All ER 663 Ruddock v Taylor (2005) 222 CLR 621 Sangha v Baxter (2009) 52 MVR 492 SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 State of New South Wales v Zreika [2012] NSWCA 37 The Lima (1837) 3 Hag Adm 356 Watts v Rake (1960) 108 CLR 158 Texts Cited: LexisNexis, Halsbury's laws of Australia Category: Principal judgment Parties: Daniel Rawlings (Plaintiff) Royal Caribbean Cruises Ltd (Defendant) Representation: Counsel: Mr D. Stanton (Plaintiff) Mr J. Sheller SC (Defendant) Solicitors: Walker Law Group (Plaintiff) HFW Australia (Defendant) File Number(s): 2019/71056 Publication restriction: Pursuant to s 9 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is a non-publication order for the name and anything that may identify the Complainant which is to operate throughout the Commonwealth of Australia for a period of 20 years. The grounds for the order is that it is necessary to protect the safety of the person pursuant to s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW). The pseudonym "A" will be used. Pleadings and Procedure - paragraph 2 Witnesses - paragraph 8 EVIDENCE - paragraph 18 Arranging the Cruise - paragraph 19 Drug and Alcohol Use on the Cruise - paragraph 28 Interaction with Ms Miles: 13 – 14 November 2016 - paragraph 33 Meeting at the Schooner Bar – 14 November 2016 - paragraph 46 Attendance at Dizzy's Night Club and interaction with A – 14 November 2016 - paragraph 50 Leaving Dizzy's Night Club - paragraph 61 Attendance in Plaintiff's Cabin - paragraph 66 Security Investigation - paragraph 81 The Plaintiff and Mr Champion are taken to the Conference Room- paragraph 142 Decision to Isolate on 15 November 2016 - paragraph 171 Plaintiff Isolated - paragraph 193 Interaction Between A's mother and Ms Miles - paragraph 202 Further Investigations 15 and 16 November 2020 - paragraph 208 Arrival in Noumea - paragraph 217 Meeting With A and Her Mother – 17 November 2016 - paragraph 267 Meeting with the Plaintiff - paragraph 285 The Confinement from 17 November 2016 onwards - paragraph 289 Advice from Port Agent - paragraph 297 Altercation Outside Cabin - paragraph 306 Arrival in Sydney – NSW Police Investigation - paragraph 314 LIABILITY - paragraph 342 Contractual Claim - paragraph 351 Common Law claim - paragraph 355 DAMAGES Assessment - paragraph 414 Pre-Incident Health - paragraph 427 Post Incident treatment - paragraph 435 Submisions - paragraph 506 ORDERS - paragraph 523 Judgment 1. The Plaintiff brings proceedings against the Defendant asserting that he was falsely imprisoned between 15 November 2016 and 20 November 2016 during which period he was a passenger on a cruise ship known as Explorer of the Seas (the Ship), operated by the Defendant. Pleadings and Procedure 1. The matter was originally listed for hearing to commence on 20 April 2020 with an estimate of 3 days. On that occasion, the Defendant sought to amend its Defence. Following argument the matter was stood over to the following day, to enable the Plaintiff to obtain answers to particulars requested in relation to the Proposed Amended Defence. That request being made and responded to, [1] the Plaintiff did not object to the Proposed Amended Defence. Consequently leave to rely on it was granted. [2] A Further Amended Defence was filed by the Defendant with consent on Day 6 of the proceedings. [3] 2. By that Further Amended Defence the Defendant admitted that it was the operator of the Ship and was liable for the acts and omissions of its servants and agents. It further conceded that on 10 November 2016 the Plaintiff boarded the ship at Sydney on a ten day South Pacific cruise returning on 20 November 2016. [4] 3. The Defendant pleaded that as operator of the Ship it was justified at common law to deal with the Plaintiff in a reasonable manner and for a reasonable time as was necessary for the preservation of order and for the safety of persons or property on board including the Plaintiff. [5] 4. The Defendant further contended that the cruise was subject to a ticket contract which, amongst other things, comprised a Guest Conduct Policy and Involuntary Confinement Policy, the terms of which were relied upon for their full meaning and effect. [6] 5. The Defendant admitted that the Plaintiff was detained on 15 November 2016 for 10 hours but asserted that it was justified contractually and at common law to do so because of its belief that such confinement was necessary for the preservation of order and for the safety of the persons and/or property on board in light of investigations undertaken. [7] It further admitted that it continued to detain the Plaintiff thereafter until 20 November 2016 when he was permitted to disembark the ship. [8] 6. In short the Defendant contended that it was:- 1. Permitted, by reference to the contract between it and the Plaintiff, to detain him; and 2. As well or alternatively, the detention was lawful at common law. Witnesses 1. The Plaintiff himself gave evidence before me by audio-visual technology (AVL). 2. Due to technical difficulties experienced by the use of AVL due to COVID-19 restrictions and that a number of witnesses were either interstate or overseas, I ordered that the remainder of the witnesses provide their evidence in chief by way of written statements. [9] Accordingly, the Plaintiff relied on the witness statements of Ms Tegan Miles [10] and Mr Matthew Champion, [11] both of whom were cross-examined by the Defendant by AVL. 3. Mr Champion was a friend of the Plaintiff who stated that he had known the Plaintiff since he was 17 years of age. [12] He accompanied the Plaintiff on the cruise and shared the same cabin with him until 15 November 2016. 4. Ms Miles was aged 18 in November 2016 when she was a passenger on the same cruise undertaken by the Plaintiff. In her evidence, she stated she first met the Plaintiff on the cruise, having not met him previously. [13] She was present in his cabin on the occasion in question which led to the ultimate decision to confine the Plaintiff. 5. The Defendant relied on the following:- 1. Statement of Captain Richard Sullivan, Captain of the Explorer of the Seas, dated 22 May 2020. [14] He stated that as Captain he had final authority on a vessel, and was charged to carry out the Defendant's policies and to ensure compliance with all applicable national and international laws and regulations. He described his primary responsibility as the safety and care of all persons on board, the Ship's seaworthiness, navigation and operation, and the prevention of pollution. [15] 2. Statement of Mr Panagaiotis Panagopoulos, Staff Captain, dated 23 May 2020. [16] He described having responsibilities which included assisting the Captain on matters pertaining to security, safety, navigation maintenance and ethical issues. 3. Statement of Mr Ira Warder (undated). [17] Mr Warder was a Senior Investigator in the Global Security Department of the Defendant based in Miami, Florida. Mr Warder stated that in his role he was responsible for providing guidance and recommendations for captains, officers and crew on-board the vessels of the Defendant in relation to security related matters. 4. Statement of Mr Douglas Mark Williams dated 24 May 2020. [18] Mr Williams commenced employment with the Defendant as a Senior Investigator in or around 2015 based in Miami, Florida. In that role his responsibilities also included providing recommendations to the Captain, Staff Captain, Chief Security Officer and security on-board a vessel if there was ever a security incident on a vessel. 5. Statement of Mr Prasad Ambujam Sreedharan, Chief Security Officer, (undated). [19] Mr Sreedharan was the Chief Security Officer on board the Ship. In his position, he served as the Ship's security specialist and was responsible for executing the shipboard security systems and policy. In that position he was notified of all security incidents on board the Ship and was the primary or chief investigator. He stated that he was required to inform the Staff Captain of all security incidents and what action the security on board were taking, which needed approval from the Staff Captain. He also stated that he needed authorisation from the Staff Captain and/or Captain to ask guests to leave a room and to seal a room. 6. Statement of Dr Andrew Clarey dated 19 May 2020. [20] Dr Clarey was a doctor on board the Ship owned by the Defendant, having commencing employment as a Cruise Ship Physician around September 2016. [21] 1. Captain Sullivan, Mr Panagopoulos, Mr Warder, Mr Williams and Mr Sreedharan also gave oral evidence. Dr Clarey was not required for cross-examination 2. In line with the practice direction at the time documentary evidence relied on by the parties was tendered in the form of a Joint Court Book. [22] 3. Included therein were security incident statements provided to the Defendant on 15 November 2016, as well as statements provided to police by Ms Gezina Strydom on 20 November 2016, [23] the Complainant "A" on 23 November 2018, [24] and A's mother on 4 January 2018. [25] Also incorporated were security incident statements provided to the Defendant on the 16 November 2016 [26] from Mr Jordan Bascur and Ms Aya Houda and a statement provided to police on 5 January 2017 [27] from Mr Jordan Bascur. All were passengers on board the Ship who witnessed some events relevant to these proceedings. 4. There were also a number of other security incident statements principally from staff on board the Ship. These will be referred to in the body of these reasons. 5. Also within the Joint Court Book was a joint report of Dr Stephen Allnutt, for the Plaintiff, and Dr John Chalk, for the Defendant, [28] as well as their respective individual reports. [29] Both were psychiatrists qualified by each of the parties and they participated in a joint evidence session. EVIDENCE 1. At the outset, it should be noted that there is added complexity to this matter due to the events taking place over multiple timezones. Due care has been taken by the parties and myself to reduce the number of discrepancies and to ensure an accurate timeline of the events. Where there has been some contention as to the order of events between what the parties submit and I have found, I have noted it in a footnote along with reasoning for my decision. To ensure consistency and simplicity, all references to time are that of the timezone on the ship, being UTC +11 (NCT). Arranging the Cruise The Plaintiff 1. The Plaintiff's evidence was that in 2016 he and Mr Matthew Champion [30] decided to go on a cruise and share a cabin. The Plaintiff stated that he had been cruising annually, having been on cruises with his grandmother since he was a toddler, and it had become a bit of a tradition. [31] To book the trip, he made a reservation through a company known as "Oz Cruising" to board the Ship's cruise of the South Pacific. The Plaintiff and Mr Champion paid a deposit of $100 each to secure the tickets for the cruise, which was to leave Sydney and return on the earlier mentioned dates. [32] He stated that he went on the trip with Mr Champion in November as he was looking for cruise deals and was unaware that it was schoolies time as he had never himself attended schoolies. [33] 2. The terms and conditions of the cruise was set out in a document, that included the following clause:- 36 Eligibility to travel and guest behaviour Refusal of booking request or passage To facilitate our ability to continue to provide safe and enjoyable cruises to our guests, we reserve the right to refuse to accept a booking request from an individual or group and reserve the right to cancel an existing reservation. If, in our ship's Master or Doctor's reasonable opinion, you are or appear to be unfit to travel for any reason or pose a risk or danger to yourself or a danger to others or behave in such a way as to cause or be likely to cause danger, upset or distress to any third party or danger to property, we are entitled without prior notice to refuse to allow you to travel on any shop and to terminate your cruise holiday at any time. You may then be left at any port or place at which the ship calls without our incurring any liability. You will have to pay any costs, expenses or losses suffered as a result, and we will not pay any compensation or give you any refund. Once your holiday has been terminated in this manner, we will not have any further responsibility towards you. The same right to refuse to allow you to travel or to use any services applies where you are or appear to be unfit to travel or otherwise behave badly as set out above during any other part of your holiday. If you have failed to give proper notice of any physical or mental disability or condition (including informing us of any change or deterioration in any notified disability or condition) which will or may require care beyond that which any travelling companion or we ourselves can reasonably provide, we are entitled to refuse to allow you to travel. However, at our discretion the cruise only fare may be refunded. Guest behaviour On every Royal Caribbean International ship, we are committed to providing every guest with an excellent cruise holiday. You can view the Guest Conduct policy on our website at www.royalcarribbean.com.au. Any guest breaching our Guest Conduct Policy may at our absolute discretion be disembarked to us at their own cost. [34] 1. The Guest Conduct Policy provided:- This Guest Conduct Policy is intended to help ensure that all guest are able to participate in a safe and enjoyable cruise experience and sets forth standards of conduct for guests to follow though out their Royal Caribbean vacation, including transfers to and from ships, inside terminals, while on-board, at ports of call, during shore excursions and at our private destinations. This policy is not intended to be all inclusive, and it is likely there will be conduct issues that it does not specifically address. In the event, as in all others, the Ship's Captain will take appropriate action to ensure the safety, security and well-being of our guests. In addition to this policy, there are also US and foreign laws that apply to Royal Caribbean guests. [35] 1. The Plaintiff stated that he did receive some emails from Oz Cruising but he could not recall any specific document as it was in a format he was unable to access on his mobile phone. [36] In cross-examination he stated the emails were unreadable with the words overlapping. He stated that he wasn't able to read all the conditions of the trip nor was he able to read any conditions or documents relating to behaviour. [37] 2. The Plaintiff stated that he was not sure if he had access to a Guest Conduct Policy prepared by the Defendant but in any event did not read it. [38] 3. The Plaintiff accepted that he paid the balance of the cruise fare on 14 July 2016. [39] Thereafter, he proceeded to check in online and he and Mr Champion arrived at the Overseas Terminal on 10 November 2016 to board the Ship. [40] Following boarding, they were allocated Cabin 6277. [41] The cruise destinations were not in issue and were as follows:- * 10 November 2016 - Sydney, Australia * 13 November 2016 – Lifou, Loyalty Island * 14 November 2016 – Vila, Vanuatu * 15 November 2016 – Mystery Island, Vanuatu * 16 November 2016 – Noumea, New Caledonia * 17 November 2016 – Isle of Pines, New Caledonia * 20 November 2016 – Sydney, Australia [42] 1. The Plaintiff largely accepted that this was so. [43] 2. The Plaintiff was also questioned about the papers he was given on behalf of the Defendant when he boarded the Ship. He stated that he couldn't remember being given a document called a Guest Ticket Booklet, nor did he recall seeing a document with his name and Mr Champion's name on it. [44] He stated that he didn't print anything off that had been emailed to him. [45] He didn't read any document as his reading skills were poor and it was challenging for him to read large documents. [46] He conceded that he had been on many cruises. [47] He acknowledged that there may have been paperwork in the room when we arrived on the vessel, but he didn't read any documents or any pamphlets. [48] He also stated that he did not follow any internet links from the guest ticket booklet or any other document. [49] Nor he did inform himself as to what the guest conduct policy was on board the Ship. [50] There was evidence that the Guest Conduct Policy was found in the guest services directory in every room on board the Defendant's vessels. [51] The policy included what was outlined at [21]. Mr Champion 1. Mr Champion described the Plaintiff as a happy person and that when he saw him out socially he observed him to be having a good time. [52] So far as the cruise was concerned, he recalled it being booked some 12 months in advance. Since that time he met his partner who fell pregnant. [53] He stated that the first three nights of the cruise were uneventful and that he went to bed early most nights because he was more interested in seeing the islands than partying. He described the Plaintiff as going to the nightclubs most nights to party. [54] Drug and Alcohol Use on the Cruise The Plaintiff 1. The Plaintiff acknowledged that he took cocaine onto the Ship when he boarded on 10 November 2016 and accepted he was in possession of an illegal substance. [55] He stated that he thought he took on two grams of cocaine but couldn't recall exactly how much. [56] He acknowledged the length of the cruise but didn't accept that it was likely more than two grams that he took on board as he didn't always acquire the same amount every week and there wasn't always an unlimited supply. [57] Despite having earlier stated that he was not sure the amount took on board he later stated that he believed he only had two grams with him. [58] He stated that it was "definitely correct" that he had consumed all the cocaine he had taken onto the Ship before any of the nights in question. [59] 2. So far as his alcohol consumption at the time of the cruise he accepted that it would make sense that he would purchase an unlimited drinks packages adding that there were a couple of different unlimited drinks packages. [60] 3. It was put to the Plaintiff that in light of the fact that he knew he wasn't able to take cocaine on board, he wasn't particularly concerned about the rules applying on the Ship when he got on it. He rejected this, stating that he wasn't concerned about the cocaine because it only impacted on him and rules that would impact other passengers he would care about. [61] 4. It was put to the Plaintiff that given his personal history at the time he got on the Ship in November 2016, including his use of alcohol and drugs, his criminal convictions which included for supply cocaine and additives, and the fact that he took cocaine onto the Ship knowing that it was a criminal offence to do so, that he was not someone who should be trusted. He rejected this. He stated that he did break the law and take cocaine on the Ship but it was for personal use which he felt was a victimless crime. He stated that that did not mean that he would disregard all the rules. [62] Mr Champion 1. Mr Champion stated that he was aware that the Plaintiff took cocaine on to the Ship and he observed him using it but couldn't indicate where he kept it. He stated that he was not using it in the presence of others but was using it in his cabin. [63] Nor was Mr Champion aware whether there was any cocaine left over after the incident. [64] He reiterated that whilst the Plaintiff was on the cruise to party, he had just found that he was going to be father and was playing it pretty quiet. He stated that he had a condition known as deep vein thrombosis for which he was still receiving medication for at the time. [65] Interaction with Ms Miles: 13 – 14 November 2016 The Plaintiff 1. The Plaintiff stated that on the evening of 13 November 2016, he and Mr Champion went to the nightclub on board the Ship known as "Dizzy's", which was located on Deck 14. [66] He stated that normally things would "kick off" around 10pm and that would have been around the time they would have attended. [67] There, he stated that he met Ms Miles. [68] She was not someone he knew before the cruise, having first met her that evening. He stated that his recollection was having some drinks, chatting to different people, meeting Ms Miles and dancing with her. Thereafter, he invited Ms Miles back to his cabin. [69] He stated that whilst he had some physical contact with Ms Miles at the nightclub he did not display affection with her, but he did observe her drinking alcohol. [70] He stated that Ms Miles appeared to be affected by alcohol, in that she was dancing energetically and was lively, talkative and very friendly. [71] When they went to his room, the Plaintiff stated that Ms Miles stayed with him and they had sexual intercourse. [72] Thereafter they both fell asleep. 2. The next morning, the Plaintiff observed that Ms Miles wasn't feeling well. [73] The Plaintiff stated that she had a high heart rate, and was jittery and anxious, which he described as "like a panic". [74] The Plaintiff woke Mr Champion up and said to him that something was wrong. He then proceeded to contact the reception and got onto the medical centre. He later went with Ms Miles to the centre to make sure that she was okay and stayed with her to comfort her while the doctor did various checks and tests. [75] At that point he stated that he was told that the doctor believed she had had too many Red Bull vodkas and caffeine in her system. [76] The Plaintiff stated that he was in the centre for an hour or possibly two. Thereafter, Ms Miles went back to her room. [77] Mr Champion 1. Mr Champion recalled that on 13 November 2016 he went to bed about 11pm or 12am. He recalled the Plaintiff coming back at about 3am with a girl called Tegan. He believed that they were both intoxicated because of how loud they were. He described the room as having two single beds and he was sleeping in one of the beds, with the Plaintiff and Ms Miles having sex in the other bed. The following morning he recalled the Plaintiff shaking him and telling him that there was something wrong with Ms Miles. He asked whether she had taken anything and was told that she had only been drinking. The Plaintiff then called Ms Miles' roommate who came down, and security and a doctor were called. He stated that after a while everyone had left the room and presumed that Ms Miles was taken to the medical centre. He went back to sleep. The Plaintiff later told him that Ms Miles had too much caffeine and she had a reaction to the Red Bulls she had been drinking. [78] 2. In cross-examination Mr Champion was given the opportunity to read his police statement. In doing so he acknowledged the seriousness of the incident involving Ms Miles on the morning of 14 November 2016. [79] Mr Champion stated that the persons who were in the room, being himself, the Plaintiff, Ms Miles and Ms Miles' roommate did not leave the room before the doctor and security arrived. [80] He stated that his recollection was that they all left together. [81] Ms Miles 1. Ms Miles recalled spending the evening with the Plaintiff commencing 13 November 2016 after meeting at the Schooner Bar. She stated that they enjoyed each other's company and thereafter returned to the Plaintiff's room to have sex. During the course of the evening she had been consuming Red Bulls and Vodka and stated that she was mildly affected by alcohol, but knew what she was doing and was happy to spend time and have sex with the Plaintiff. Following sex in the Plaintiff's cabin they fell asleep. The following morning she confirmed waking up feeling unwell and the Plaintiff called for a doctor to attend and she was later taken to the medical centre on the Ship. At the medical centre, she stated was questioned by staff who alleged that the Plaintiff had drugged her. [82] 2. In cross-examination Ms Miles stated that she had not been back to her room yet and she first saw a nurse and then a doctor in what she believed was the Plaintiff's room. [83] She did not recall a security person appearing in one of these rooms, but she did remember security speaking to her when she was moved to the medical centre. [84] She conceded that she was feeling quite unwell. [85] She accepted that when she went to the medical centre, it was likely that the doctor and nurse were the same ones which attended to her in the Plaintiff's room. She reaffirmed that the doctor asked her if she had any recollection of the Plaintiff giving her drugs. [86] When it was put to her that the doctor never said anything specifically about the Plaintiff, she stated that she believed it was specifically him or his roommate. [87] She stated that he either used the Plaintiff's name or pointed because the Plaintiff was still standing outside the door when this happened. [88] She further reiterated that the doctor asked her whether she had any recollection of that (referring to being given something). [89] Later she stated that she didn't believe that it was specific to the Plaintiff or his roommate but later added that she didn't know whether it was the doctor or the nurse. [90] 3. Ms Miles said that she told the security guard that she was not drugged and had not consumed any drugs. She told them she had been drinking Red Bulls and Vodka and the doctor later informed her that she had reacted to the caffeine and alcohol. [91] 4. Ms Miles recalled the doctor telling her that her urine test suggested the possibility of a urinary tract infection. [92] She accepted that she was told that she should probably stay off alcohol for 24 hours. [93] She did not remember the doctor saying anything to her about staying away from caffeine. [94] Ms Miles did not recall whether the doctor that she saw in the room and the medical centre was male or female. [95] 5. Ms Miles was asked whether she recalled the doctor in the medical centre asking her whether she had had any sexual activity over the last night. She indicated that he did. She did not recall denying that she had done so. [96] 6. Ms Miles stated that after being treated at the medical centre she went back to her cabin and slept for a while. After resting, she went back to the bar to meet some friends and went to order a drink. She discovered that she had been cut off and not allowed to drink. She then proceeded to the customer service centre and after some discussion she was given her drinking card back. [97] 7. Ms Miles stated that she believed she rested before intending to go out again, but she did not have a clear recollection as to how she spent that afternoon. Ms Miles said she knew she did not have a lot to drink on the evening of 14 November 2016 as she thought she had consumed too much alcohol the night before. [98] Dr Clarey 1. Dr Clarey stated that he reviewed a Medical Case Summary and that at around 5.17am on 14 November 2016, he received a call in his cabin from the on-call nurse that there was a female patient, being Ms Miles, who was experiencing breathing difficulties and requested that he attend room 6589. He stated that when he attended there was a male present, who he understood to be the Plaintiff, along with a couple of females. Security were also present. He and the nurse assisted Ms Miles to the medical centre. It was observed that her vital signs showed an elevated heart rate and high blood pressure readings which were not normal in a young female of her age. During the examination, Ms Miles told Dr Clarey that she had consumed a number of vodka Red Bulls, a caffeinated drink. He considered that the symptoms being displayed could have been attributed to the drinks that she consumed. He recommended that she not consume alcohol for 24 hours. Ms Miles denied any drug use and Dr Clarey did not undertake a drug test. When he asked whether Ms Miles had engaged in any sexual activity, he recorded that she denied she had. [99] The clinical notes record that Ms Miles advised she had been at a nightclub, consuming the relevant drinks and going back to the cabin of a friend. At first it was recorded that she stated that the events that happened were consensual, denying sexual assault of any kind. Elsewhere in the notes it was recorded that nothing happened without consent, and Ms Miles denied any form of sexual activity on this occasion. [100] 2. In any event Dr Clarey thereafter discharged Ms Miles after examining her and considered that she had the capacity to leave as there was nothing medically further that needed to be done by the medical team. [101] Meeting at the Schooner Bar – 14 November 2016 The Plaintiff 1. Later on 14 November 2016 the Plaintiff stated that he met Ms Miles again at what he believed was called the "Schooner Bar". At that point he had been told that because Ms Miles had been feeling unwell there were restrictions on her alcohol that day. [102] He was advised, however, that she was recovering and feeling better. [103] He stated that both of them remained at the Schooner Bar for more than an hour and Mr Champion was there for a portion of the time. [104] Mr Champion 1. On the night of 14 November 2016, Mr Champion recalled having dinner with the Plaintiff until about 10pm. He said the Plaintiff thereafter stated that they should go to the nightclub however Mr Champion decided to go to bed as there was an excursion to Mystery Island the next day. He went back to his cabin at around 11pm and eventually fell asleep. [105] Ms Miles 1. In cross-examination Ms Miles stated that she decided to go back to a bar to meet some friends, and believed that this was the Schooner Bar. [106] While Ms Miles could not remember being advised not to drink she accepted that if she had been given such advice she ignored it. [107] She did recall that after getting her drinks pass restored she began purchasing drinks, but did not remember for how long. She stated that it was highly likely that she got to the Schooner Bar around 3.00pm and was there until just before 11.00pm. [108] When it was put to her that that was around 8 hours, she stated that she didn't exactly remember. [109] She stated that it was likely that she would've gone for a walk around the Ship and come back, but that she spent most of her days there because she liked the barman that worked there. [110] Ms Miles stated that she didn't have that many alcoholic drinks as she was spacing out a lot more because of what had happened the previous night. [111] Nevertheless she wasn't 100% sure as to how many drinks she had while she was at the Schooner Bar. [112] 2. Ms Miles confirmed that she met the Plaintiff at the Schooner Bar but couldn't recall how long she was in his company. [113] She stated that the Plaintiff asked her how she was and she stated that she was fine. [114] She stated that she was unaware as to how the Plaintiff was affected by alcohol at Schooners Bar or at Dizzy's. [115] Attendance at Dizzy's Night Club and interaction with A – 14 November 2016 1. Following attendance at the Schooner Bar, both the Plaintiff and Ms Miles went to Dizzy's nightclub again. [116] The Plaintiff 1. The Plaintiff stated that both he and Ms Miles were not drinking as much; however, he had a few drinks. [117] 2. In cross-examination the Plaintiff reiterated that on the night that he had a few drinks but was "not certain" then adding that it was likely "four or five drinks from the afternoon time to the evening." [118] He did not buy drinks for anyone. [119] It was suggested to him that he made a dozen or so purchases of drinks and maybe food between 8pm and 2am from the night of 14 November to the morning of 15 November 2016. The Plaintiff stated that he thought that 12 sounded too many. [120] 3. As to the evening of 13 November 2016, he stated that he and Ms Miles had a lot to drink. [121] He accepted that he was more intoxicated that evening than the night of 14 November 2016. [122] He accepted that as he was feeling partially intoxicated on 15 November 2015 when he later came to be in the conference room he must have been intoxicated at 2am that day. [123] However he denied seeking to earlier give a false impression or give incorrect evidence. [124] 4. The Plaintiff stated that they were watching people dancing, and on occasions they would participate, but spent more time watching every else dance. [125] At some stage during the time that they were there, the Plaintiff said he saw Ms Miles dancing with another girl who he knew as "A". The Plaintiff had not met A before the evening in question and this was the first time he had seen her. [126] At some point, Ms Miles came back to the table and the Plaintiff told her that he found the girl she was dancing with attractive. Ms Miles responded that she felt the same way. [127] He stated that at one point Ms Miles went back to dance with A and also other people in a group to dance in a circle. [128] 5. At some stage the Plaintiff spoke to Ms Miles and suggested that they invite A to join them for "a threesome." [129] Despite the Plaintiff stating that that was the first time he had seen A, [130] he stated that he recalled speaking previously to Ms Miles about having sex with her and another person the previous night. [131] In any event Ms Miles responded that she would like to have a threesome as well, and the Plaintiff stated that he asked Ms Miles to ask A to join them. [132] He said that Ms Miles then went and spoke to A and reported back to the Plaintiff that she was agreeable. He stated that he asked Ms Miles if she would go back and ask A again and confirm that they wanted her to come back to his room to have sex. [133] The Plaintiff stated that Ms Miles did so and they were looking towards him before coming over to the table, at which point he asked A if she would like to have a threesome. [134] The Plaintiff stated that A agreed. [135] Ms Miles 1. Ms Miles gave evidence recalling that she and the Plaintiff had spoken about going back to the Plaintiff's room again. She stated yes, as she had enjoyed her time with him. A discussion took place between the two regarding inviting another girl back for a threesome. She stated that she was happy to do so. [136] 2. Ms Miles stated that she had seen A around the Ship before this night but she did not recall having much of a conversation with her previously. The Plaintiff and Ms Miles were sitting at a table next to the dance floor at Dizzy's when the Plaintiff asked her if she wanted to ask A to come back to his room with them. Ms Miles stated that she called A over to the table and asked her if she wanted to come back to the Plaintiff's room with the two room of them. She stated that A looked over at the Plaintiff and said yes. [137] 3. Despite having stated in Exhibit B at [17] that she called A over to the table at Dizzy's, in cross-examination she stated she didn't recall if she approached A or whether she called her over to the table. Nevertheless, when she spoke to A she said that it was loud and she had to get up close up to her ear. [138] She also accepted she might have beckoned or made a signal asking her to come over. [139] She stated that she remembered that she and the Plaintiff had specifically spoken about the sexual activity that was going to happen but she didn't recall how it was worded to A. [140] At one point, Ms Miles accepted that A was drunk at Dizzy's, however that she didn't know much she had drunk, just enough to say that she was drunk. [141] When it was then put to her that she formed that view while she was at Dizzy's that A had probably drunk too much, she didn't remember. [142] Ms Miles was then taken to her interview with police, in particular question 76. She agreed that she made an observation while at Dizzy's that A had probably drunk too much. [143] 4. In further cross-examination Ms Miles stated that when she was at Dizzy's in the company of the Plaintiff and A she hadn't drunk much, she was thinking clearly when dealing with A, and was able to realise that A was drunk and had too much to drink. [144] 5. Ms Miles stated that she did not remember whether there was another person present when she left Dizzy's with the Plaintiff and A. [145] Ms Miles stated that whilst she agreed that A had had alcohol and was influenced by alcohol, her idea of somebody being drunk doesn't necessarily mean that they are unable to make decisions. [146] She stated that A knew what she was doing. [147] It was put to her that she didn't know what A's ability was to make decisions when drunk, but she stated that by her actions she knew exactly what she was doing. [148] She stated that the observation she made of someone giving A a Long Island Iced Tea was from the next day, when she asked some of the people A was hanging out with on the night. She stated that she didn't see A getting drinks from anybody. [149] Leaving Dizzy's Night Club The Plaintiff 1. The Plaintiff stated that they went directly from the nightclub to his cabin with A and Ms Miles in front and Mr Bascur and the Plaintiff following. [150] He stated that he spoke to Mr Bascur and the two girls were talking to each other. He described them as being arm in arm in front. [151] The Plaintiff stated that the two girls were at the door before him and he used his swipe key to open the door and that they went inside. After this occurred, he stated that he followed but he closed the door so Mr Bascur could not enter. [152] 2. In cross-examination the Plaintiff was asked about the condition of A on the morning of 15 November 2016 at the time they left Dizzy's. He stated that she was drunk, having a good time, enjoying everybody's company, talkative and vibrant. [153] The Plaintiff stated that he wasn't certain of A's age, but that he knew that she was above 18 because the nightclubs were 18 and above. The Plaintiff stated that he didn't speak to her about her age and but he did speak to her before they left the nightclub when he asked her if she understood that they wanted to have a threesome with her as Ms Miles had asked her twice before him. [154] He then reiterated that to his observation, A was drunk and that they left the nightclub at about closing time. [155] 3. The Plaintiff was then asked whether he was concerned that A was drunk at the time he was having this conversation with her and she appeared to be much younger than him. He stated that he was not concerned. [156] 4. With regard to Mr Bascur he stated that he was under the impression that he was interested in A himself but he was not a part of the leaving party and he was simply following. [157] He stated that he made himself walk with them, that he wasn't invited and he had no use for an unknown male to join them. [158] He said that he told him this. [159] He stated that he had seen what Mr Bascur had said about the night in question and that he disagreed with him. [160] He stated that he accepted Mr Bascur's observations to A being drunk, but did not agree that she had consumed 14 Long Island Iced Teas. [161] Ms Miles 1. Ms Miles stated that she remembered leaving Dizzy's nightclub with A and the Plaintiff walking together towards the Plaintiff's room. She described that they were talking and laughing together. She stated that from A's actions and language she thought that she was affected by alcohol, however, she was able to walk, speak, interact and have a laugh with them. She stated that she had no reason to believe that A did not consent to returning with them for a threesome. [162] Attendance in Plaintiff's Cabin The Plaintiff 1. The Plaintiff described his room as having two single beds, a small amount of floor space and a very small ensuite, estimating dimensions of four metres long by three metres wide. [163] 2. Following entry, Mr Champion was in his bed but awoke. The Plaintiff said that he did not speak to him. He stated that A was asking him about his occupation and there was talking and kissing. [164] The Plaintiff stated that he thought that A was affected by alcohol. [165] This observation was based on the description by the Plaintiff that she was "very loud, dancing vibrantly, enjoying herself, having a lot of fun." He described her as "more relaxed that you would be without alcohol." [166] The Plaintiff had stated that she appeared to be walking fine. [167] He stated that A's speech was fine and a bit loud. He recalled having to tell both girls to be quieter as Mr Champion was asleep. [168] Thereafter he described himself, A and Ms Miles kissing touching and undressing each other. He then stated they took turns between each other having sex. [169] At one point Mr Champion left the room and stated "Not again", grabbing his blanket and pillow and stating that he was going out to a deck chair. [170] 3. After he left the room, the Plaintiff pushed the two single beds together to make a larger bed, proceeding to resume the sexual activity with the two girls. [171] The Plaintiff said they had sex for several hours which he later refined as more than hour, possibly two. [172] At some point he recalled that A stated, "I feel sick". He then helped her into the ensuite and she vomited into the toilet and had a shower. [173] Whilst that took place, the Plaintiff stated that at one point he began having sex with Ms Miles, but only after A was feeling better. [174] The Plaintiff stated that he helped A get into the shower and that he showered after her, but they were not in the shower together. After A completed the shower he described her as coming back to the bed and that when he came back from the shower A was on the bed with Ms Miles. [175] The Plaintiff stated that he made the observation that A and Ms Miles were awake. [176] The sexual activities thereafter continued, with each having turns in having sex with each other and at times all partaking. [177] At some point, the Plaintiff stated that he fell asleep with both A and Ms Miles in the bed. 4. In cross-examination the Plaintiff agreed that Mr Champion had complained about being disturbed the night before with Ms Miles and that it was his decision to leave. [178] Once Mr Champion left, he accepted that he took over his bed to make a double bed and proceeded to have sexual activity until A complained about being sick. [179] He stated that when A went into the bathroom and vomited it reminded him of the fact that she was drunk. [180] He was then asked about helping A into the shower and stated that both he and Ms Miles helped her. He stated that he thought that for a portion he was with A in the shower and then Ms Miles joined him afterwards. [181] The Plaintiff stated that A said "sorry" after she had vomited. [182] He then stated that after the shower she returned to the bed, and that Ms Miles joined him in the shower where they had sex again, and then went back to the bed. [183] During this time he stated that A was waiting on the bed for them to join her. [184] He conceded that there was more sexual activity with A after he had had the shower with Ms Miles. [185] 5. The Plaintiff was asked whether he had positive memory of all of these events happening in that fashion. He stated that it was very positive and everybody had a very enjoyable time. [186] He accepted that A would not have been having a good time while she was vomiting but she certainly enjoyed herself during all the other parts of the night. [187] He stated that she felt much better after she vomited. [188] He accepted that this all occurred at a time he himself was intoxicated. [189] 6. The Plaintiff at one point stated that he awoke as he heard the sound of the door closing, being when Mr Champion had returned. [190] At that point, A and Ms Miles were in the bed and Mr Champion slept on the floor having made a bed out of cushions. [191] 7. At another point the Plaintiff heard that the door again closed and observed that Ms Miles was still in the room but A was not there. [192] There was a third occasion when the Plaintiff stated that he was awoken by the sound of the door, and at that point he noticed that Ms Miles had left as well. [193] After Ms Miles had left he stated that he rolled into his bed completely and Mr Champion pulled his bed across and moved back into his bed. [194] 8. In cross-examination the Plaintiff was next taken to the history recorded by a Dr Halpin where it was asserted that he stated that neither he nor A "remembered what happened". [195] The Plaintiff stated that when he read that he was confused and not sure as to why Dr Halpin had written that. It was put to the Plaintiff that it was recorded that way because that was what he told him. However the Plaintiff rejected that proposition. [196] It was put to the Plaintiff that he didn't remember what happened in his cabin on the morning of 15 November 2016. The Plaintiff stated that all of his statements he believed to be true and denied he was misleading the Court. [197] As to what he meant by what he "believe[d] to be true", the Plaintiff stated that it was to the best of his recollection and that he was telling the truth in everything he had said. [198] 9. The Plaintiff was asked as to the material he had received in relation to the matter. He stated that a bundle was sent to him the week of the hearing, but he hadn't "been through the bundle." [199] When asked where the bundle was, he stated that he had an email with a very large file attached. [200] When asked whether he had gone through the bundle at all to look at particular documents he stated that he looked through some of the statements from some of the witnesses. He identified these as A, A's mother, Ms Miles and Mr Champion. The Plaintiff was then asked whether he had had a look at Ms Miles' electronic record of interview with police; he stated that he believed so. [201] It was put to the Plaintiff that he had studied the documents closely. He responded that he hadn't and had just scanned over it. [202] It was put to him that he had been using them to help with his memory of what happened on the night. He rejected that, stating that the only paperwork he had with him were his own personal notes. [203] It was put to him that he stated earlier than he had a look at Ms Miles' statement and her record of interview with the police. He stated that he had some time ago, but there were a lot of pages and that he was not a very strong reader. [204] He accepted that he knew that what Ms Miles said was really important. It was put to him that he read that material closely. He accepted that he had read the material, but that he hadn't read it multiple times. [205] Ms Miles 1. Ms Miles recalled Mr Champion was in the room when they arrived and they had woken him up. She recalled that he left at some stage. [206] Ms Miles then referred to two statements that she provided in relation to what happened in the room, being the statement given to the Ship's security dated 15 November 2016 [207] and an interview with NSW Police dated 20 November 2016, [208] both of which are discussed below (see [103] and [325]). 2. In cross-examination Ms Miles confirmed that initially in the room the Plaintiff had sex with A followed by sex with herself. She stated that she could not recall whether a condom was used. [209] Ms Miles' attention was then drawn to her interview with police where she said that the Plaintiff was using a condom. She stated that now she could not remember because it was four years ago but when compared to her statement at the time she honestly believed that condoms were used. [210] She stated that she didn't assist the Plaintiff putting the condom on. [211] She also stated that she didn't observe him removing the condom. [212] She didn't remember the Plaintiff changing condoms between having sex with A and having sex with her. [213] 3. In re-examination Ms Miles was asked as to the observations she had made that allowed her to form the view that A was aware of what she was doing. Ms Miles described that "by her actions, she knew exactly what she was doing" referring to A being able to communicate clearly with her and the Plaintiff. [214] Ms Miles stated that this communication started at Dizzy's and continued in the room. [215] She stated that walking arm and arm with A sounded like something she would do but she didn't remember doing it on this occasion. [216] 4. Ms Miles accepted that at some stage A was ill and vomited in the toilet. She stated that she followed her into the bathroom but didn't remember observing her vomiting in the toilet. She stated that she would have either stood there or stood around the corner a little bit. She stated that A did not appear to be in distress and did not think about calling for medical attention. [217] She stated that thereafter she and the Plaintiff put A in the shower to wash her off and she believed that she just went to bed and fell asleep. She did not recall further sexual activity between the Plaintiff and A thereafter. [218] She stated that on her observation, A remained the same way she was from when they went back to the room to when she fell asleep. [219] She stated that she woke up the following morning and realised that A had left. She woke up a second time shortly after and left herself. [220] She stated that the only observation she recalled from the time she left was that Mr Champion was back in the room. [221] She didn't recall whether or not Mr Champion was sleeping on the floor, nor did she recall seeing any of A's belongings in the room. [222] Mr Champion 1. Mr Champion provided a statement in which he largely relied on the contents of what he stated in his security incident statement of 15 November 2016 and his police statement on 6 January 2016 both of which are discussed below (see [110] and [335]). 2. In cross-examination he stated that on the evening of 14 November 2016, he was in the room for about 10-15 minutes, and just couldn't take it anymore and just left the room. He stated that he was quite annoyed and probably did say something in the heat of the moment. [223] He stated that when he left it wasn't pitch black and he could see where he was going and there would have been some lighting on. [224] As far as discussion was concerned, he wasn't sure who was laughing and who was giggling, but that they were all having conversations together. [225] He stated he made no observations as to whether anyone was affected by alcohol. [226] Security Investigation Mr Sreedharan 1. At 5:39am (local time) [227] on 15 November 2016, Mr Sreedharan stated that he received a call from a security officer in his team named Sandeep that a female guest had been found naked in an unrelated guest's room. [228] It is not in issue that the room in question was that occupied by Ms Gezina Strydom and that it was she that made the relevant call to ship security. Two security officers attended at first being Mr Shushant Kerkar and Ms Christine Callejo before notifying Mr Sarode. [229] Ms Callejo recorded in her security incident report that A told her at the time:- "I don't know what happened. All I know is that I'm dancing in Dizzy's and I am looking for a bathroom…I am with girls, I only know Teagan." [230] 1. Arrangements were then made to escort A to the on-board medical centre. 2. Mr Sreedharan immediately called the Staff Captain, Mr Panagopoulos, followed by the on-board medical centre to ensure that a doctor and/or nurse could assist when A arrived at the on-board medical centre. [231] 3. At 5:41am on 15 November 2016, Mr Sreedharan stated that he sent an email to the port agent at Port Villa, Vanuatu requesting that the incident be reported to local law enforcement. That email was titled "Crime Allegation to Report." [232] 4. Mr Sreedharan confirmed that Sandeep was the security officer in the team who reported to him that a female guest had been found naked in an unrelated guest room. He stated that that was all he was told at the time and thereafter at 5.41am he sent an email to the Port Authority Agent entitled "Crime Allegation to Report." [233] He acknowledged that at that time he was not aware that a crime had been committed. [234] In sending the email at 5.41am, two minutes after he had a conversation with Sandeep, he stated that he was not sure what had happened in terms of a crime or allegation. At that point he did not know anything as to what had happened in relation to A. [235] He accepted that in his mind he decided that some crime had occurred to explain why A was found there. [236] Referring the incident as having occurred at 2.05am, he stated that he obtained that time from the CCTV footage, however later conceded that he had not seen that footage at the time he sent the email. He conceded that he had no recollection as to where the time came from. [237] He acknowledged that the time of 2.05am was when A was still at Dizzy's nightclub. [238] He accepted that it was he who collected and collated the CCTV footage to identify the people involved. [239] 5. By 5.46am, A and her mother were in the medical centre. [240] Dr Clarey 1. Dr Clarey stated that he did not personally examine A when she attended. However, he would have received a handover note from Dr Neil Piwovar, the senior doctor on board the Ship, and would have reviewed the Medical Case Summary prior to him commencing his shift. [241] The history recorded in the notes was that A remembered:- …being in Dizzy's lounge with other people but does not remember leaving Dizzys lounge or anything else at all until she was knocking her on the door of her mother's cabin this morning. She states that she drank some alcohol last night that someone else bought for her but she didn't but [sic] alcohol and thinks she only had a few drinks. [242] 1. The notes further record: Comments: patient denies any vaginal bleeding today.she denies any pain or discomfort in her vaginal area. she denies any pain,discomfort or bleeding in her anal area. while speaking with the patient, her mother asked her if she felt any "squishy feeling" in her vagina the patient said no. [243] 1. By reference to the notes, it was apparent that an examination was conducted. [244] At one point, A was asked whether she would like a sexual assault examination. She asked her mother what she should do and then the nature of the examination was explained to her. A then stated that she would not like the examination as she felt fine and had no pain anywhere. [245] Dr Piwovar recorded that a urine drug screen test was performed, which was negative, but that A and her mother were advised that they could not perform tests for certain drugs, such as rohypnol. [246] 2. Mr Sreedharan thereafter assembled a team of people to assist him to fulfil the investigative process, putting the team together at or around 6:02am. He stated that he and the Staff Captain attended the on board medical centre, and apart from A's mother informing him that A was behaving differently, he did not specifically recall his conversation with A and A's mother in the medical centre, however witness statements were taken from both of them shortly afterwards. [247] A 1. A provided a security incident statement at 7.05am reporting:- I was at Dizzy's nightclub after eleven at night. I had a few drinks and can't really remember what happened. I wanted to go home back to the cabin, so I did. I had some help from a lady who lent my jacket which was hers and security was there to help me. Monday the 15th November 2016 I wasn't really with anyone I really knew that well, was more making new friends than talking to old. [248] 1. Later in that statement where asked "When did the incident begin and when did it end?" A responded by saying "sometime between 1 pm and 5am." However where asked "How did this incident happened? She responded "I really don't know." [249] 2. Mr Sreedharan acknowledged having received that statement, recording that A had a few drinks at Dizzy's nightclub and couldn't remembered what had happened, and that following collection of this information further inquiries had to be made of those people at Dizzy's to find out what had happened. [250] He stated that he couldn't recall whether he or his staff obtained any further statement from A about what happened on the evening. [251] He indicated that neither he nor his staff, as far as he was aware, had further discussions with A about what had happened at Dizzy's before she lost her memory. [252] He added that he wasn't sure about CCTV footage at the night club, but all the CCTV which they reviewed was uploaded to the incident management system. [253] He accepted that if no footage had been produced under subpoena in these proceedings, it could be assumed that no footage was accessed in relation to Dizzy's Night Club on the evening of the 14 November 2016, and the morning of 15 November 2016. [254] 3. In cross-examination Mr Sreedharan acknowledged receiving the statement by A to NSW police dated 22 November 2016 discussed below at [321]- [323]. He accepted that in that statement, A identified a number of people she was with on that evening. [255] He also accepted that A informed police that she was at one point on deck 12. [256] He accepted that this information was not obtained by him or his staff and that in order to investigate the matter it would have been important to speak to the people that A identified she had been spending time with at Dizzy's initially. [257] He acknowledged that it would have been important to talk to a person referred to as "Jessie", with whom A indicated she was with on deck 12, however, at that point he did not have that information. [258] He accepted that it would have been important to get a statement from the security officer, Sandeep. [259] He indicated that he was not certain if the statement taken from Sandeep was taken or whether or not it was uploaded. [260] 4. Mr Sreedharan acknowledged that he forwarded the material involving Ms Miles on the morning of 14 November 2016 to Global Security. [261] He was not sure whether or not this information was requested. He stated that he would inform Global Security anything related to the persons involved in that particular cruise in any incident they're involved. [262] He stated that he did not have access to the medical records and did not send them to Mr Warder. [263] Mr Sreedharan stated that from viewing the CCTV footage, he could not form a view of the mindset of A or anyone in particular at that time. In particular, he could not determine whether they were intoxicated or not. [264] Viewing A in the video with Ms Strydom, he stated that he could not determine whether or not they were walking in a normal fashion. [265] A's Mother 1. A's mother provided a security incident statement at 7.20am, reporting that she woke to security guards and a woman guest. She observed that A had a jacket and towel and was naked and was told there was an incident. She was then taken to the medical centre to see the doctor and talk to security to find out what happened. [266] Further in her statement she added that A's behaviour was "very unusual" and that she was "not acting drunk but drugged or vague." A's mother added that A was not aware if 5 drinks were a lot and she had no concept at the moment if it's good or bad, and that her judgment was poor. [267] 2. After receiving the two security incident reports Mr Sreedharan stated that he sent an email to a Mr Ira Warder at Global Security at 7.10am attaching the A-Pass details and written statements of A and her mother. [268] Thereafter at 8:20am, Mr Sreedharan and the Staff Captain made a call to Global Security to provide Mr Warder with a summary of the incident. [269] 3. At 8.35am Ms Miles was asked to wait in the gangway while going ashore to provide information about the incident. [270] 4. According to Mr Sreedharan, at 8.40am he sent an email to Mr Warder with an extract of the night report containing a brief description of Ms Miles' condition in the Plaintiff's room on 14 November 2016. This recorded that the Plaintiff had reported that his friend, Ms Miles, was shivering and breathing "fastly." [271] Ms Strydom 1. At 8.46am a security incident statement was taken from Ms Strydom. [272] 2. Ms Strydom stated that she woke up around 5am because someone had entered the stateroom where she and her husband were sleeping. She stated that the person used the toilet and proceeded towards them. She noticed that it was a young woman with no clothes on. She informed her that this was not her room and she gave her an overcoat to put on and wrapped a towel around her. She then stated that they proceeded to find A's room. She described A as calm but smelling of alcohol and was informed that her room was 9535. She stated that she proceeded to go with A to that room but no one opened. She proceeded to look for help and saw a phone by the lifts and dialled '0' and was told to wait there until security had turned up. [273] Ms Miles 1. Ms Miles believed that she was stopped by security from going to the shore excursion at around 8.00am. [274] 2. Ms Miles then prepared a security incident statement at 9.40am. 3. In her statement Ms Miles recorded:- We were drinking on Deck 14 and went back to my friends cabin. When I woke up the girl who was with us had left and my friends roommate was back. I fell asleep again and woke up at about 7:50am and went back to my room to get ready for today. We had sex the 3 of us. Intercourse and oral sex. he penitrated [sic] her [A]. She vomited in the toilet. No one forced her into anything that happened, she willing [sic] came with us and had intercourse. [275] 1. Further Ms Miles described A as being drunk at Dizzy's, that the incident occurred in the Plaintiff's room and the 3 of them had sex. [276] 2. In her evidentiary statement, Ms Miles stated that at first she wrote down what occurred, leaving out that they had sex as she was embarrassed about it and didn't realise how serious it was. She stated that the security guard asked whether anything else happened. At that stage she realised how serious it was and she told them that they had sex. She was thereafter allowed to leave. [277] 3. In cross-examination, Ms Miles stated that she assumed that there was a problem but she didn't know what the problem was as she was not told. [278] Ms Miles stated that she wrote down everything without going into a lot of detail, and then throughout the time she was sitting there she added to the end of it. She thought it was strange what security wanted from her and she assumed that something happened. She stated that she wrote up to the words "to get ready for today" and then she was continually asked "what else happened?" After this, she wrote down "we had sex" and subsequently wrote down that it was the "3 of us". [279] She stated that she was then asked what she meant by sex and she wrote "intercourse and oral sex". [280] After that, she stated that they still asked for more information. 4. Ms Miles stated that when she prepared her statement on 15 November 2016 for the Ship's security there were two guards who were speaking to her. [281] Ms Miles added that the security statement where she stated "she was drunk at Dizzy's" (she being a reference to A), she could not recall whether she wrote that initially or subsequently when she was prompted for further information by the security guards. [282] In respect of her response to question 8, [283] where she stated "Daniel, 6277. The three of us went together", she stated she couldn't remember exactly when she answered it [284] but didn't think it was completed the first time. She reiterated that her answer to question 9, being "3 of us had sex" was inserted the second time. [285] 5. At around 9:01am, Mr Sreedharan stated that at the direction of the Staff Captain, he and a security officer named Sandeep attended the Plaintiff's room and requested that he and Mr Champion accompany them to a conference room. They went to a conference room on Deck 1 and they told them that they were not allowed to leave the conference room whilst evidence was being collated. Mr Sreedharan recalled informing the Plaintiff and Mr Champion that there was an ongoing investigation and that nothing more could be disclosed for the time being. [286] Mr Champion 1. At 9.50am, [287] Mr Champion provided a security incident statement recording:- I went to bed @ around 11PM last night. I woke around 3AM to my room mate being loud with two other guests. I left with my pillow & blanket about 10 – 15 mins later to sleep on level 12 deck chairs. I returned @ around 5AM to the room and made a bed on the floor as my bed was occupied. About an hour later I woke up & checked and someone had left so I went back to bed and slept until security woke us up. [288] 1. In answer to specific questions as to his knowledge of the incident he stated that he did not know. [289] 2. By 10.00am, Mr Sreedharan stated that he had in his possession CCTV footage which had been collated and which showed the following:- 1. Four people consisting of Ms Miles, A, the Plaintiff and Mr Bascur walking from Dizzy's Jazz Club; 2. Two young females and a male, being A, Ms Miles and the Plaintiff, entering stateroom 6277 with Mr Bascur left outside; 3. A leaving the Plaintiff's room naked after a few hours of entering the room; 4. A, whilst naked, attempting to enter stateroom 6283 belonging to Ms Strydom; 5. A, now with a towel and jacket, and Ms Strydom walking towards stateroom 9535; and 6. A attempting to enter stateroom 9535. [290] 1. At 10.40am Mr Sreedharan forwarded the email he sent to Vanuatu authorities to the Noumea Port Agent requesting law enforcement to be present on the ship's arrival in Noumea "for investigation into a very Serious security incident." [291] Follow up emails were later sent to the Noumea Port Agent at 4:00pm and 9:08pm the same day. [292] 2. At 10.57am on 15 November 2016, Mr Sreedharan sent to Mr Warder the security incident statements of Ms Miles and Ms Strydom. [293] 3. Mr Sreedharan accepted that at 1.44pm both he and the Staff Captain spoke to the Plaintiff and Mr Champion and informed them they would not be allowed to go ashore on that day. He further accepted that at 2.25pm he and the Staff Captain arrived at the conference room and informed Mr Champion that he was permitted to leave, but the Plaintiff was to remain. [294] Mr Sreedharan stated that while he did not have recollection, he accepted that this was so, but that the decision was made either by the Captain or the Staff Captain. Accepting that there was no directive from Global Security at that point he stated that the decision made to keep the Plaintiff in the conference was by either the Staff Captain or the Captain. [295] 4. At 2.44pm, [296] Mr Warder sent an email to the Care Team copying Mr Sreedharan and the Staff Captain, advising that an 18 year female guest had been found naked in the room of an unrelated guest and did not recall what happened. In that email, Mr Warder stated that although there was no allegation made of an assault, the circumstances were concerning. [297] In cross-examination by reference to this email, Mr Sreedharan accepted that he was informed that A did not remember what happened but her mother felt that she may have been drugged and a drug screening was completed with negative results. He was not sure at that point whether there was an allegation from A of sexual assault. [298] 5. At 2:56pm, [299] Mr Warder sent an email to the Care Team copying Mr Sreedharan and the Staff Captain, stating that the incident would be categorised as a sexual assault – rape, based on A's inability to provide consent due to her being extremely intoxicated. Mr Warder stated in the email that law enforcement would be notified at the next port of call, being Noumea, following which the Plaintiff would be disembarked if not arrested. [300] 6. At 3:53pm on the same day, [301] Mr Sreedharan sent an email to Mr Warder attaching the witness statements of Mr Champion and advised that the Plaintiff declined to provide a statement. [302] Thereafter, the CCTV footage and the remaining witness statements were uploaded onto the Global Security Internal Management System (GSIMS) for Global Security. [303] Mr Panagopoulos 1. Mr Panagopoulos recorded that at about 5.39am on 15 November 2016 he received a call from Mr Sreedharan, informing him of what had occurred. Thereafter he informed the Captain of the incident and instructed the Chief Security Officer to investigate matter and collate relevant CCTV footage and statements from people. [304] As part of the investigation process, security officers and the Chief Security Officer were dispatched to request the Plaintiff and Mr Champion to come to a conference room for questioning as CCTV showed A exiting the Plaintiff's room naked. [305] 2. Mr Panagopoulos stated that throughout the day, several calls were made to Global Security to keep them informed of the Ship's actions, and he participated in some of these calls with the Chief Security Officer and the Captain. He acknowledged that the incident was reported to Mr Warder in accordance with Chapter 9 – Response to Allegations of Crimes, Reports of Missing Persons, and Serious Guest Conduct Policy Violations of the Security Manual (Chapter 9 of the Policy). [306] Thereafter there was a collating of witness statements of A, her mother, Ms Strydom, Ms Miles and Mr Champion. [307] Relevant CCTV footage was also collated. [308] The CCTV footage and witness statements were then uploaded onto the GSIMS for Global Security and provided to the Captain for him to review. [309] According to the procedures outlined in Chapter 9 of the Policy, Mr Panagopoulos stated that staff on-board the Ship are not to focus on verifying or proving a crime allegation's validity, but rather are to focus on providing for the safety and security of all people on the Ship, providing the survivor with appropriate medical care, preserving evidence, and cooperating with government incident response. [310] Mr Warder 1. According to his understanding, Mr Warder stated that he provided guidance to the vessel's Captain where there is a security incident on-board a vessel, however, he did not have the authority to direct the Captain as to what they must do. He stated that with respect to decisions made on-board a vessel, it is the Captain who has the ultimate authority, and who has the relevant authority to delegate decision-making functions to security employees of the Defendant. [311] 2. Mr Warder stated that the security team on-board a vessel and Global Security do not equate to law enforcement, but seek to preserve evidence and collate information that can be provided to the relevant law enforcement authorities where requested. [312] 3. According to his statement, at 7.25am on 15 November 2016 (local time on the Ship) he received a call from the Staff Captain and Chief Security Officer on-board the Ship, who informed him that a young and disorientated female guest had been found naked in another unrelated guest's room. He stated that the young female guest had no recollection of her recent movements or who she was with after departing Dizzy's nightclub in the early hours of 15 November 2016 (local time). He stated he was informed by the Staff Captain and Security Officer that they were in the process of collating CCTV footage and witness statements which would be uploaded to the GSIMS system for Mr Warder to review and consider. He described that the GSIMS system was to be used as a communication platform between Global Security and the officers on the Ship to report a security incident. [313] 4. Thereafter, at 8.10am on 15 November 2016 (local time), he received from the Chief Security Officer the A-Pass details and written statements of A and her mother. He believed that a call between him and the Ship at 9.20am (local time) was 20 minutes after the Plaintiff was asked to go from his room to a conference room and his room was sealed. [314] Thereafter, at 9.40am, he received an email from the Chief Security officer containing an extract of the night report containing a brief description of Ms Miles' condition in the Plaintiff's room on 14 November 2016. At 10.57am, he received the A-Pass details and written statements of Ms Miles and Ms Strydom. At 2.44pm, he sent an email to the Care Team. Mr Warder stated that the Care Team were a group of individuals that support guests, the crew, and various types of incidents where there is a security incident or medical needs that need to be attended to. He stated that the Care Team were based in Miami but that they also have counterparts on a ship. [315] That email read as follows:- Hello CareTeam- please be advised that an 18 yr old female Australia guest was found knocking nude on the door of unrelated elderly guests appearing disoriented. Onboard investigation revealed that she was at a bar and drinking and walked back to a cabin with two males and another female. She was in the cabin for a few hours before knocking on the door of the elderly guests. The female doesn't remember what happened, but her mom feels she may have been drugged. A PEK was initially offered, but declined by the 18 year old. A drug screening was completed with negative results. The 18 year old and her mom came back to medical and the 18 year old has now agreed to a PEK, which is in progress. At this time we do not have an allegation from the 18 year old, but the circumstances are naturally very concerning, so we wanted to let you know. The two males and other female have been identified and are being interviewed. I will keep you updated as this moves forward. [316] 1. At 2.56pm Mr Warder sent another email to the Care Team. That email read as follows:- Hi Jennifer- based on information obtained through the day, we will be categorizing this as a sexual assault- rape, based on the guests (survivor's) inability to consent due to being extremely intoxicated. We have given the survivor the support guide and she has been assisted by a CTA through the PEK and follow up. Law enforcement will be notified at the next POC, following which the male subject will be debarked if not arrested. [317] 1. At 3.53pm, he received A-Pass details and the written statement of Mr Champion. He was also informed that the Plaintiff had declined to provide a written statement. [318] Throughout the day, he stated that CCTV footage (referred to above at [109]) was uploaded onto GSIMS and he either reviewed it or it was summarised to him by security on-board the Ship. [319] 2. Mr Warder stated that given the serious condition that A was found in, as well as the information collated, it was his recommendation to keep the Plaintiff confined until local authorities could attend and advise the Ship what to do. His recommendation was communicated to the Staff Captain and Chief Security Officer over the telephone. He understood that it was the Captain's intention to keep the Plaintiff confined until he could be disembarked at the next port of call, being Noumea, either into the custody of police or to be repatriated to Australia. He stated that he agreed with this position. [320] He stated that it was not the role of the Defendant to determine whether or not a crime took place, but rather to focus on providing for the safety and security of all people on the Ship, providing the survivor with appropriate medical care, preserving evidence, and cooperating with government and relevant police agencies. [321] 3. Mr Warder then recorded that at 4.56pm on 16 November 2016, [322] he sent Mr Williams a handover note outlining the evidence and information available at the time. That handover note recorded:- EX- Sexual Assault Rape- Guest/Guest- An 18 year old female Australian guest entered the cabin of unrelated and unknown elderly guests in the am. She walked into the cabin, nude, used their restroom and then was walking towards the bed when the elderly female guest realize [sic] that the young guest was extremely intoxicated and disoriented. Extensive onboard investigation revealed the 18 year old female guest was drinking at Dizzy's bar with two 28 year old male guest, and another 18 year old female guest. CCTV shows all four entering the cabin, but the survivor appeared intoxicated and was being assisted into the cabin by the second female. One of the male guests leaves the cabin with a pillow and blanket. The survivor leaves the cabin a few hours later nude and walks into the unrelated guests cabin. The second female states that all three had sexual intercourse, and the survivor consented to same. The survivor stated that she only remembers going to the bar and nothing else. The survivor's mom maintains that she must have been drugged. The male subject refused to write a statement and initially refused to say anything at all, but later admitted that all three had consensual sex. The cabin was sealed, the survivor was offered medical and accepted a drug test, but initially refused the PEK. The survivor later requested the PEK which was done. Care Team, (Jennifer) was notified. A CTA was assigned to the survivor from the onset. The survivor guide was provided. CCTV and other requested items still are in progress. LEN today at Noumea. The subject will be debarked today if not arrested. The second female may also be debarked based on CCTV review. Due to the survivor's level of intoxication, this will be categorised as sexual assault rape due to the survivor's inability to consent… [323] 1. Mr Warder stated that as part of the Plaintiff's cruise ticket, he purchased a Deluxe Drinks package, entitling him to buy unlimited alcohol, as did Ms Miles. He stated that the system enabled the Defendant to determine how many drinks a passenger orders on any given occasion. He was also able to record the drinks ordered by A whilst on the Ship between 13 November 2016 to 15 November 2016. [324] 2. In cross-examination, Mr Warder conceded that as Senior Investigator he would give guidance for any type of security incident on board, including serious security incidents, but that there was a separation based on seriousness. He stated that the difference would not be one of being more directive but just being more involved or engaged. [325] He did not accept that being more engaged was to the point before a Captain took a particular step, Global Security would need to agree with it. [326] Mr Warder stated that the type of incident described in this case was a very serious incident, and the protocol required isolation until such time law enforcement could be notified and respond. [327] He rejected, however, the suggestion that pursuant to the policy, Global Security are the ones that have the final say whether someone is released from isolation or not. He stated that it is a joint decision based on the circumstances and ultimately it is up to the Master Captain as to what steps he takes as he is in charge of the vessel, the vessel safety and the security for everyone at that point. [328] So far as the determination to classify something as a sexual assault or a sexual assault – rape, he stated that that was a role of Global Security. [329] 3. Pursuant to the Policy, he stated that there was no report made to the United States FBI of sexual assault or of sexual assault – rape, as this particular incident had no US exposure. [330] He stated that whilst he could not answer whether it had been complied with, he was certain that it was reported to the flag state and to the local police, as well as the Bahamas Maritime Authority as the Ship was registered in the Bahamas. This particular reporting was undertaken by Global Security. [331] He stated that in these types of circumstances, he had to take into consideration the position of the Ship at the time of incident, the port where the voyage originates and the port where the voyage ends, as well the nationality of the persons involved. In this respect, the incident didn't fit within the matrix of it being reported to the FBI. [332] 4. Mr Warder's attention was then drawn to 9.1.4 of the Policy containing a note stating:- Note: Global Security will direct ship's response to serious security incidents. [333] 1. He stated that his role in his position was to give the Ship guidance and directives as to what steps to take if they hadn't yet taken them, as well as to ensure that the guest's needs are met, as well as all other aspects of incident response for that particular incident had been met. He did not agree that it was his role under the Policy to direct the captain as to what should occur in circumstances involving a serious security incident. [334] 2. Mr Warder's attention was then drawn to the email forwarded by the Chief Security Officer to Port Vila Port Authority to which he was cc'd (see [84]), [335] but stated that he could not recall receiving that email, noting that his first communication with the Ship was with a phone call. [336] He stated that this type of email would be something that would happen after communication and could not speak to the confusion within various emails and the time stamps. [337] 3. So far as the communication in relation to Ms Miles' condition in the Plaintiff's room on 14 November 2016 was concerned, he stated that to the best of his knowledge, during his conversation with the Staff Captain and the Chief Security Officer there was discussion of other situations involving the Plaintiff which they wanted to share with him and he believed that was shortly after the phone call. [338] He believed that was the only thing forwarded to him and he believed it was forwarded for his information as it related to one of the people involved in the current incident from the previous night. He also stated that it was reference material. [339] He did not recall exactly when during his interaction with the Ship that email came, but believed it was after the first phone call. He stated that he did not believe he received medical records relating to Ms Miles. [340] 4. In relation to this first email sent to the Care Team (see [124]), Mr Warder stated that the reference to "she was appearing disoriented" was based on information that he received from the Chief Security Officer, the Staff Captain, and the totality of the circumstances in that somebody was walking around nude and entered the wrong cabin, which in his assessment appeared disoriented. He stated that he didn't recall whether it was something that was specifically told to him by the security officers. [341] He subsequently added that the additional evidence of A smelling like alcohol would to his mind indicate that somebody was disoriented. [342] He stated that all three of these factors came together to support his assessment that she was disoriented. [343] He accepted that A was not that disoriented in that she did not know her room number and that she accompanied Ms Strydom to that room and knocked but no one answered. [344] In stating in the email that at that point there was no allegation, he accepted that that meant there had not been an allegation of sexual assault. [345] Mr Warder subsequently stated that once he is engaged in a serious security incident response he communicates consistently with his next in command, being Mr Dwight Morris. [346] 5. He stated that the additional information that had been acquired in the 12 minutes (leading to the email set out at [125]) was the statement of Ms Miles. He stated that the information provided by the Ship was able to be collated and reviewed by him to the circumstances where it was categorised as a "sexual assault – rape" on the basis that there was sexual intercourse and that A was not of the capacity to provide consent because of intoxication. [347] He stated that he could not recall when it was received but that it was possible that it was before sending the email at 2.44pm. [348] It was put to Mr Warder that in the email at 2.44pm where he described A as being "extremely intoxicated" that the evidence available to him at that time did not support that characterisation. He rejected this. [349] 6. It was then put to Mr Warder that in sending that email he was indicating a directive to the Ship as to what was going to happen in the circumstances of the case. He stated that was not the purpose of this email; rather it was to let the Care Team know for their information. [350] He stated that he was also communicating to the Staff Captain and Chief Security Officer as part of basic incident response procedures. As part of this Policy, every allegation needs to be reported to law enforcement at the next port of call. [351] He stated that this particular step was required by CBSSA, and that notifying law enforcement at the next port of call is a step that's taken, but he does not provide absolute authority to the Master of the Ship. [352] 7. Mr Warder was then asked whether he asked persons on-board the Ship to conduct inquiries in relation to the extent of alcohol consumed by A prior to attending the Plaintiff's room. He stated that he didn't recall whether he asked that during his communications with the Ship. [353] He stated that once A had completed her statement he believed that her mother was in communication with Ship's management on her behalf. He also stated that he believed the Care Team associate who was on board was also communicating with her in terms of trying to get a better understanding of what happened. [354] He described it as an evolving process, where medical support was being provided and having a care team associate support them if additional information came out that could be provided to the security officer and then become part of the investigation. [355] 8. In relation to the CCTV footage that was uploaded onto the GSIMS, he couldn't recall exactly how many were uploaded. [356] He did not recall whether he saw any footage of Deck 12. [357] It was put to him that the footage collectively did not support the view that A was intoxicated. He stated that the footage of A needing to be supported was part of the information that led him to believe that she was extremely intoxicated. [358] 9. In relation to the bar folios, he accepted that the purchases made in shops and bars were all charged to the A-Pass key. He stated that he was not familiar with the various venues on-board the Ship, but noted that the type of packages, being the Deluxe Package referred to some kind of beverage, and could refer to alcohol beverage service. He accepted, however, that he could not attest to whether any of the drinks purchased were alcoholic or non-alcoholic. [359] The Plaintiff and Mr Champion are taken to the Conference Room The Plaintiff 1. The Plaintiff and Mr Champion were late awoken by the sound of someone knocking on the door, which he described as "extremely loud." [360] The Plaintiff stated that he answered the door and observed that there were two "very serious looking" security guards who tried to look around him into the room. They asked him what had happened the previous night and that they were investigating an incident. [361] The Plaintiff responded "what incident". [362] The guards continued to repeat that there was an incident and that they were looking into it. [363] At that point the Plaintiff stated that he was naked, with a towel covering him. [364] After that, they told the Plaintiff that they wanted him to come with them. Mr Champion at that point was still in bed. [365] Thereafter, the Plaintiff asked if he could get dressed. He stated that the guards put their foot in front of the door to hold it ajar, and watched him as he put on a pair of shorts, but he wasn't allowed to collect anything else from the room. [366] At that time, Mr Champion was out of bed and was wearing clothes and was required to accompany the Plaintiff. [367] 2. The Plaintiff stated that the only conversation he had with the security guards before they left the room was about what was going on and why they had to leave. [368] The Plaintiff stated that he didn't recall Mr Champion being angry. [369] 3. The Plaintiff observed that the guards used a special set of keys and locked the door to his cabin securely. The Plaintiff stated that he was quite concerned as to what incident had caused this happened. [370] The Plaintiff described himself at that time as curious as to why the door was locked and was trying to think back to ascertain what happened the night before. [371] 4. In cross-examination the Plaintiff was asked whether at some point in time he formed a view that his cabin was being locked because someone thought it might be a crime scene. He stated that he didn't instantly, but the amount of security guards, the Captain, the time that he came to be detained in the conference room and the amount of people asking questions he started to consider that something had gone on. [372] 5. After they went into the conference room, the Plaintiff stated the guards remained with them. [373] At one point, the Plaintiff stated that multiple guards came in and interrogated him and took notes. He stated that he was asked, "Tell me about the incident last night. Tell me about what happened last night. Tell me where you were, what you were doing, what happened in the room." [374] The Plaintiff stated that he asked what incident they were referring to and why they were there. After some time, he stated that somebody told him that there was a girl found with little clothing and couldn't remember what had happened. [375] He later accepted that it was the Captain that told him this. [376] He described this as some hours after he had been in the conference room. [377] 6. The Plaintiff stated that at this point he was concerned for the girl and was unsure as to whether something had happened with another person. He stated that he was scared and confused and was worried that somebody had said that he had done something. [378] The thought of it relating to A and Ms Miles had crossed his mind, however. [379] 7. At one point, the Plaintiff stated that the Captain came in. [380] He described him introducing himself while in the company of another security guard. [381] The Plaintiff stated that the Captain told him a girl had been found with little clothing who didn't remember what had happened, that he was communicating with his people in Miami, and he couldn't advise as to any further information because there was an ongoing investigation. [382] The Plaintiff stated that he responded by asking on a number of occasions why they were being detained, whether they could go and how long they would be there, but he was not given an answer. [383] The Plaintiff stated that the Captain reiterated that there was an ongoing investigation and he was not authorised to give any information. [384] 8. The Plaintiff did not recall a person who identified himself as the Staff Captain talking to him and Mr Champion, stating that he could not recall the ranks or the names of the security officer that they had spoken to. [385] The Plaintiff stated that a lot of people came and left. [386] The Plaintiff did accept that the Staff Captain and the head of security did arrive at one point and told him that he wouldn't be allowed to go ashore to Mystery Island. [387] He did not recall them using the words that he would need to wait until the investigation had finished. [388] 9. He described the conference room they were in as quite a large room which could fit approximately 400 people and that he and Mr Champion were sometimes distanced. [389] 10. Whilst he was in the conference room with Mr Champion and the security guards, the Plaintiff didn't think that he was specifically asked what had happened in the morning in his cabin. [390] For quite some time he claimed they didn't specifically say that he was the target of any investigation and they simply said that there was an investigation into an incident. He stated that in his mind he thought of all kinds of possibilities and recognised a guy from the nightclub. He stated that he and Mr Champion spoke about the guy who passed the conference room, about how many different security guards were coming in and about asking for the Captain to come down and clear up what was going on. [391] 11. He stated that he recalled being asked if he could explain the incident that had happened and he remembered being asked what he had been doing the previous night leading up to him being detained. [392] He conceded that there was a mention of the girls and that there was a girl found wearing little clothing who didn't remember anything. [393] He believed it was the Captain who said this several hours into the time he and Mr Champion had spent in the conference room. [394] In cross-examination, he stated that he believed that it was the Captain who said those words, but did not remember the security guards saying it. [395] When it was put to him that they might have said it to him, he said that he couldn't remember. [396] He conceded that he was alone when the Captain came in and mentioned that there was an investigation and asked whether he could provide a statement in relation to his activities the night prior and in the morning leading up to this, and informing him that a girl had been found with little clothing and couldn't remember. [397] The Plaintiff conceded that he told the Captain that he wouldn't give a statement. [398] He said he declined as he felt he was not being told what was going on and felt it was within his rights. [399] 12. The Plaintiff was asked whether he worked out that the reference to one of the girls being found with little clothing and not remembering the incident was A. He stated that he wasn't certain, but that he saw a gentleman that he had recognised from the nightclub walk past the conference room with security guards and Mr Champion and he thought that maybe that person was in trouble for something and they were there for questions about something he had done. He accepted, however, that he soon put that thought out of his mind when he was being asked what had happened in his room. [400] He accepted that the thought that was increasing in his mind was that he was the person subject of the investigation. [401] He stated that it "grew and grew" and then he would have other reasons to think that it was not to do with him. He described it as a fluctuation and that it was extremely emotional. [402] He accepted that at that point that the effects of intoxication were diminishing and he was dehydrated and emotional. [403] 13. The Plaintiff stated that while in the conference room, the air-conditioning was extremely cold and in light of the scant clothing, he asked and received a blanket. [404] He and Mr Champion were also provided with food and water. [405] 14. The Plaintiff was asked whether he recalled Mr Champion being questioned and whether Mr Champion had filled out a questionnaire at 9.50am that morning. He stated that he was not certain about that and that he thought they had separated them during that time. 15. The Plaintiff did, however, recall Mr Champion speaking to the security guards. He stated that he had read Mr Champion's statement but not recently and that he could not recall what Mr Champion wrote in his statement. [406] He did recall that at some point the same gentlemen arrived and told Mr Champion that he could leave the conference room, but did not recall overhearing any other conversation. [407] After the Plaintiff and Mr Champion were separated they did not have any further contact. [408] The Plaintiff did recall that for some hours after Mr Champion had left that he was the only guest in the conference room. [409] Overall, he stated that they were kept in the conference room for some eight to ten hours. [410] He described himself at that point as being extremely anxious, scared and terrified. [411] He was scared that it was a very serious matter. [412] 16. The Plaintiff stated thereafter that he understood that he was going to be given a new room but could not remember being told whilst in the conference room that he was going to be put into isolation. [413] He stated that it became clear to him that he was being isolated when he arrived in that room, was told that he wasn't allowed to leave and the guard would be remaining at the door. He stated that this is when he went into shock and he protested about not being able to walk around the Ship. [414] However, the Plaintiff maintained that he could not remember being told in the conference room that he was going into isolation. [415] It was put to the Plaintiff that at the time he was being escorted to the new room by guards, with one guard having his hand resting on his head, he knew that he was going into isolation. The Plaintiff stated that there were a lot of emotions going on in his head, he was in a panic and upset and he hadn't concluded that he was going to be locked in a room for another six days without communication to anyone that he knew. [416] 17. It was then put to the Plaintiff that he knew he was going into isolation when he was surrounded by the security guards but at that time he was not very clear on his thinking processes. The Plaintiff conceded that nothing was clear at that time. [417] It was then put to the Plaintiff that his memory of what happened in the conference room at the time that he left to go into isolation was very "fuzzy." He accepted that his memory was limited. [418] It was next put to the Plaintiff that he was told when he was in the conference room that he was going to go into isolation and was told why he was going into isolation being that there was an allegation that he had sex with a woman who had no memory of the event. He stated that he did not recall that. [419] 18. In cross-examination it was put to the Plaintiff that he told Dr Allnutt at the consultation on 23 September 2019 that during the period of time while he was in the conference room that, at least for part of that time, he was still partially intoxicated from the previous night. He stated that he didn't remember saying that to Dr Allnutt but that he did remember feeling the effects of alcohol in the conference room. He stated that he was in the conference room at 8.00am and he had left the nightclub with A and Ms Miles closer to 2.00am. He accepted that in these circumstances it's the case that he told Dr Allnutt that he was partially intoxicated in the conference room he must have been intoxicated at about 2 o'clock that morning. [420] It was then put to the Plaintiff that in his evidence in chief he didn't say anything about being intoxicated on the night of 14 November and on the morning of 15 November. He acknowledged that this was so. [421] It was put to him that he was trying to give the impression that he was perfectly capable of making reasonable decisions. He stated that he responded to the questions that were asked. [422] When pressed, however, he accepted that this was so. [423] When pressed that the impression that he wanted to give was a false one, he disagreed. [424] He subsequently added that it was a matter of how one would interpret intoxicated and drunk to mean, and that he believed that there were several levels of intoxication, being slightly impaired to excessively impaired. [425] Mr Champion 1. Mr Champion recalled that after returning to the room and after A and Ms Miles had left, he was awoken by security guards upon which the Plaintiff answered the door. When the door was opened they put their foot against the door so it couldn't be closed. The security guards stated that they needed to speak to them and gave them time to put on some clothes. After the door was shut it was "padlocked". [426] At that point Mr Champion stated that he had no idea what they wanted to talk about. [427] They were then taken to a conference room where they were separated on separate sides about ten metres away from each other and they weren't talking to each other. At that point Mr Champion stated that he knew he hadn't done anything wrong and asked the Plaintiff what had happened, who stated that he wasn't sure either. [428] He stated that he wasn't advised why they were leaving the room, how long they'd be leaving the room for and no suggestion was made in relation to their clothing. He stated that he was in sleep wear and that he put his shorts on and maybe a pair of slippers. [429] 2. Mr Champion stated that he realised that the matter was serious by the fact that security was banging on his door and padlocking the door, which to him screamed severity. [430] He stated whilst he was in the security room he didn't sit there with a blank mind and many possibilities ran through his head as to what occurred but he could recall that it was pretty up in the air. [431] He stated that he did not recall quizzing the Plaintiff while they were in the conference room, although he knew that he himself had done nothing wrong. [432] Mr Champion recalled that he was told at some point in time that he couldn't go on an offshore short excursion to Mystery Island and that he was upset at security at how the situation was being handled and not having contact with the Plaintiff. He stated that the fact that he missed out on the Island was not detrimental to his holiday. [433] He didn't recall the circumstances in which he was advised that he wouldn't be going but he thought he was advised after he and the Plaintiff had been separated. [434] 3. In completing his statement referred to at [110] Mr Champion stated in cross-examination that he did not recall any of the conversations he had with security before he made his statement. He surmised that he had been advised at some point that what happened the previous night was the issue that was being investigated and that would be why he would be writing about the night before. [435] 4. He stated that later in the trip he spoke to Ms Miles, and when he questioned what had happened she stated, "We all just had sex. I didn't think anything of it. I don't know why it's such a big deal." Mr Champion said that he didn't see the Plaintiff for the remainder of the trip until the Ship docked in Sydney. [436] 5. Mr Champion stated that at one point he was told that he could go, that a new room was being organised for him and he couldn't go back to his old room. He couldn't recall what he was told when he asked why he couldn't go back to his old room. He stated that it was possible that it had been secured as a potential crime scene but he couldn't recall the wording used. [437] Subsequent arrangements were made for him to retrieve his medication from his old room. [438] When he was placed in the other room he only had the pair of shorts on, and that after two to three days he was given a $200 allowance to spend at the souvenir store to buy some clothing. [439] Mr Panagopoulos 1. Mr Panagopoulos stated that he attended the conference room either by himself or with the Chief Security Officer to provide updates to the Plaintiff and Mr Champion throughout the day of 15 November 2016. At around 2.25pm he attended the conference room with the Chief Security Officer to inform Mr Champion that he could leave and that they were organising him a new room for the remainder of the trip. He stated that they requested the Plaintiff to prepare a statement of his activities from late the previous night (14 November 2016) to early that morning (15 November 2016), to which the Plaintiff refused. [440] 2. Thereafter, at around 8.57pm, he had a meeting with A's mother about the condition of A, and recalled that A's mother informed him the medical team had spent several hours in the morning with A. A's mother informed Mr Panagopoulos that she was concerned that her daughter had been drugged as she noted she had been acting strangely when she first saw her in the morning. [441] 3. Mr Panagopoulos stated that he did not advise A's mother when he spoke to her, (having thought that A might have been drugged), that A had been subjected to a drug screening with negative results. [442] He stated that he could not remember when he was made aware the contents of Mr Warder's email received at 2.44pm on 15 November 2016 (see [123]). [443] He stated that he could not recall when and if he told the Captain the advice had been received from Mr Warder, indicating that the drug screening was completed with negative results. [444] He stated that the question of whether A consented to sexual activity that had happened on board the ship was not only about drugs, it was also about the alcohol. [445] He stated that the matters he took into account in terms of the alcohol consumed was from the statements that he received. He agreed however, that A's mother gave a statement which said that A "was not acting drunk". [446] He stated that he did not look at the alcohol that had been consumed by A when she was at Dizzy's nightclub, adding that there was no real activity on her account. [447] He stated that he took into consideration other statements which mentioned that A was drinking and that she had been offered drinks by somebody else, or accessed by other people in the room and not directly from her account. [448] He stated that in forming the view that A could not have consented to the sexual activity with the Plaintiff and Ms Miles was possibly because A was drunk. [449] In that respect, he accepted that the only information and evidence he had to rely upon to form that view were the statements in relation to her drinking at Dizzy's. [450] He stated that he did not make any inquiries as to whether A had her mother's approval to drink, as they were cruising in Australia and were following Australian law, allowing a person over the age of 18 to drink. [451] When it was put to him that they were not cruising in Australia, he stated that they were cruising in the region and since the starting of the cruise was in Australia, the laws in regard to that would then follow them for the remainder of the trip. [452] 4. Mr Panagopoulos stated that every guest on-board a ship of the Defendant is required to follow the Guest Conduct Policy, which referred to the Guest Ticket Booklet and can be found in every guest room in the Guest Services Directory. [453] 5. In cross-examination, Mr Panagopoulos stated that he was aware that some CCTV footage had been provided to NSW Police from Deck 12 on the evening of 14 November 2016 and the early morning of 15 November 2016. [454] He stated that when he viewed that footage from Deck 12, he did not see A's face but it appeared that she was recognisable from her clothing. [455] He stated that he did refer to that footage in [10] of his statement. He later stated that he did refer to four people leaving the Dizzy Nightclub. When it was put to him that Deck 12 was a different place to Dizzy's, he stated that he could not remember. [456] 6. Mr Panagopoulos stated that the manner in which they deal with security incidents on board, whether they are true or they are false, is to treat them as though they were true. [457] He stated that the incident met the definition of sexual assault – rape in the Policy at that stage. [458] He stated that he was not comfortable with the Plaintiff being confined for the duration of the trip but rather until the Ship reached the next port, at which staged he would be disembarked. [459] He stated that it was unfortunate that they had to carry the Plaintiff all the way to Sydney as he was not allowed to disembark. [460] He stated that no decision was made to disembark or confine Ms Miles because at that stage there was nothing abnormal. [461] He stated that Ms Miles' statement did confirm sexual activity between A and the Plaintiff that was consensual, as well as sexual intercourse with A and Ms Miles. [462] When it was put to Mr Panagopoulos that A couldn't consent to having sex with the Plaintiff but could have sex with Ms Miles, he did not provide a direct answer. [463] When it was put to him that his approach to each of them was inconsistent, he stated:- I would disagree with that because what..(not transcribable)..does after all it was the fact that she did something that couldn't remember. Of course, that was not brought to us directly by her but from - from her friend, Teaghan [sic]. [464] Decision to Isolate on 15 November 2016 Captain Sullivan 1. According to his statement, Captain Sullivan stated that on the morning of 15 November 2016 he received a call from the Staff Captain, who informed him that there was an incident where a young female was found disorientated and naked in an unrelated guest's room. He was further informed that the female was found with no recollection as to where she had been and with whom she had been with over the previous few hours, and that the guest had a suspicion that something of a sexual nature had occurred. He further stated that the Staff Captain informed him that he and the Chief Security Officer had provided an update to Global Security. He became aware that the alleged sexual assault had occurred in the Plaintiff's room which became a crime scene. [465] In order to preserve evidence, Captain Sullivan stated that it would have been usual practice to escort the occupants of the room to another place so that the room could be sealed in accordance with Chapter 9 of the Policy. He stated that the authority was delegated from himself to the Staff Captain who would inform him as to what actions would have been taken. [466] 2. Throughout the day, Captain Sullivan stated that he was provided with regular updates from the Staff Captain and the Chief Security Officer of their investigations. He stated that at all relevant times he was aware that the Chief Security Officer and security were obtaining witness statements and collating CCTV footage and evidence and uploading those materials onto the Ship's computer system, GSIMS, to communicate with Global Security. [467] 3. He stated that the witness statements obtained were read and discussed with the Staff Captain and confirmed:- 1. Sexual activity had occurred; 2. The young woman was drunk; and 3. Serious doubt attached to whether she had consented to any sexual activity. [468] 1. Captain Sullivan stated that in accordance with Chapter 9 of the Policy, the Plaintiff was requested to provide a witness statement which he refused. Subsequently, at Captain Sullivan's direction, the Plaintiff was confined in accordance with the Defendant's policy as his continuing ability to use the facilities of the Ship freely, to his mind, represented a risk to the safety of the young woman and other persons involved in the incident. [469] 2. Captain Sullivan stated that as Captain, he would only deal with serious misconduct on board and an allegation of sexual assault was a serious incident, and he would need to take measures to keep the suspect away from the survivor and take the first opportunity to inform law enforcement and hand the matter over to them. [470] 3. At or about 5.27pm on 15 November 2016, Captain Sullivan was informed by the Staff Captain that the Plaintiff had been involuntarily confined. On being so informed, he stated that he intended that the Plaintiff would be disembarked as soon as possible, which was in Noumea, either into the custody of the New Caledonian police or for the purpose of being repatriated to Australia. [471] He stated that the process of telling the Plaintiff that he was going to be confined would have involved a statement as to why he was being confined by the Staff Captain. [472] 4. In cross-examination Captain Sullivan stated that at no point did he speak with the Plaintiff and indicate to him that he'd be permitted to leave isolation if he had no contact with the A's family. [473] He stated that he offered the Plaintiff the opportunity to make a statement but he refused to do so. [474] He accepted that he was not present when security officers made the request for a statement. [475] Similarly he accepted that he had never had a conversation with the Plaintiff about not communicating with Mr Champion or Ms Miles. [476] He stated that it would either be the Staff Captain or the Chief Security Officer who would have told the Plaintiff the reason for his confinement. [477] 5. Captain Sullivan stated that he spoke to the Staff Captain on the morning of 15 November 2016. [478] He conceded that at that time he was reliant on the Staff Captain in terms of information that was supplied to him. He stated that after the Ship arrived in port he would be discussing it with the Staff Captain in further detail and then would check the information he had provided. [479] He acknowledged that in stating that the guest had a suspicion that something of a sexual nature had occurred, he understood that to mean the Staff Captain had told him that the guest who found A had a suspicion that something of a sexual nature had occurred. [480] In stating that, he relied on the witness statements collected by the security team. [481] With reference to paragraph 9 of his own statement, Captain Sullivan stated that these were the security incident statements of Ms Miles and Ms Strydom, as well as that as A's mother. [482] 6. He added that in saying that A was disoriented in her interactions with Ms Strydom, he relied on the fact that she had entered her state room and the fact that she was naked. [483] He accepted that that was an assumption he had made. [484] He stated that it was highly unlikely that A would have entered the cabin because she needed to go to the toilet and added that it would be unusual for someone to enter another person's cabin to use the toilet. [485] He stated that when one leaves a stateroom they exited through a corridor and one would see that it was not a bathroom. [486] He stated that Ms Strydom's statement indicated that she found A after she had used the toilet and was calm and smelled of alcohol. [487] He indicated that while the words in Ms Strydom's statement did not explicitly suggest disorientation, the smelling of alcohol indicated that A was under the influence or that she had consumed alcohol the previous evening. [488] He stated that he wasn't aware of A's blood alcohol reading being 0.015. [489] He stated that the test would have been taken at a specific time, not the time that A had appeared in Ms Strydom's cabin. [490] He accepted that A had told Ms Strydom her room number, which was in fact her room number. [491] He stated that while she knew her room number, she did not go to the correct room as she was disoriented by going into the wrong state room. [492] He accepted that what the Staff Captain told him was that A had been found naked in another guest's room and had no recollection of where she had been since leaving Dizzy's Nightclub at around 2am. [493] He stated that he was sure disorientation was part of the conversation. [494] He stated that he still believed that if someone showed up in another person's room naked they would be disoriented. [495] 7. Captain Sullivan accepted that he reviewed the CCTV footage, and in one piece of footage it looked as though A was being led along by the other young lady with a gentlemen following behind. [496] It was put to him that in another piece of CCTV footage, it depicted A moving quickly on one side of a hallway to another and that there was nothing about that footage to suggest that she was in any way disoriented. He disagreed, and stated that it seemed as though she was seeking refuge. [497] He accepted that it could have been that she was moving quickly to try and find a door that was open because she needed to go to the bathroom. [498] He stated that there was also footage that A was being assisted by Ms Strydom holding her and helping her along the way. [499] When it was put to him that the footage showed that A was quite calm as she was walking along with Ms Strydom, he stated that it was difficult to determine the state of mind, but accepted that she was not running or anything, although she did look like she'd been assisted by Ms Strydom. [500] He accepted that it was possible that Ms Strydom and A appeared to be conversing. [501] He stated that in the CCTV footage showing Ms Strydom leaving A in order to phone security, it was difficult to determine whether she was disoriented, although she could very well have been disoriented and standing in that position waiting for Ms Strydom to return. [502] He accepted that A appeared to be waiting patiently until Ms Strydom returned. [503] 8. Captain Sullivan further accepted that Ms Strydom's statement did not suggest there had been any sexual assault or sexual activity. [504] He further acknowledged that the only evidence indicating A was drunk was Ms Strydom stating that she smelt alcohol. [505] He further accepted that there was nothing in Ms Strydom's statement to draw the conclusion that serious doubt attached to whether A had consented to any sexual activity. [506] He conceded that there was nothing in Ms Strydom's statement which contained the information he was provided with that the female was found with no recollection as to what had occurred and to whom she had been with over the previous few hours. [507] He could not recall whether he had been advised of this by the Staff Captain. [508] He accepted that someone could have communicated that to him at a later stage. [509] 9. Captain Sullivan stated that he was unaware that within two minutes of the Staff Captain being informed by a security officer that a female guest had been found naked in an unrelated guest room, that he sent an email to Port Vila, Ira Warder, and the staff captain with the heading "Crime allegation to report". [510] Captain Sullivan accepted, by reference to paragraph 6 of his statement, that he had been informed that A had no recollection of where she had been since leaving Dizzy's Club at around 2am. [511] 10. Captain Sullivan's attention was next drawn to A's statement, in which she recorded an answer to the question "In what location did the incident occur?" as "Later near my cabin". He accepted that neither the Plaintiff's cabin nor Ms Strydom's cabin were near A's. [512] He stated that he was not aware if he asked the Staff Captain to ask for further information from A, but did understand that A went ashore in Noumea to press charges. [513] 11. Captain Sullivan accepted that the decision to isolate a person on a ship was not one that is made lightly. [514] He accepted that he would be concerned to ensure that there was evidence through statements, CCTV footage and the like to indicate that a crime had occurred before he would isolate someone such as the Plaintiff. [515] He stated that it appeared as though A had been sexually assaulted as she had requested to be examined by a medical doctor for sexual assault. [516] He added that as A had been drinking there may be some doubt as to whether or not she consented to the sexual activity. [517] Captain Sullivan acknowledged that when A was offered, she initially refused to take the sexual assault test, but was brought back to the medical centre with her mother where she agreed to submit to the test. [518] He nevertheless maintained that based on the fact that A agreed to undertake the test certainly pointed in the direction that she was alleging sexual assault. [519] 12. Captain Sullivan was next taken to the contents of the statement provided by A to police on 22 November 2016. He stated that disclosures made in relation to that statement referable to her activities, attending Dizzy's nightclub and thereafter on Deck 12 were not mentioned by A in her statement on the Ship. [520] He accepted that no one on the ship had spoken to A about getting into that detail when conducting the investigation. [521] He stated that the statement indicated that she was drunk, as A had stated that she didn't remember leaving Dizzy's but did remember going onto Deck 12. [522] Further that there are several things in her statement indicating that she may have been intoxicated. [523] He stated that he had not viewed the CCTV footage in relation to Deck 12 and he was not aware as to whether that footage was provided to police or whether it showed A had never been on Deck 12. [524] 13. Captain Sullivan accepted that Ms Miles' statement indicated that the only sexual activity that was between the three of them was consensual. He noted that it also stated that A had vomited in the toilet which could be an indication that she was drunk or that she some other illness. [525] He added that what took place was sex and whether or not it was consensual was questionable considering that A did not recall it and ended up being outside of the state room obviously in a hurry to get out leaving her clothes behind. [526] It was put to him that the suggestion of sexual assault came from one of the security staff rather than any witness. He rejected this, stating that the CCTV footage showed A leaving a state room into a corridor naked and then trying to find another place to go which was highly unusual, and it could lead them to believe that she did not consent to the sexual activity. [527] 14. Captain Sullivan accepted that Chapter 9 of the Policy, although it was dated 14 November 2016, was the Chapter that he applied when making decisions on-board the Ship when the Plaintiff was present. He stated that whatever the revision was at the moment of the incident is what he would be referring to. [528] He accepted that he reported the sexual assault to Global Security as well as local law enforcement. [529] He stated that the matter was reported to the Vanuatu but there were no law enforcement personnel on Mystery Island and accordingly the matter was taken up in the next port of call, being Noumea, New Caledonia who failed to respond. [530] He added that Global Security's function was to report it to a higher legal authority but he was not sure whether they did so, but his instructions were to report it to the local law enforcement of the ports that they were going to. [531] 15. In reference to the policy, [532] he stated that it was not for him to determine whether a person was guilty or not guilty and that it would be up to a court. He stated that all he could do is try to protect the people involved and preserve the evidence. [533] He stated that he formed the view that the Plaintiff was a suspect and it was for that reason that he detained him. [534] He accepted that he took no steps to confine Ms Miles according to the admissions in her statement. [535] He stated that it was not up to him to determine guilt but he did believe that the Plaintiff was potentially a threat to A's family while they continued to investigate what had happened. [536] He stated that Ms Miles did not appear to be a threat as the Plaintiff was the one that organised everybody to go together and appeared to be the ringleader as they went to his cabin. [537] He accepted that the piece of information he relied on to determine the Plaintiff was a ringleader was the fact that they went to his cabin. [538] He accepted that there was nothing in Ms Miles statement to suggest that the Plaintiff was a ringleader. [539] Nevertheless, he disagreed with the suggestion that it was unreasonable for him to confine the Plaintiff in the manner that he did on 15 November 2016. [540] He stated that neither Ms Miles nor Mr Champion were suspects as far as he was concerned. [541] 16. In forming the view that A was drunk, he conceded that he relied upon the statement of Ms Miles, as well as the statement from Mr Bascur. He also relied on the fact that she was found naked in someone else's cabin and that Ms Strydom stated she could smell alcohol. [542] He stated that there were statements from bar servers that saw A on the evening of 14 November 2016, and that if she had purchased four drinks that would be a significant amount, depending on the individual, their bodyweight and the nature of the drinks they were having. [543] He accepted, however, that he didn't have that information in forming the conclusion that A was drunk. [544] He accepted that the statement of A's mother simply indicated that A was not acting drunk, and did not say she was not drunk. [545] He stated that her blood alcohol reading was taken much later. [546] He stated that he didn't see the actual testing results in relation to drugs. [547] He accepted that he relied upon those who tested for drugs to report back to him and that none were found in A's blood. [548] It was suggested to him that in light of the statements that he had, the result of the blood test and the observations of the CCTV footage, it was not open to him to be satisfied at a reasonable level that A did not know what she was doing when she went in to the Plaintiff's cabin. He responded that it appeared that she was being led to the Plaintiff's cabin with Ms Miles and the Plaintiff and there was a statement to say that she was drunk. Further, he stated that according to the statement of Mr Bascur, A was being led to the cabin as she was drunk. [549] Mr Sreedharan 1. Mr Sreedharan stated that during the day there were face to face discussions between the Captain, Staff Captain and himself where the Captain reviewed the evidence collated and made the decision to confine the Plaintiff. He stated that he informed the Plaintiff of the Captain's decision to confine him until the Ship had arrived in the port of Noumea where the local police could then investigate and decide whether or not to charge him. [550] In cross-examination however Mr Sreedharan stated that the Staff Captain could make the decision to isolate the Plaintiff but he would need to inform the Captain as well. [551] He was "not really sure," who made the actual decision. [552] 2. Mr Sreedharan acknowledged that it was he who informed the Plaintiff of the Captain's decision to confine him until the vessel arrived in the port of Noumea. [553] He stated he could not recall a time or date that that conversation occurred. [554] When asked whether he told the Plaintiff that he was under suspicion of sexual assault he stated that he was not sure what was communicated. [555] He stated that he may have told him that law enforcement or some people from the consulate would come on board. [556] However, he reiterated that so far as he was aware neither he nor his staff informed the Plaintiff that he was a suspect in relation to a potential charge of sexual assault. [557] 3. In his last communication with the port authority in Noumea sent at 9.08pm seeking law enforcement to come on board, Mr Sreedharan confirmed that the Plaintiff had been placed in isolation with a security staff outside the isolation room. [558] Plaintiff Isolated The Plaintiff 1. The Plaintiff accepted that at around 5pm, he was taken by some security guards to another guest room which was vacant, and stated that this was emptied of all the loose items and loose furniture. The Plaintiff was advised that he was to remain in the room, that the guard would be at the door and he was not to leave. [559] There were three to four guards escorting the Plaintiff. [560] The Plaintiff stated that one security guard had his hand on his back to hold his head down as if protecting him as we went through guest areas. [561] He stated that they passed several people going into the lift at a close proximity, but there were many other guests and staff members who were further away. [562] 2. The Plaintiff described the new cabin as slightly smaller than his original cabin, being a double room as opposed to two singles. [563] The Plaintiff stated that there was some fixed furniture which was secured in place such as a television, but there was no telephone. [564] The Plaintiff described himself at that stage as being panicky, with a high heart rate, confusion and fear, as he was concerned he was being imprisoned in the room. [565] One of the guards stayed at the door at all times, and the door was ajar with a wedge so he could be observed so as to not harm himself. This resulted in the door banging consistently as the Ship rocked. [566] At some stage, a doctor came into the room and took a blood sample and he was offered STI medication. The doctor did not inform the Plaintiff as to what the sample was for. [567] The Plaintiff stated that he remained in the room for what he thought was between three or four days. [568] 3. According to the involuntary isolation records produced by the Defendant the Plaintiff was escorted at 5.15pm to his new accommodation and isolation was noted as commencing at 5.25pm on 15 November 2016 and concluding at 4.45pm on 20 November 2016. [569] 4. In cross-examination, the Plaintiff did not recall the time he went into isolation, [570] despite having earlier stating it was about 5pm. He did recall not responding to any requests made by any of the persons guarding him. He accepted that for a period of time he was just sitting on a bed, stating that he was in shock. [571] He recalled watching television many times during the room, and that they had offered him access to watch movies and assured him that he would not be charged, although he ultimately was. [572] He was allowed to order from the room service card only. [573] The Plaintiff stated that he spent the majority of the time in bed as there wasn't anywhere else to be as it was a small room without windows. [574] 5. The Plaintiff was then taken to his evidence where he had stated he used protection in the sexual activity with A and Ms Miles on 15 November 2016. He accepted that the form of protection was condoms. [575] He accepted that if he didn't use condoms that would be potentially dangerous and it would have not been sensible, but it would be ultimately a decision for the people having the sexual intercourse. [576] 6. The Plaintiff accepted that he saw and dealt with a doctor while he was in isolation though he could not remember his name being Dr Clarey. [577] He stated that the doctor wasn't allowed to give advice and could only offer what the policy of the Ship was. [578] He accepted that he had a memory of a doctor talking to him in relation to HIV, hepatitis B and sexually transmitted diseases. [579] He accepted that the doctor offered medications in relation to those potential conditions and he accepted them. [580] He stated that the Ship's doctor was only allowed to prescribe a certain amount of medication, and if he wished to continue, he would need to seek a GP to get the remainder of that medication. [581] The Plaintiff stated that he wasn't aware that after discussions with the doctor that there was concern for his welfare. [582] He accepted that he saw the doctor on the first night in isolation. [583] He did not remember the doctor asking him any questions about his physical and mental health. [584] He further did not recall telling a nurse that he had, from May 2016 suffered, an adjustment disorder with mixed anxiety and depressed mood. [585] He was then asked whether in the five months before the cruise he was diagnosed with some mental health issues, including a depressed mood. He stated that he could not remember. [586] 7. It was next put to the Plaintiff that on the 16 November 2016, being the day the Ship reached Noumea, discussions were had with the doctor about the incident involving Ms Miles and A. He stated that he thought he did have this discussion, but that he was in a pretty emotional state on that day, feeling that he would be taken to the island and couldn't recall that discussion specifically. [587] It was suggested to him that he had a conversation with Dr Clarey where he told him he had had sexual intercourse without barrier protection with two female guests on board the vessel. He stated that he couldn't remember saying that. [588] He stated that he could recall that the medications were discussed in the first consultation, being 15 November 2016, but he couldn't recall that he said on either occasion that he had sexual intercourse without barrier protection with two female guests on board the vessel. Specifically, he stated that the words "barrier protection" were not something that he had used before. [589] He did, however, recall telling Dr Clarey that he'd had sexual intercourse with two guests on board the vessel. [590] The Plaintiff stated that he did take some condoms on the boat and that he'd be surprised if the forensic team didn't find condoms or condom packages. He stated that he had not asked anyone to make any enquiries on his behalf on that issue. [591] He accepted that the nature of the sexual activity would have required him to be taking condoms off and putting new condoms on with some degree of regularity. [592] He stated that he remembered putting on condoms more than once. [593] 8. In cross-examination the Plaintiff acknowledged that he first became aware that A ended up in the medical centre when the doctor came to see him after he had spoken with security and asked if the girls were okay and the doctor told him he couldn't talk about it. When asked why he asked if the girls were okay, he stated that if there was an incident and he didn't know what happened that he was concerned for other people and whether the girls were okay in all senses. [594] Dr Clarey 1. On 15 November 2016 at or around 8.32pm, Dr Clarey examined the Plaintiff of his vital signs and mental state. During this consultation, Dr Clarey noted that the Plaintiff appeared withdrawn and he could not ascertain whether this was distrust or his personality. During this consultation, he asked the Plaintiff whether he had engaged in any sexual activity and whether he had used a condom. This, he said, was necessary in order to determine the risk category a patient is in and to change the nature of the medical counselling provided in accordance with sexual health protocols. He stated that the Plaintiff told him that he engaged in sexual activity without a condom with two female guests. He thereafter informed the Plaintiff of the consequences and medical options available to him and was aware that at all times there was a choice as to whether or not to take the medication recommended to him. With his permission, Dr Clary administered medication to the Plaintiff and advised him that the Ship only stocked for the first 14 of a 28 day course. He informed him to seek appropriate follow-up with a general practitioner. [595] Interaction Between A's mother and Ms Miles Ms Miles 1. At some stage on the night of 15 November 2016, Ms Miles stated that she was approached by A's mother who wanted to speak to her about the incident. She stated that they sat on the deck and that she told A's mother everything that happened. [596] 2. Ms Miles stated that she was told the following day by a security guard not to speak about the incident and it was at this point that she found out there was an allegation of rape. She stated that she interacted with A's mother again the following day in a hallway and complained to her that she was not allowed to get off the Ship, her alcohol package had been taken away from her, her friend was locked in a room and was not allowed out and his roommate had no clothes all because A and her mother were "making stuff up." A's mother replied, "it's because your friend drugged and raped my daughter." Ms Miles stated that this was not true as she was there the whole time and that A had consented to what had happened. She told A's mother to leave her alone as security had told her not to discuss the case with anyone. [597] 3. In cross-examination, Ms Miles stated that she couldn't remember telling A's mother about A being drunk, having too much to drink or that A vomited. [598] She recalled that the discussion with A's mother was an angry discussion. [599] She stated that she had spoken to security probably almost every day to find out what was going on and was aware she wasn't going to get let off, and that New South Wales Police were going to come and escort her off. [600] She stated she was told that when they were stopped at Noumea that law enforcement were going to come on and talk to her about it, but that never happened. [601] 4. For the remainder of the cruise, Ms Miles stated that her drink package was removed and she was not allowed to get off the cruise at any other island before she returned to Sydney, but was otherwise allowed to access all areas on the Ship and was not moved from her room. [602] Upon her arrival to Sydney she was interviewed by NSW Police, as earlier indicated. A's Mother 1. A's Mother subsequently told police that on the evening of the 15 November 2016 that she went looking for Ms Miles and found her on level 12. She reported the account given by Ms Miles of what had occurred in the Plaintiff's cabin. That account broadly accorded with what Ms Miles had earlier recounted but added that she thought that A wanted to be with the Plaintiff and that Ms Miles was trying to "hook them up." A's mother stated that when she asked how A ended up at the room Ms Miles stated that she "just came back". A's mother stated that she was told that both she and A had sex with the Plaintiff, A vomited at some stage, they all fell asleep and then A had gone and the Plaintiff's roommate had returned. [603] Dr Clarey 1. Late on 15 and early on 16 November 2016, Dr Clarey recorded that A attended with her mother and consented to undertake the sexual assault kit. The test involved taking DNA swabs in relevant areas. The swabs were then to be sealed and handed over to law enforcement. [604] Dr Clarey noted that A's mother had a conversation with A which he overheard whilst he was undertaking administrative components of the SAFE module. Dr Clarey subsequently passed this information on to Mr Sreedharan stating in an email:- During this consolation [A's mother] was conversing with her daughter [A] about a discussion she had with another involved female Tegan Miles The details she then shared with her daughter in front of me but not directed at me, were aspects of the incident from Tegan's perspective. [A's mother] stated to A that she had been chatting with Tegan and had been informed of the incident from Tegan's perspective. [A's mother] stated to A that she had been chatting with Tegan and had been informed of the cabin number and several details from Tegan Miles regarding the incident and Tegan's previous involvement with the male guest in question (Daniel Rawlings). My understanding is that Tegan is a witness in this case. [605] Further Investigations 15 and 16 November 2020 1. On 15 and 16 November 2016 further security incident statements were taken from a number of staff on duty at Dizzy's on the occasion in question as well as Mr Bascur and Ms Houda following the Plaintiff being advised of the decision to confine him. Mr Stacey Brown 1. Mr Stacey Brown was the lead bartender relevantly on duty at Dizzy's. He provided a security incident statement at 5.14pm on 15 November 2016 stating that he observed a female guest ordering drinks for the bar counter but had not seen the guest with other people involved in the situation. [606] Mr Dennis Subaste 1. Mr Denis Subaste, senior bar server, provided a security incident statement at 5.25pm on 15 November 2016 stating that he noticed A and she was different from another night. He stated she didn't order from the bar but she was strange in the way she danced and walked. [607] Mr Pirtheesh Ethyarajah 1. Mr Pirtheesh Ethyarajah, bar server, provided as security incident statement at 5.50pm on 15 November 2016 stating that he saw the Plaintiff getting drinks from the bar and heading to the dancefloor with a group of people. [608] Mr Alexander Cabigao 1. Mr Alexander Cabigao, senior bar server, provided a security incident statement at 6.02 pm on 15 November 2016 noting that he saw A at Dizzy's in the company of friends dancing but she did not drink or order at the bar. [609] Mr Achmad Kamil 1. Mr Achmad Kamil, senior bar server, provided a security incident statement at 7.19pm on 15 November 2016 but made no relevant observations other than that he observed "Daniel" to be drinking and dancing. [610] Mr Bascur 1. Mr Bascur provided a security incident statement at 11.43am on 16 November 2016. Relevantly, he stated that he was at Dizzy's nightclub where he met a group of people, and they drank and danced for a while. He noticed that A was drunk and proceeded to walk over to Ms Miles who was sitting with the Plaintiff who proceeded to say that A was drunk, and that they started the walk to Ms Miles' cabin on deck 6. 2. In his security incident statement Mr Bascur stated that he went with the others make sure A was okay and after leaving her there he took the lift back to Dizzy's nightclub. The party then ended and he went back to his cabin. [611] Ms Aya Honda 1. The roommate of Ms Miles, Ms Houda provided a security incident statement at 12.15pm on 16 November 2016 indicating that she was in her cabin all night and was not aware what happened until she was told about it by her friend the next day. [612] Arrival in Noumea 1. It is not in issue that the Ship arrived in Noumea at or around 8.00am on 16 November 2016 and was scheduled to depart at 6pm that day. [613] Captain Sullivan 1. At around 9.21am on 16 November 2016, together with the Staff Captain and the Chief of Security, Captain Sullivan said that a call was made to Global Security to advise that the local authorities in Noumea were refusing to attend the Ship and assist with the investigation of the incident. [614] Captain Sullivan said that he then informed A and her mother to let them know the position. [615] 2. At or around 11.20am on 16 November 2016, Captain Sullivan stated that two Australian Consulate Officers, being Mr Allen and Ms Rose Wete came on-board the Ship and met with A and her mother, and later met the Plaintiff. At that point, he stated that no one from the Defendant was involved in those meetings. [616] 3. After that meeting, Captain Sullivan stated that he was informed by either the Staff Captain or the Chief Security Officer that A wanted to lay charges of sexual assault against the Plaintiff. [617] At about 1:45pm, he stated that he understood that A and her mother went ashore to report the incident to police. [618] 4. During the course of the day, he stated that A and her mother contacted the Australian consulate and that the Ship allowed two consulate officers to board the Ship. Following contact with the Australian consulate A and her mother disembarked the ship and attended on Noumea Police, around 2pm expressing a wish to press charges. [619] He stated that he also afforded the Plaintiff an opportunity to speak to Consulate staff. [620] The Plaintiff 1. Before the Ship arrived in Noumea, the Plaintiff stated that the Captain informed him that the Noumea authorities were to come aboard and speak with him. They were delayed, and he insisted to speak with the Captain on what was occurring as he was fearful that he was going to be passed onto the Noumea authorities. [621] The Plaintiff stated that he was waiting for an extended period, longer than they had explained, and that when he spoke to the Captain, he wasn't sure if and when they were coming or how long they would take. He stated that he asked multiple times and each time he was advised he wasn't sure. [622] 2. Whilst in Noumea, the Plaintiff stated that he was visited by Mr Peter Allen from the Australian Consulate. [623] He stated that Mr Allen informed him he was there to inform him of his rights and to ensure he was being looked after. He was told by Mr Allen that he could not pass any information but he could communicate with his family should the Plaintiff ask him to. Specifically, he was told he could not pass on any information to do with anything on-board the Ship or what had happened. Mr Allen asked him if he was getting to see the doctor, and that Mr Allen would be available via phone ongoing if he was to stay on the Ship much longer, although the phones didn't work very well in open waters. The Plaintiff stated that in the circumstances he did not make contact with him. [624] 3. The Plaintiff stated that he asked Mr Allen to contact his grandmother to tell her that there had been an incident and that she is not to worry as he was not physically hurt, but he didn't recall the specific message he passed on. [625] He accepted that he gave the phone number of his grandmother to Mr Allen but he didn't recall asking Mr Allen to inform his grandmother that he needed help. He stated that he did not remember what he asked him to pass on, and only recalled wanting her to know that he was not hurt physically but there was a situation. [626] 4. So far as the investigation was concerned, he stated that Mr Allen did not provide any information to him. He had, however, been told by the Captain that he had been trying to get him off of the Ship and that if the Noumea authorities came on board to speak with him, he may be taken off of the Ship and given to the Noumea authorities. No further information was provided. [627] In the end, the Plaintiff stated that the Noumea authorities did not come to speak to him in his room. [628] The Plaintiff stated that at that point the allegations were never presented to him specifically and it was more of an assumption. [629] 5. The Plaintiff stated that after it was apparent that Noumea police were not going to come on to the boat to speak to him, he met with Captain Sullivan and insisted on further information as to what was happening as they'd been docked all day and he had not been spoken to by the police and his anxiety was building. [630] He stated that he thought the Captain told him that would remain in isolation on the return trip to Australia. [631] He could not recall being told why. [632] He stated that he was told at one point on the return to Sydney that Australian police were engaged on the matter. [633] At that stage he was afraid but was also a bit reassured by the fact that that local police speaking his language would be involved but was still afraid as to if there were really allegations against him and what they were, and what exactly they thought or assumed that he had done. [634] He stated that he was aware that he was going to be greeted on board the Ship upon its return to Sydney by local police officers the day before arriving in Sydney. [635] 6. The Plaintiff recalled that when he was in isolation by 16 November 2016, he was writing things down but didn't remember writing a specific statement, rather was writing notes of the way he was being treated. [636] At first the Plaintiff stated that he could not recall indicating to persons on the Ship that he was writing a statement. [637] He accepted that he was aware that whilst he was in isolation that a log was being kept. [638] Despite earlier stating that he did not recall indicating to persons on the Ship that he was writing a statement, he acknowledged asking a guard on 16 November 2016 that he wished to write a statement and was given some papers to do so. [639] He stated that he did not recall on the afternoon of the 16 November 2016 writing a statement but remembered saying to the guard on that afternoon of the 16 November 2016, that he hadn't finished his statement and that he would continue writing it until he was released. [640] 7. He accepted that the notes he was taking were going to be provided to his lawyer and detailed his treatment which would finish once he was given his freedom, so there was no point in giving it to anybody else. [641] The Plaintiff stated that he told the security guards that he was writing a statement in an effort to gain conversation with the Captain and further, to get more information as to what the situation was and what was going to happen. He conceded that the statement did not refer to the events in the cabin, [642] just his treatment in custody. [643] The Plaintiff stated that he destroyed those notes when he left the Ship by throwing them in the bin. He stated he never gave them to a lawyer as at that time he had not decided that he was going to follow up with legal proceedings. [644] 8. The Plaintiff accepted that when offered food at lunchtime on the 16 November 2016 he declined as his appetite was suppressed due to the shock and the emotions that he was going through. [645] He didn't remember telling this to Dr Clarey. [646] Consulate Records 1. At 10.22am on 16 November 2016 an email was sent by a Mr Dominique Gervolino, Policy Officer from Australian Consulate in Noumea, to other Consular Officers and employees at the Department of Foreign Affairs and Trade (DFAT) stating:- French police officer Calvet contacted us this morning to advise of an alleged sexual assault on board the cruise in international waters near Vanuatu on the Explorer of the Seas (Bahamas flag). Calvet advised that samples have been taken by the board from the alleged victim and that the alleged suspect has been isolated, as well as the room in which the incident took place. French Police advised that they have no jurisdiction over international waters, nor take samples or arrest a suspect for incidents occurring outside of their land/sea jurisdiction. They advised they are looking into their regulations and will also contact the cruise captain to check on applicable legislation. [647] 1. At 10.45am Mr Peter Allen, Consul together with a Ms Rose Wete boarded the Ship and spoke with both the Captain and its staff, A and her mother and the Plaintiff. Mr Allen records that Mr Panagopoulos requested the Port Agent to arrange a meeting with local law enforcement which occurred at around 2pm. Noted as being in attendance to offer support to A were the Port Agent, A's mother and Post staff. [648] 2. Recorded in Mr Allen's notes were that Captain Prigent, the Deputy Chief of Urban Safety for the New Caledonia Police, convened a meeting in which he stated that he advised that he did not see the logic in continuing the matter in New Caledonia when the incident occurred outside of French waters and both the complainant and the alleged perpetrator were Australian citizens. The notes then proceed to state:- [Redacted] mother seemed less reluctant to pursue with New Caledonian police but sought post urgent advice from Police in Australia, including on whether the evidence collected on the ship would be accepted by Australian Police. Noting that the ship was due to depart, [redacted] decided to proceed with a statement but only submit to blood test, urine sample and review of external bruising. [649] 1. Thereafter at 3.18pm, Mr Paul Wilson from the consulate sent an email to Ms Tracey Wunder, Manager Consular and Operations Section (Asia and the Pacific) for DFAT stating:- Since these exchanges, [redacted]' mother has asked whether she and her daughter could be put in direct touch with police in Australia, particularly to clarify whether medical evidence obtained by the ship's doctor would be accepted on arrival in Australia. … We are grateful for your efforts through CPL to obtain AGD advice on jurisdiction issues. Given the most recent request of the family, we ask whether a conversation with Australian police (whether AFP or NSW Police) could be facilitated. [650] 1. A report of the incident was provided to Noumea police in which A stated that she was a victim of rape when on the Ship on 15 November 2016 while the Ship was crossing Vanuatu to New Caledonia. The report relevantly records:- I did not have dinner on that night, with my friends we went to the night club bar on deck 14, ---- …. There were many students on board; we just finished our high school year, --- --- During the night, I drank three or four glasses of Vodka Red Bull, nothing else, --- --- At the beginning I was with young people whose names I gave you, but I was not any closer to either one of them, --- --- I went to on to the dance floor and I do not remember anything, --- Later, when I came to, I was on deck 12 with two persons, who helped me to walk, --- --- After that, I had a blackout again, I woke up, I was in the bathroom, and someone was trying to untie my shoes, --- --- This is all what I remember and I remember an old lady helped me, --- I think that I found myself naked and the lady lent me clothes, --- [651] 1. Later in the report it records A stating, in answer to a police question, that her mother told her that security checked the cameras and noticed that one person insisted on her having one drink rather than the other but she could not tell the Police if it was a woman or a man. She also reported that she believed she had been drugged as this is the first time it happened to her. [652] 2. Following the report a forensic medical examination was obtained at the request of Noumea police. [653] 3. At 3.31pm consular records show that Ms Wunder emailed Ms Natalie Daalder and others, including a Mr Wilson, stating:- …Note that [redacted]' mother has now asked whether she and her daughter could be put in direct touch with police in Australia. In addition to the jurisdiction question, we would appreciate AGD urgent advice on the question of Australian police contact. [654] 1. At around 4.00 pm Mr Allen visited the Plaintiff. His notes record:- 2. After focusing on the alleged victim (refer reftel), Allen returned to meet with Mr Rawlings at around 16:00hrs. The ship's captain, Mr Rick Sullivan, confirmed at this point that French Immigration (Police aux Frontières) would not allow Mr Rawlings to disembark for repatriation. Allen met with Mr Rawlings in his "isolation room" (a windowless cabin, approximately 7m x 3.5m with tv and bathroom and a security guard posted outside), where he had been since 15 November. Mr Rawlings was wearing the same clothes he was wearing on the morning 15 November and had few other personal possession with him. He was clearly agitated. Mr Rawlings noted that he had not received a clear indication on why he had been detained in the room and objected that he had no fresh air nor sunlight and was not able to smoke. He confirmed that he is able to access food and water and seen the ship's doctor, although his request for Valium had been denied. Mr Rawlings advised that he had not been able to make phone calls, although he didn't have anyone he wanted to call. Post discussed privacy, offered to contact family or friends in Australia and sought consent. Mr Rawlings was happy for post to talk to people that might be able help him, but did not provide formal consent. 3. Allen again met with the ship's captain, Sullivan, to discuss the conditions of Mr Rawlings' ongoing detention. Sullivan advised that Mr Rawlings was likely to be detained until arrival into Sydney on Sunday, 20 November and would not be able to leave the room, even for a cigarette. Noting concern for Mr Rawlings and that he was considered innocent until proven otherwise, Sullivan suggested that the private room was better for Mr Rawlings than detention in the ship's brig. Sullivan undertook to ensure Mr Rawlings would be cared for, including access to phone and (again) offering clothing from the gift shop. At Allen's request, Sullivan agreed that the ship's Chief Security Officer (Sreedharan) would call Allen's mobile on a daily basis to connect Allen to Mr Rawlings by phone. [655] 1. At 4.56pm and 4.58pm Ms Shaanti Sekhon, Assistant Director at DFAT, corresponded with Detective Sergeant Joseph Zeller (DS Zeller), the Watchfloor Supervisor of the Australian Federal Police (AFP) Coordination Centre forwarding an incident report and correspondence from the Consulate. [656] 2. At 5.01pm Ms Wunder forwarded an email to Mr Allen and Mr Wilson and others at DFAT enclosing advice received on the jurisdictional issue from Mr Nathan Kensey from the Attorney General's Department. That advice stated that on a preliminary view, the incident falls within jurisdiction under s 6(2)(a) of the Crimes at Sea Act 2000 (Cth) (the 2000 Act) although pursuant to s 4, a prosecution cannot proceed without the consent of the Attorney General, who must take into account the views of any other State which has a recognised basis in international law from which to exercise jurisdiction. In this instance the preliminary view was that both Bahamas (as the flag state) and France (as the first port of call after the alleged incident) would have a recognised basis. [657] 3. At 5.17 pm Ms Sekhon emailed Mr Allen, Mr Wunder and others at DFAT to advise:- AFP (Joseph Zeller) have advised that the NSW Water Police will be waiting when the ship docks. He has also advised that any medical reports of the Royal Caribbean will be accepted. I believe he or another AFP member has been in contact with the Royal Caribbean. The contact in the AFP is Joseph, his phone number is [redacted]. If he is not available, ask to speak to the watch floor supervisor/sergeant. [658] 1. At 5.31pm Ms Sekhon emailed Ms Wunder stating:- Have just spoken again to AFP. They are fine with providing the following information: • Phone number for watch office provided previously • That we have spoken to the AFP, who have subsequently been in contact with the Security Manager of the Royal Caribbean • The Royal Caribbean has procedures in place to alert local law enforcement of these sorts of matters • They will alert NSW Water Police • NSW Water Police will likely want to speak with her when the ship docks [659] 1. The Consular records reveal that before leaving the station, contact was made with DS Zeller who confirmed that NSW police would meet the Ship on arrival and would be able to accept the evidence from the Ship. [660] 2. At 7.12pm DS Zeller emailed Ms Wunder stating:- I received a call from [redacted] about 6pm and discussed the matter with her. [redacted] was satisfied that NSW Police would be taking carriage of the matter upon the ship's arrival in Sydney on 20 November. [661] Captain Sullivan 1. Captain Sullivan stated that at around 4.10pm, he instructed the Staff Captain to call the Port Agent in Noumea to reiterate that the Ship was still requesting law enforcement authorities to come on board and investigate the matter. [662] There is evidence that this occurred at 4.17pm. [663] 2. At around 5.45pm, which was within 15 minutes of the scheduled departure from Noumea, Captain Sullivan recalled waiting on the gangway to meet A and her mother who had not yet returned, as well as local police authorities. [664] 3. At around 6.16pm, he stated that A and her mother returned to the Ship accompanied by three New Caledonian police officers. Captain Sullivan stated that the police officers informed him that because the incident occurred in international waters it was outside their jurisdiction to investigate and they were refusing to allow the Plaintiff to disembark so that he could be repatriated back to Australia. He stated that he requested that the police officers stay on board to investigate until the next port being Isle of Pines on 17 November 2016, however, they refused. [665] 4. Captain Sullivan stated that he felt that he was unable to protect the well-being of A, who was alleging sexual assault through her report to New Caledonian police and who had required medical attention on the Ship, and to preserve the alleged crime scene and any future police investigation, by disembarking the Plaintiff. Accordingly, he determined to continue the Plaintiff's detention until the Ship returned to Sydney. [666] 5. Captain Sullivan accepted that on 16 November 2016, his security officers on-board were continuing to conduct an investigation in relation to the incident. [667] In stating that he found himself unable to protect the wellbeing of A, he said this was in circumstances where she was making a serious allegation against the Plaintiff, and made a formal complaint with the New Caledonian authorities. He accepted that he was not aware of the substance of the complaint. [668] He accepted that he didn't take any steps at that point to isolate or disembark Ms Miles. The decision in relation to the Plaintiff was based on the fact that he was responsible for the allegations that were being made by A. [669] 6. At 6.26am on 17 November 2016, Captain Sullivan stated that he received an email from Mr Williams from the Global Security Department of the Defendant, who was charged with providing guidance on security matters. [670] That email is the one reproduced at [257]. Mr Williams 1. Mr Williams had a similar understanding of his role to that of Mr Warder. [671] 2. He made it clear that the Ship and Global Security did not have the authority to investigate alleged crimes nor make concluded judgments against an accused. [672] 3. On 16 November 2016, he acknowledged being provided with a handover note prepared by Mr Warder, which detailed the security incident which occurred during his 24 hour shift (referred to at [128]). [673] He indicated that according to the handover note and the entries made on the GSIMS, the following had occurred prior to his shift:- 1. On 15 November 2016 (Local Time), a female guest was found naked in the cabin on an unrelated guest's room being intoxicated and disoriented, who was later identified as A; 2. CCTV footage showed A entering room 6277, together with another female and male, being Ms Miles and the Plaintiff respectively; 3. Ms Miles asserted that she, A and the Plaintiff participated in sexual activity on 15 November 2016; 4. A had asserted that she did not recall any memory of the sexual activity; 5. In accordance with the Guest Conduct Policy and Involuntary Confinement Policy, the Plaintiff was confined from 5.25pm on 15 November 2016 (Local Time); and 6. It was the Captain's intention that the Plaintiff be disembarked in Noumea when the Ship arrived, if he was not taken into custody by local authorities. 1. Mr Williams stated that at or around 3.00pm on 16 November 2016 he recalled having a telephone conversation with the Captain, Staff Captain and Chief Security Officer where the ongoing refusal of the New Caledonian police to assist in investigating the incident was discussed. He recalled the Captain had delayed the sailing of the Ship to allow the New Caledonian police to come on-board. Mr Williams stated that given the seriousness of the allegation, it was the responsibility of those on board the Ship to contact the local authorities to come on board to investigate and direct the Ship. He understood that the local police came on board but refused to take any action. [674] Dr Clarey 1. At some point on 16 November 2016 while on duty, A attended the medical centre and consented to undertake a sexual assault kit. This was taken with a view to secure evidence. Dr Clarey stated that on 17 November 2016, A attended the medical centre with her mother while he was on duty after suffering vomiting episodes. He stated that he examined A's vital signs and was advised that they were sitting within normal parameters. [675] There were no further interactions with either A or her mother with Dr Clarey after A's examination on 17 November 2016. Advice to Release the Plaintiff Pending Arrival into Sydney Mr Sreedharan 1. At 7.23pm on 16 November 2016, presumably when en route to the Isle of Pines, Mr Sreedharan wrote to the port agent Mr Andrew Kaesch in Sydney stating:- Further to our telephonic conversation. The incident was reported through port agent in Mystery island ,Vanuatu and Noumea, New Caledonia on 16 Nov 2016. Till now no any investigation has been conducted on board by any law enforcement authorities. • Alleged suspect is isolated in an inside stateroom and a security staff placed outside the stateroom. • However In Noumea two Australian Consulate Officers came onboard and talked to both alleged suspect and the alleged survivor. Once again on behalf of the Master of the vessel we are requesting the assistance of Law enforcement authorities to come on board and conduct and investigation with the arrival in Sydney. [676] 1. At around 6:26am on 17 November 2016, Mr Sreedharan received an email from senior investigator, Mr Williams of Global Security, who recommended that the Ship release the Plaintiff given the amount of time he had spent in confinement. The text of that email read as follows:- Greetings SECO Prasad and the EX Security Team and Staff. I wanted to address the issue of the suspect's isolation and offer our guidance as to the ship setting up a plan for the suspect/guest. The ship will complete LEN notification in Sydney, Australia on 11/20, ship's time. The suspect/guest in this case will be in isolation under guard for an excessive amount of time. Due to the circumstances surrounding this case, my guidance would be to release the suspect/guest from isolation and prior to this, set up a meeting with the suspect/guest and the ship's Executive Staff. During the meeting the suspect could be advised that he is being released from isolation and he is not to have any contact with the survivor, her mother or any other subjects that are traveling with the survivor or may be related to her. The prohibited contact should be in person, telephonic,text, by email or any other electronic communication devices. Also, please explain to the suspect that he cannot have anyone contact the survivor, her family or traveling group via a third party. He is being released because of the excessive time that would be required to isolate him under guard. We are not a Law Enforcement Agency but we do have the authority to keep him isolated, under guard if he becomes a threat to the safety and security of the ship. In other words, if the suspect violates any of the terms the ship sets forth or becomes involved in any other incidents aboard the shop that are criminal or administrative in nature. My guidance would also be to cut off his alcohol consumption for the remainder of the cruise. Please make sure they are aware that LEN in Sydney, Australia will board to conduct an investigation and interviews on 11/20, ship's time. A meeting should also be conducted with the survivor and her mother. Please explain to them that the ship and our company has their best interest at hand and we will provide any reasonable services to her and her family. Explain to them the suspect will be released from isolation but he has terms to abide by. Have someone from the ship stay in contact with the survivor and her mother to make sure they are doing as well as can be expected and have them report any issues directly to the ship for follow up. As I stated before, please advise them we are not a Law Enforcement Agency and that we cooperate with LEN and prepare the best case we can to assist LEN with their investigation and the ship's outcome administratively. This would be my guidance from a Global Security view on this case. I will make phone contact with the ship on this matter today. Please contact me or Senior Investigator Ira Warder if you have any concerns. Thank you. Doug Williams, Global Security. [677] 1. At or around 6:56am on 17 November 2016, Mr Sreedharan sent Mr Williams an email advising him that he would inform the Captain of the email. [678] Mr Panagopoulos 1. Mr Panagopoulos stated after being informed of Mr Williams' recommendation at or around 6.26am, he had a conversation with the Captain and the Chief Security Officer. He recalled that at that time he did not think it was a good recommendation as the Ship would not be able to track the Plaintiff and whether he was complying with the conditions imposed for his release. Further, it would increase the possibility of the Plaintiff coming with contact by with A and her family members. [679] Mr Williams 1. Mr Williams was asked in cross-examination as to whether he consulted anybody before he sent the email referred to at [257]. He stated that he may have spoken to Global Security Management and Mr Dwight Morris but he wasn't sure, and that it was probable that he did not. [680] Mr Williams stated that confinement was not used as a punishment, but rather as protection for an alleged suspect as well as a victim, the crew and other guests on-board. [681] He stated that the chief security officers and their officers are required to update the confinement log and allow the person who's in confinement to have breaks. [682] He stated that they did not want a confined person to be "penned up in a room" and that if they're cooperative they would try to extend as many courtesies as they could. [683] He acknowledged, however, that he was concerned about the Plaintiff remaining in isolation would result in him being there for an excessive amount of time. [684] He acknowledged that his concern related to the impact of an extended period of time in detention upon the Plaintiff's health. [685] 2. Mr Williams acknowledged that his statement recorded that the staff on the ship should first speak with the Plaintiff and indicate the terms and conditions of his release, and then speak with A and her mother to indicate the decision that had been made. [686] He referred to this as "guidance." 3. Mr Williams was then taken to Chapter 9 of the Policy, Revision 73 of 14 November 2016. He accepted that when the Ship was dealing with a serious security incident, that Global Security would direct those on the Ship how to respond. He stated that that direction would be way of guidance. [687] He accepted that the policy spoke in positive terms of a direction being given by global security. [688] He acknowledged that in sending his email, he was giving directions in relation to the Plaintiff. [689] He accepted, by reference to 9.09.3 of the policy (which referred to "Involuntary Isolation") that Global Security must agree with the action proposed by the Captain. [690] He also accepted that this was consistent with Policy 9.04, that Global Security will direct a ship's response in circumstances where one is dealing with a serious security incident. [691] However, Mr Williams qualified this by stating that it was the Captain who was the ultimate authority on the ship. [692] Mr Williams stated that he could not recall any further communication with ship other than that which was referred to in response to his emails. [693] Captain Sullivan 1. Captain Sullivan stated that he recalled reading Mr Williams' advice that he release the Plaintiff on conditions and that "the suspect guest in this case will be in isolation under guard for an excessive amount of time". He accepted that this indicated that Mr Williams thought that it was too long to keep the Plaintiff in isolation to wait until the Ship's return to Sydney. [694] He stated that notwithstanding this, the Plaintiff's health was fine and he made sure that he was being fed and taken care of. [695] He acknowledged, however, that the Plaintiff at one point wanted to see a counsellor but stated that they didn't have one on the Ship. [696] He stated that he did not accept that what was being conveyed in Mr Warder's email about being kept in isolation "for an excessive amount of time" meant that it may have an adverse impact upon the health of that person. [697] 2. Captain Sullivan's attention was next drawn to the Defendant's policy as to security incident reporting requirements. He acknowledged that consistent with that policy, the notification to Global Security for an alleged serious security incident had been made. [698] His attention was then drawn to paragraph 9.04 of the Policy which stated:- Note: Global Security will direct ship's response to serious security incidents. Immediate telephonic notification does not satisfy the requirement for close coordination with Global Security. Close coordination will require direct, near-continuous communication with Global Security, likely by telephone, from the earliest stages of a serious security incident allegation. [699] 1. He accepted that the way it was worded implied that Global Security would direct both the Captain and his staff in relation to a response. [700] He stated that the email itself was phrased as guidance, but acknowledged the policy would indicate that it was a direction. [701] He stated that he didn't believe this part of the policy was applicable at the time of his decision; however he took the advice as guidance from Global Security. [702] 2. After receiving the email, he stated that he wanted to explore the option to see if it was going to be viable in the circumstances. [703] He denied that he had reached the view that the Plaintiff should be released at that time, stating that he didn't think it was the best option, but was rather willing to explore it by meeting with A's family. [704] Meeting With A and Her Mother – 17 November 2016 1. At about 10:50am on 17 November 2016 a meeting was arranged with Captain Sullivan, Mr Panagopoulos, Mr Sreedharan, Guests Services Manager (Ivan Larence), Care Team Manager (Adriana Castro), A and her mother in the European Conference Room to inform them of Global Security's recommendation. Mr Sreedharan 1. Mr Sreedharan stated that A's mother was not happy with the recommendation and stated that if the Plaintiff was going to be released she would throw him overboard. Mr Sreedharan's security incident statement dated 17 November 2016 at 6.30pm was annexed and relayed this conversation in somewhat different terms, stating:- Captain informed [A's mother] that he had received directives from the office to release the suspect from isolation as we/the ship is not a law enforcement authority. Hearing this [A's mother] became very emotional and told that she cannot agree to that. Further she stated that if the subject is going to be released she will throw him overboard. Captain then decided to keep the suspect in isolation under guard. [705] 1. Further in the file note, Mr Sreedharan states:- Captain, staff Captain, chief security officer, CSOM and CTA Adriana was present for a meeting with [A's mother] and [A] when Captain told he has to release the suspect. [706] (emphasis added) 1. An email sent by Mr Sreedharan to Global Security at 8.15pm stated:- …Captain told [A's mother] that the directives received to him from office was to release the suspect. Hearing that [A's mother] became very emotional and told if she would have known that yesterday in Noumea all her 5 family members would have disembarked the ship. She also told that she is not at all going to agree with this decision and ""will throw the suspect overboard if he is been released from custody""". [A's mother] also questioned why the other male guest and the other female guest who was also in the stateroom on that night along with [A] is not isolated. [A's mother] became very emotional on tears telling that she will not any way agree to the decision. [A's mother] also told Captain that while she was in the Police station in Noumea Australian Federal Police Officer Joseph Zeller [phone redacted] told A that the suspect should be kept under guard if [A] and [A's mother] were on board cruising. 1105 Hrs Captain Rick Sullivan took the decision not to release the suspect from isolation until further notice considering the safety and security of Daniel Rawlings. 1130 Hrs Captain called Global security senior investigator Michael Carey and updated that Daniel Rawlings will remain in isolation under guard till Sydney taking into account of his own safety and security. 1159 Hrs Captain, Staff Captain and Chief Security Officer met guest Daniel Rawlings who is isolated under guard in the stateroom 6121. He was the escorted to Dk-5 Crew smoking area for smoking cigarette on his request. In the smoking area Dk-5 open deck Captain and Staff Captain talked with Daniel for 30 minutes. 1232 Hrs Captain Staff Captain Chief Security Officer along with the security staff on duty escorted Daniel back to the stateroom 6121…Chief Security Officer also informed Peter [Allen] about the meeting with Captain conducted with [A's mother] along with [A] and separately with Daniel and the outcome…Chief Security Officer informed Peter that Daniel Rawlings will remain in isolation in the stateroom 6121 as decided by Captain for his own safety. [707] 1. In cross-examination Mr Sreedharan stated that with reference to his security incident statement that he accurately recorded everything that happened in that meeting. In particular, that the Captain received a directive from Global Security saying that the Plaintiff should be released. [708] He confirmed that he was not aware as to why Ms Miles or Mr Champion were not isolated. [709] 2. Some 15 minutes later he confirmed that it was the Captain who took the decision not to release the Plaintiff from isolation until further notice. [710] He stated that it was the Captain's position and he changed his position and he did that to look after the safety of the Plaintiff. [711] He accepted that he did not have a part to play in making the decision and it was a matter for the Captain. [712] Mr Panagopoulos 1. At around 10.50am on 17 November 2016, Mr Panagopoulos stated that a meeting was organised to discuss Global Security's recommendation that the Ship consider releasing the Plaintiff from isolation. He stated that when the Captain informed A and her mother of that possibility, A's mother became furious and stated words to the effect that she would throw the Plaintiff overboard if he was released. He stated that A's mother appeared to be quite concerned and claimed that her daughter was not behaving normally and that she might have been drugged and raped from the moment she was found naked. He recorded that A vomited when hearing the Plaintiff would be released. [713] 2. In terms of the advice received from Global Security, Mr Panagopoulos maintained the directive in terms of the Policy was that the Captain would make the overall decision. In terms of the meeting, he accepted that Captain Sullivan intended to advise A and her mother that they were going to release the Plaintiff from isolation, as the Captain had promised A's mother that he would come back to her with feedback from Global Security. [714] He accepted that when the Captain informed them of the news, A's mother became quite angry, and made a statement in relation to the Plaintiff's statement in that she would throw him overboard. [715] 3. At that point, he accepted that steps could have been taken to confine A's mother, but the decision not to do so at that point was because A was dependent on her mother and it would have created other issues. It was also easier for them to protect the Plaintiff in isolation. He stated that he didn't speak to the Plaintiff personally about it. [716] Captain Sullivan 1. Captain Sullivan stated that he ultimately had authority and responsibility to maintain the safety and security of everyone on-board the Ship. In some instances he would follow the suggestions made by Global Security, but there had been instances, such as this case, where he made a different decision based on the dynamics on-board the Ship. Captain Sullivan stated that in his view there was no question as to whether or not the correct decision was to hold the Plaintiff in confinement until they reached Sydney. [717] 2. Despite disagreeing with the advice that he was given by Mr Williams, Captain Sullivan did communicate the suggestion to A and her mother. At around 10.50am on 17 November 2016, Captain Sullivan stated that he attended the meeting with others earlier referred to discuss Global Security's suggestion. He recalled that A's mother was very emotional that the Plaintiff had not disembarked in Noumea and could be let out to roam the Ship, saying words to the effect that she would throw him off the Ship if he was released. [718] 3. Captain Sullivan stated that when he passed on Mr Williams' suggestion to A and her mother, he made observations that A looked sick and did not look well at all. [719] In cross-examination he stated that her eyes teared up and she looked down and did not look well. [720] He did not, however, make any enquires as to her health at that point in time. [721] He confirmed that there were no medical staff present at the meeting, but there were medical staff on-board. [722] Captain Sullivan indicated that he was not aware that at 9.23am A had attended the medical centre on-board the ship, who examined her reporting that since that morning at around 8am she started vomiting and had four or five episodes. [723] Accepting that he was not informed that A had four episodes of loose stools, awoke with some abdominal pain and had two episodes of bilious vomiting prior to meeting her at 10.50am on 17 November 2016, he stated that A's response when informed of the news was an emotional response and that she did not look well. [724] He stated that A's mother spoke out after A looked unwell. [725] He acknowledged that while A's mother was angry and that she threatened to throw the Plaintiff off the Ship, he did not believe that she would be able to act out on that threat. [726] Captain Sullivan stated that in deciding to confine the Plaintiff for a further period he did so for the initial reasons, in that he was a suspect in an alleged sexual assault, based on the statements provided to him prior to reaching Noumea. [727] 4. When it was put to Captain Sullivan that it was the threat by A's mother to throw the Plaintiff off the side of the Ship that caused him to decide to keep him in isolation, he stated that he did feel that if they did meet each other it could cause another type of security incident that may not have necessarily led to the Plaintiff going overboard, but may have caused a conflict. [728] He stated that they could not have necessarily taken all steps to control that conflict as they could not follow every single individual around the Ship at all times. [729] He also stated that he did not have control such as to confine people to particular places within the Ship. He further stated that he did not have enough security guards on board to follow somebody around. [730] Overall, he stated there were around 3000 passengers on board the Ship, with approximately 16 security staff. [731] He acknowledged that he didn't want A's mother to have the opportunity to meet the Plaintiff in case there was an interaction between them. [732] He acknowledged, nonetheless, that he did not speak to the Plaintiff about being released and not approaching A's family. [733] He regarded the safest thing to preserve evidence, to ensure that a story could not be collaborated with other people and to take care of the Plaintiff was to keep him locked up. [734] He accepted that he could have made a request that he not speak with other witnesses from the ship. [735] However, he stated that it would have been difficult to observe the Plaintiff the whole time. [736] 5. At around 11.30am on the same day, Captain Sullivan stated he called Global Security to provide an update and inform them of his decision to keep the Plaintiff confined until the Ship had arrived in Sydney. [737] 6. When Captain Sullivan's attention was drawn to an account of the meeting, located in the email sent to Global Security shortly after the meeting he stated that he did not write that account. When he was taken to the entry stating he "took the decision not to release the suspect from isolation until further notice considering the safety and security of Daniel Rawlings", he stated that he thought that the security and safety of everybody was at risk if they were to meet. [738] Ivan Lawrence 1. Mr Ivan Lawrence did not give evidence before me however tendered in the case was a security incident report dated 17 November 2016. In it he recorded:- DSM Ivan Lawrence 44584 11/17/16 10.55 am. A meeting has been held today with guests, [A] and her (mother) [redacted]. During this meeting, and as mentioned above GSO Castro, GSM 1. Lawrence, CSO D. Singh, SCAP P. Panagiotis, Master R. Sullivan have been present. During this time, Master R. Sullivan has explained to victim's mother, [redacted] regarding advanced notification from Global Security who have requested the Accused Daniel Rawlings #6121 to be released from isolation. At this time guest [redacted] who is the mother of the victim has become very emotional whilst also making the following statement "If I had known that you would be releasing the suspect, both myself and my daughter would have got off the ship. If the suspect is released I would be forced to throw him over-board. [739] 1. In answer to the further question "When did the incident begin and when did it end?" he responded:- As direct consequence of the comment. It was then decided by the Master R. Sullivan that the suspect, namely Daniel Rawlings would not be released from isolation. [740] Abreu Castro 1. Ms Abreu Castro also did not give evidence before me however tendered in the case was a security incident report dated the following day being 18 November 2016. In it she recorded:- Yesterday, Nov 17, on a meeting with Captain, Staff captain, SECO, GSM and CTA (myself) to inform guest [A's mother] and [A] about the decision made by Global Security to release the suspect, [A's mother] became very emotional and upset with the decision. As the captain was trying to explain her the procedures and the decision, [A's mother] mentioned that she couldn't agree with that decision and if the suspect would be released she would throw him overboard. After listen what [A's mother] had to say Captain then decided to keep the suspect unreleased. [741] Meeting with the Plaintiff Mr Panagopoulos 1. At around 11.59am on the same day, Mr Panagopoulos recorded that the Captain, the Chief Security Officer and himself met with the Plaintiff to inform him that he would be confined until the Ship reached Sydney. 2. He stated that during the period of confinement the Plaintiff was offered to walk to an open deck and have a smoke break, and that he was provided with food and amenities. [742] Captain Sullivan 1. Captain Sullivan stated that when he met with the Plaintiff in the room he was confined in to inform him that he would be confined until the Ship arrived in Sydney. He also went to check up on how the Plaintiff was fairing mentally. He explained that the Defendant was not a police force and they could not judge whether or not A's allegation was true or not, but he recalled that the Plaintiff appeared to understand the position he was in. He then escorted the Plaintiff to Deck 5 for a walk and a smoking break. [743] 2. Captain Sullivan stated that during the Plaintiff's confinement, he was provided with food and enmities. He stated that they also sought to ensure that his cabin was located in a quiet area not near other people and that he was allowed walks and cigarette breaks. [744] The Confinement from 17 November 2016 onwards 1. From the time he was in the conference room, the Plaintiff stated that he was wearing a pair of shorts and nothing else. [745] The Plaintiff stated that that was the only pair of shorts that he had and that he wore them for two days in the first room that he was held in, [746] and that he washed them in the sink of the ensuite. He stated that after two days, he was provided with some generic clothing from the gift store, including a shirt, underpants, and shorts for him to wear. [747] He stated that he wore them but that they didn't fit very well. [748] Over the two to three day period, he stated that there was a security guard outside the door at all times, and that the door was kept ajar while a security guard would come in every 30 minutes to check on him. [749] He stated that when the security came in every 30 minutes, he was distressed and would awake in a panic many times even when the security guard wasn't looking over him sleeping. He said that he had dreams of him standing over him constantly. When he was washing his shorts, the guard would come in when he was fully unclothed and it was "very embarrassing". [750] 2. The Plaintiff stated that the doctor visited him on a number of occasions when he was in the cabin. [751] He stated that at one point he asked to see a counsellor as he was emotionally unstable, afraid and needed reassurance, and needed somebody to help him cope with the situation. [752] At no point was he supplied with mental health services. [753] He did not remember Dr Clarey offering to provide some measure of counselling to him. [754] He recalled asking for a counsellor and being informed that there was no counsellor on the Ship. [755] At one point he recalled doing push ups and pull ups within the cabin. [756] 3. He stated that he did ask about the wellbeing of the two girls (being A and Ms Miles). He did so as he stated he was concerned that one of the girls had been found not remembering what had happened and he was always looking out for others' wellbeing. [757] He said that he wasn't sure whether it was A or Ms Miles who was the girl who had been found that he'd been told about. [758] However, it was confirmed at one point when A's mother came and found the room the Plaintiff was in. [759] 4. Despite stating earlier in his evidence that he did not have any further contact with Mr Allen, the Plaintiff later gave evidence that he contacted Mr Allen at one time while they were in a "good phone area", but that they could never make the connection thereafter. [760] He did not recall whether he asked Mr Allen for counselling, but in any event for the entire period he was not provided with any mental health services. [761] He stated that the Defendant has not offered him mental health services since he left the Ship. [762] 5. The Plaintiff stated that he saw Captain Sullivan while he was in isolation around three occasions. [763] He stated that he asked on many occasions to all of the people who were guarding him whether he could leave the cabin for a period of time. [764] He stated that it was disputed for a long time whether he could go outside the cabin for a smoke but he was eventually allowed to do so. [765] 6. The Plaintiff stated that whilst he did not regularly smoke cigarettes, he did on the Ship as it was an excuse for him to go outside for fresh air and for a change of scenery. When this happened, he was taken through as many of the staff hallways and stairways as possible so they that he could be concealed. He was eventually taken to the staff deck area. [766] The Plaintiff stated that in this area he could see the sky but not the horizon and the sea. [767] The Plaintiff recalled going outside with the guards on three occasions. [768] After the Plaintiff got off the Ship he stated that he continued smoking a lot more, along with drug use and alcohol consumption. [769] 7. It was put to the Plaintiff that at some stage before the day he returned to Sydney he spoke to Mr Allen and requested that a message be passed onto Mr Champion. He stated that he did have a memory of asking a message be passed to Mr Champion. He accepted that he tried to pass on a message to Mr Champion the day before he arrived in Sydney, so that Mr Champion could communicate with the Plaintiff's grandparents who weren't available until Sunday evening because they weren't in Sydney. [770] 8. The Plaintiff stated that he couldn't remember communicating to Mr Champion in the message that "They are going to press charges", although he accepted that if Mr Allen recorded that he did then his memory may have been faulty about this. [771] He did accept that it sounded familiar that he said something along the lines of that he would be "passed to authorities on arrival into Sydney". [772] The Plaintiff did not think it was correct that each day from the 16 to 19 November 2016 he contacted Mr Allen. [773] He stated that he had to insist on making contact with Mr Allen and that there were lengthy delays between his requests to make contact and actually being given the opportunity to do so. The majority of the time contact was not made because it was not possible from where they were on the water. [774] Advice from Port Agent 1. At 4.13pm on 17 November 2016 the Sydney Port Agent, Mr Andreas Kaesch, emailed Mr Sreedharan stating that police would like to know if a sexual assault examination kit was performed to which the later responded that it had. [775] 2. At 4.26pm on 17 November 2016, Mr Allen wrote to Mr Sreedharan inter alia requesting:- Thank you for your persistence trying to put us through. It took several attempts but we got there in the end. I would like to do this again tomorrow afternoon please. Thank you again also for your team's efforts in accommodating him. I think the fresh air did him the world of good. Daniel asked for a few items though please and I wonder if you would mind helping him with this again. - Firstly, now that he is aware of the nature of the allegations, he wants to inform his family in Australia and needs your help please to connect him. The contact name is Ms Denise Moore [redacted]. I have let Denise know that she can expect a call from Royal Caribbean cruises to connect him. - Secondly he has also asked to speak to a counsellor please. If that something Royal Caribbean can provide. We may be able to find someone from Australia if need be. - Finally Daniel has requested to speak to his friend on board, Matthew Champion. I told him that this may not be possible but that I would pass on this request. [776] 1. At 7.15am on 17 November 2016, Mr Sreedharan sent an email to "Mathieu" from the New Caledonian Port Agent and Mr Allen advising that a senior administration officer at the Australian Consulate had mentioned Sydney Water Police would be waiting for the Ship's arrival in Sydney for the purposes of investigating of the incident on board. He asked for name of the officer who had been assigned to the case. [777] 2. An email was sent on 18 November 2016 by Ms Wete at the Consulate in Noumea informing Mr Sreedharan that the officer was a Detective Sergeant Zeller from AFP operations. [778] 3. At 1.50pm Mr Sreedharan responded to Mr Allen stating:- We got from you the day before we sailed out of Noumea was that Sydney Police will be waiting in the port of Sydney with the ship arrival to investigate. It has also been mentioned by the Port agent in Sydney that Australian Federal Police who called him will be assisting in arranging authorities to come onboard after arrival in Sydney. Also the email received few minutes back from Policy officer, Australian Consulate General Officer Rose Wete states that Det. Sergeant Joseph Zeller is the contact for the Australian Federal Police. The same name was given by [redacted] to us after she went out in Noumea. Is the Det. Sergeant Joseph Zeller the Officer who is going to board the ship in Sydney.for investigation? … Since it is a very serious security incident is it vial that we involve appropriate law enforcement authorities to investigate and take on the decisions for your below request. If Det. Sergeant Joseph Zeller is the Officer going to investigate the incident we need to take directives from him for the below. Please can you let us know as soon as possible. [779] 1. Mr Sreedharan's statement recorded that at 4:59am on 19 November 2016, he received an email from Mr Kaesch, addressed to Mr Allen, copying Mr Sreedharan, stated:- …I was clearly told by NSW police that no contact between the Suspect and his friend – absolutely not. This is to avoid any interference with their investigation. It is just another 14 hours before the ship docks so it is soon over. I was clearly told so by the Senior Inspector in charge yesterday of NSW Water Police – no contact except passing a message to the parents thru Ships Security Officer… [780] 1. He stated that this provided clear instructions that the Plaintiff was not to speak with Mr Champion under any circumstances. In his view, the Ship could not prevent that from happening unless the Plaintiff, or alternatively, Mr Champion was confined. He stated that the Australian authorities did not want the Plaintiff to have any contact with A and her family as well, and the only way to ensure that was to keep the Plaintiff, or alternatively A and her family confined. [781] Mr Panagopoulos 1. Mr Panagopoulos stated that in light of the email from Mr Kaesch, the Ship could not stop the Plaintiff from speaking with Mr Champion unless the Plaintiff was confined. [782] Captain Sullivan 1. Captain Sullivan stated that following receipt of the email from Mr Kaesch, he understood that NSW Police did not want to have potential witnesses and suspects talking with each other to align stories. He stated that this reinforced his decision to confine the Plaintiff. [783] Altercation Outside Cabin The Plaintiff 1. The Plaintiff stated that on the fourth day of his isolation, he heard some noise outside the door of the cabin, and could hear a distressed woman yelling, speaking very loudly and talking to the guard outside of his room. She stated that she had found the person that raped her daughter, that she was very angry that he wasn't locked in a cell, that she was angry that the door was ajar and that he could overpower a guard and escape and come after her daughter. She insisted that the Plaintiff should be bound or restrained. [784] The Plaintiff stated that he insisted that the Captain come down to the room and at that point he was on the floor in tears sitting behind the door, hoping that she wasn't going to break past the guards. He stated that he wasn't sure who she was with or if there was anyone there that could overpower the guards and get into the room, and he was trying to barricade the door. [785] At that point he described himself in tears, and while providing this evidence, appeared to be teary. [786] 2. The Plaintiff stated that he could hear the lady speaking outside the room for ten to fifteen minutes and he heard other people attend and at this point the door was shut. [787] The Plaintiff stated that he was in tears that he had heard somebody suggest that he had raped their daughter and it brought back to him matters from his past. In particular, his ex-partner who had been sexually assaulted by her stepfather, and his mother who had been the subject of sexual violence. He said that if he felt that a woman is being mistreated he would be the first person to try to assist, help and comfort her. [788] The Plaintiff said that an accusation of rape was one that still impacted on him. [789] He said that he found it hard to put into words how he felt about the accusation, but that it destroyed him inside. [790] 3. The Plaintiff stated that so far as the incident he was only aware of who the person was because he heard the person say, "He is in there. He raped my daughter." He accepted that he made the connection that it was A's mother. [791] The Plaintiff stated that he didn't know who was complaining about him besides A's mother outside the door. He stated that he didn't know that A had said anything about him and he was told A said she didn't remember. [792] He stated that he had been told that before A's mother was outside his door. [793] The Plaintiff stated that he didn't see A's mother and he only heard her. However, he accepted that from hearing her she was upset and his impression was that she was upset with the Captain. He stated that he wasn't sure if she was upset with him. [794] 4. The Plaintiff stated that that was the first time that he had been near her or heard her speak and he was not sure if somebody said that A's mother was on-board at the time. [795] He could not remember being told that A's mother was outside his door as she was upset that she and A had made statements to New Caledonian police. [796] He did recall hearing a commotion outside and other voices and another voice coming later to speak with her and calm her down, but after a short period of her being there he said he was in tears. The Plaintiff stated that he was upset and afraid that somebody was upset that he "may have done something which she had said". He also thought that somebody was going to try to get into the room. [797] He stated that A's mother had suggested that he had raped A and he had strong view about sexual assault and with women being mistreated in general and that he was crying on the floor as a result. [798] He described A's mother as yelling, in that she was loud and distressed. [799] The Plaintiff accepted that no later than A's mother was outside his room he understood that what was being suggested was that he had sexually assaulted A. [800] He further accepted that up to that point in time he had not given his version of events to anyone on the Ship. He accepted that it was possible that he told one of the security guards on 15 November 2016 that he had sexual intercourse with two women and it was consensual. However, he could not remember. [801] Other than that statement and the statement to Dr Clarey the Plaintiff stated that until that point he hadn't given his version of events to any official on the Ship. [802] 5. Following the interaction outside, the Plaintiff stated that the door was shut. A few hours later, he was removed from that room and taken to another room with additional guards. [803] He described not really recalling the number, but it was four or more. He stated that his head was down and they were trying to conceal his identity. [804] He said his head was being held down by pushing it forwards so that his eyes were directed to the ground. [805] The room he was taken to was similar to the one he had previously been in, but was a slightly different shape, slightly smaller, with one double bed in it and a cabin window. [806] He remained in that room for a further two days before the Ship docked in Sydney. [807] During this period, security was maintained outside the cabin and the door was kept ajar. He stated that there was significantly less foot traffic outside as the cabin was at the end of a dead-end corridor. [808] The guards, however, continued to enter his room at approximately 30 minute intervals to assess him. [809] On many occasions he described as being awoken from his sleep. [810] 6. In cross-examination it put to the Plaintiff that when A's mother was outside his room whilst he was on the Ship he was fearful for his safety. He agreed, stating that he was fearful as she could bring somebody strong who could overpower guards and get to him in the room and she also attended after midnight on that occasion. [811] The Plaintiff stated that he was terrified and the Ship was also concerned, evidenced by the fact that they immediately changed his cabin room. [812] He stated that when he was moved rooms he felt slightly safer though he felt it was only a matter of time before they found him again as there was a guard outside of the door and the door was ajar which made it quite obvious. [813] Mr Panagopoulos 1. Mr Panagopoulos confirmed that around midnight on 18/19 November 2016, A's mother located the room in which the Plaintiff was confined, and consequently he told the Chief Security officer to organise the Plaintiff to be moved to a different room. [814] Mr Warder 1. At 1.17am on 19 November 2016, [815] Mr Warder sent an email to what he described as "upper management", with a summary of the incidents and events which had occurred. [816] That email recorded:- … • LEN was attempted at all ports of call- First POC was Mystery Island- there is no law enforcement what so ever at this location • Next POC- Noumea. Police did not respond, so survivor and her mother went ashore, met with the police and brought them back onboard. The National Police Officers mentioned to the Captain that since the incident occurred in international waters and as ship is under Bahamian Flag they cannot interfere with the investigation as it is a matter of the jurisdiction. Subject could not be debarked due to Immigration issues. • Shoreside Mgt suggested to release the subject out of isolation due to LEN not taking action as well as extended period of time under guard. Ship's management met with the survivor and mother to advise them of same at which time the mother said she will throw subject overboard if they release him. The Captain decided to keep subject under guard pending LEN at turn around. Cabin still sealed. The Australian Consulate is engaged. All involved subjects are Australian. [817] Arrival in Sydney – NSW Police Investigation The Plaintiff 1. When the Plaintiff arrived in Sydney on 20 November 2016 he stated that he was exhausted and afraid of the ongoing investigation and wasn't sure if there were any charges, what the actual allegations and if he was to be let free or not. [818] The Plaintiff stated that at this point he knew that there was a certain allegation that he had raped one of the girls on the basis of what he had heard from A's mother outside the cabin. [819] 2. The Plaintiff stated that once the Ship had docked in Sydney, he was escorted to the conference room by the security guards and he met two detectives from the New South Wales Police. He declined to answer further questions, apart from confirming his identity and his date of birth, until he had spoken to a lawyer. [820] In cross-examination he stated that he did not offer police the notes that he had been keeping and the statement he had been composing in isolation. [821] 3. The Plaintiff stated that by the time he arrived in Sydney he was aware that the incident involved sexual activity. [822] He stated that he wasn't specifically told that a young woman was asserting that she did not have a memory of the sexual activity with him, but that police had informed him that A's mother had alleged that he sexually assaulted her daughter. The Plaintiff stated that he wasn't aware what the Defendant had found out by speaking to Mr Champion, Mr Bascur or A. [823] He stated that he only heard about what A's mother had said through what she had said in front of his door, in that he knew that A's mother was told that he was locked in a cell. [824] The Plaintiff stated that he was told by the Captain at some point that there was a girl that was found with little clothing but he didn't mention her name. [825] He further stated that he was aware that the Defendant had made contact with the Miami office, and also the authorities in Noumea and Australia. [826] The Plaintiff accepted that Australian police would be investigating whatever information they were given. [827] 4. Up until that point, he stated that he not had an opportunity to speak to a lawyer. [828] He stated that he did have an opportunity to pass a message through Mr Allen to his grandmother to tell her only that there was an incident, but he was not physically injured. [829] He was not, however, able to speak to Mr Champion or to any other friend until after he had spoken to police. [830] 5. The Plaintiff stated that if he had not have been detained after 15 November 2016, and a request had been made of him to not speak to the two girls about the events of 15 November he would have followed the instructions, kept away and tried to enjoy the remainder of his holiday with Mr Champion. If he had been asked not to speak to Mr Champion about what happened, he also would have abided by that requested. [831] Neither of those requests were made to him by the Captain or by security. [832] 6. The Plaintiff stated that after he had spoken to the police, they informed him there would not be any charges at that time, and they could not speak on behalf of the federal police, who may also choose to investigate. [833] Thereafter, the investigation went on for a period of approximately four months, during which he constantly contacted the detectives. He stated that he was afraid and concerned, and it kept him up at night wondering whether they were going to charge him and that he could potentially be locked up again for something. [834] Nevertheless, after the police had spoken to him on board on 20 November 2016, he was free to go, and he and Mr Champion remained until the other guards left. Security guards stated that he was to go back to the room and stay isolated, and he refused. [835] He stated that he told the guards that the police told him he was free to go, that there are no charges, and that he was not interested in going back to the room. The security guards explained to him that the forensics team were attending his original cabin, and that he was not to attend the cabin until they'd completed with the room, which took several hours. He was able to meet with Mr Champion again at that time, and waited on the Ship and had something to eat while they were shadowed by a security officer the whole time. He said that the guests and staff members were moving around the Ship, and that everybody looked at them and moved away wondering why they were being escorted around to get food by a security guard. [836] At one point they were given access to the room to take their belongings. The Plaintiff stated that the cabin had been tossed, the beds were upside down, everything in the room was thrown around and the bags were empty. He stated that he noticed female clothing on the floor, and believed he saw a female's Converse shoe, which he thought belonged to A. [837] 7. Once he collected his clothing and belongings he left the Ship at some time around 5pm. At that point he was not allowed to take his mobile phone, which was taken as evidence. He gave police his passcode to access the phone. [838] From the overseas terminal, he then proceeded to his residence in Manly. [839] A 1. In her statement to police dated 22 November 2018, A recalled being at Dizzy's night club at about 11.00pm where she was sat behind the bar. She stated that she had a Long Island Tea that she thought that "Mitchell Roberts" had bought for her. She sat there and spoke to her friend Leanne and more people came into Dizzy's. She stated that she walked over to some seats near a large window overlooking the pool area sitting there with a number of friends, including Mr Bascur, for about 10 minutes. She then got up and danced before walking back out to Dizzy's between the bar and the dance floor and saw Ms Miles who was sitting with another person she had not seen before. She had a drink that she was not sure who bought for her. [840] 2. She then got up and danced with Ms Miles and Mr Bascur. She did not recall how long she had been dancing and did not remember leaving Dizzy's. [841] 3. The next thing that she recalled was being on Deck 12 being held up by two men who had their arms around her and were standing either side of her but did not recall if she was walking or was being carried off. She also reported that she saw a Jessie Robertson who she had met on the cruise and said hello. Thereafter she recalled she was looking down and someone was untying her shoelaces in a cabin bathroom. She provided no details of the identity of this person. She believed that she was in someone's cabin bathroom because there was a toilet, bench and sink in front of her. She also recalled falling out of bed before being helped back on the bed but provided no details as to this person. [842] 4. The next thing she remembers is being standing with a little old lady who had short grey hair in front of the elevator area, who accompanied her to her cabin. [843] She then detailed the medical treatment she received on-board and the investigation process. Ms Miles 1. A recorded interview was obtained from Ms Miles on 20 November 2016. 2. In her interview to Police on 20 November 2016, Ms Miles described what happened as follows:- Q 7: OK now we are discussing an alleged incident which apparently to have occurred in room 6277 and um um is alleged to have involved um a person called Dan. We don't have any further details at this stage. Um but can you can you tell what happened in 6227 ah 6277 in relation this matter? A Like from the start? Q 8: Yeah sure. A Ah so we were at the night club and came down to Dan's room 6277 and came in and Dan and [A] started taking their clothes off and I lay down on the bed. Dan's room mate Matt was still in the roomat [sic] the time but he left the room but soon left pretty quickly with all his stuff um so Dan and [A] were laying half on the bed making out like kissing and then moved up to one half of the bed and I was on the other half. Dan started touching her ah maybe fingering and I started kissing her. Um they had sex can I say it like… Q 9: Yeah just describe it the best you can. A Umm yep yeah they were having sex. Umm intercourse and then like we kind swapped so I was having intercourse with him and she was laying there. Umm after she got up and ran to the toilet and vomited. So we put her in the shower and washed the vomit off her and then um I ended up going to sleep oh nah we pushed the beds together um coz Matt had left so we pushed the beds together and they were on one um bed and I was on the other um and then I fell asleep and I think they fell asleep too. And then when I woke up Dan ah not Dan Matt was back in the room and [A] had gone um and then Dan woke up and we had intercourse again. I asked him where she had gone and he said she had gone back to her room so I thought she just got her stuff and left. [844] 1. Ms Miles told police that the Plaintiff was penetrating A with his penis in her vagina while kissing her and was maybe using his hands to touch her and then would do the same with her. Ms Miles stated that she did not have sexual intercourse with A but was just kissing her. She stated that A said that she was enjoying it and that she hadn't "had that" for a long time, and Ms Miles took that as consent. [845] Ms Miles told police that the encounter lasted about 45 minutes. She stated that A was awake and was laughing and "making like moaning and stuff". Ms Miles told police that Mr Champion had left the room about 5 or 10 minutes after they had got into the room. [846] Ms Miles stated that she was kissing A while she was having sex with the Plaintiff and she did not fondle A. [847] At one point she recalled A going to the toilet stating that she needed to vomit. She described her as running or stumbling to the toilet. She stated that she and the Plaintiff put A in the shower. When asked how she was in the shower, Ms Miles stated that she was the same as she was the whole night and was still intoxicated. She described that the Plaintiff was in the shower and she was standing on the outside. At that point, the Plaintiff was trying to get the vomit off A. [848] She described A as being able to keep her head up. She did not recall A saying anything in the shower. She stated that after she got out of the shower, she and the Plaintiff gave her a towel. Ms Miles stated that her and the Plaintiff then got in the shower and had sex in the shower while A dried herself and laid back on the bed. She stated that while having sex with the Plaintiff condoms were used but she did not know what happened to them. [849] 2. Ms Miles described that she had consumed a number of Bailey's at one bar and then she had a Vodka Redbull and Vodka and lemonade. All up she thought she had consumed 4 to 5 drinks the entire night. [850] She did not know what the Plaintiff had been drinking but she thought that people were buying A drinks and that someone had bought her a Long Island Iced Tea. [851] She stated that the Plaintiff did not buy A any drinks. [852] 3. Ms Miles described that by the time A left Dizzy's she had probably drank too much but she was still able to walk and talk and she didn't look as though she was about to pass out. She stated that she understood everything that A had said to her. She confirmed that she had not consumed illicit drugs nor did she see the Plaintiff consume anything illicit. She did not see A take anything illicit. Nor did she or the Plaintiff give her any drugs. [853] Ms Strydom 1. Ms Strydom was also spoken to by Detective Kilmurray of NSW Police on 20 November 2016 and gave an account that replicated what she reported in the security incident report. She added that A smelt of alcohol, however was very calm and relaxed and didn't appear to be drunk and was not staggering when she walked. She stated that A did not appear to have any injuries and did not complain of any injuries. Subsequently she took A back to her room where she spoken with her mother in the presence of security staff. [854] A's mother 1. In a police statement dated 4 January 2016, [855] A's mother stated that she was informed by security staff that A had been found naked in the other lady's room and that they felt that A may have been the victim of a sexual assault incident. [856] They then went to the medical centre where she stated that the female security officer who was with them suggested that A undergo a sexual assault examination. She stated that she and the female security officer encouraged A to undergo the examination and A eventually agreed. Just before being released from the medical centre, A's mother recorded that Mr Panagopoulos and Mr Sreedharan came into the medical centre, where Mr Sreedharan told her, "He had said that they had intimate relations but it was consensual". Once the examination had finished they left the medical centre and by this time A was tired and hungry and they left to go to the room. [857] Mr Bascur 1. Mr Bascur also provided a statement to NSW Police on 5 January 2017. [858] In that statement, he said that on the 4th day of the cruise he went to Dizzy's nightclub with some friends, and he remembered seeing A there with a group of friends at around 10.00pm. He stated that he saw Ms Miles sitting down drinking at a table in front of the dance floor with a guy who he had never met before. He stated that at some stage during the night he recalled seeing A speaking with Ms Miles and the guy. He stated that he went over to have a chat with them and the guy introduced himself as Daniel. He observed that Ms Miles was drinking what looked like a Long Island Iced Tea, and that A appeared quite drunk. He stated that she appeared drunk as he observed her to be stumbling around and unsteady on her feet, and that throughout the night while dancing she had bumped into people and fell over a few times. He stated he recalled Ms Miles saying to A that she was drunk and that she would take her back to the cabin. He insisted that he walk back with them to the cabin as they "seemed drunk at the time." [859] 2. Mr Bascur stated that they all left around 2.00am, and that at that stage A seemed pretty drunk. He estimated that she would have drunk about 8 Long Island Iced Teas, based on the fact that she went back to the bar a number of times while dancing and each time she would order that drink. [860] 3. Mr Bascur stated that as they left Dizzy's night club they went to elevator and got out at Deck 6, and he assumed that they were going to Ms Miles' cabin as she was leading the way. As they were walking, he observed that Ms Miles had her arm around A's shoulders and it looked as though she may have been helping her walk. He stated that they were talking with each other, giggling and appeared to be having fun, and that they seemed like they were good friends. He observed that A was slurring her speech and that Ms Miles appeared to be drunk. He stated that the Plaintiff seemed to be "pretty relaxed" and was talking with the girls as well. He stated that he couldn't hear what they were saying but that the "atmosphere between them was calm and they seemed to be having a good time." Once they arrived at the cabin they opened the door and went inside. He said good night and went back to Dizzy's. [861] Mr Champion 1. In his police statement dated on 6 January 2017, Mr Champion stated that just after 3am he was woken up and heard the Plaintiff come with two girls. He did not see who the girls were because he rolled over and was "fuming a bit" because his sleep was disrupted. He recalled hearing one of the female voices talking with the Plaintiff, saying "What's a fridgee?", referring to the Plaintiff's occupation. He could hear them all moving around and thought he heard one of them fall over. They all laughed about it, and he recalled hearing a girl commenting on the bathroom saying how small it was. Mr Champion then stated that he heard some kissing at some stage because the room would go quiet and that they all sounded a bit intoxicated, stating that they were slurring their speech a bit but that they were stringing together sentences "pretty well." He stated that they didn't seem that drunk. [862] 2. After that, they made more noise and he grabbed his blanket and pillow and left the room. He recalled Ms Miles sitting on the Plaintiff's bed and another girl sitting at the end of his bed. He then proceeded to go to the top deck to sleep. He woke at 4.38am and tried to go back to sleep but felt the wind blowing his sheets off. After another 20 minutes he walked back to his room. When he went to the room, the two beds were pushed together and he could see the two girls and the Plaintiff with them. He could not recognise the girl in the centre of the bed and would not be able to recognise her if he saw her again. He stated that he then proceeded to fall asleep on the floor. He heard two door slams later in the morning, which he assumed as the two girls leaving, and then he moved his bed and went back to sleep. [863] Police Review 1. In the review of evidence prepared by NSW Police it was noted that a number of items were obtained from the crime scene including a condom located in the rubbish bin of the bathroom. [864] 2. So far as the Sexual Assault Investigation Kit [865] was concerned it noted that the examining doctor found some minor bruising on the victim's body that could be explained by a small ice skating accident days prior. No DNA semen or saliva was located on any of the swabs obtained from A. There were no injuries to the vagina or anus. Blood and urine samples contained in a report dated 19 December 2016 confirmed no drugs were identified and the blood alcohol reading taken at approximately 9.15am on 15 November showed a reading of 0.015. [866] 3. On 10 April 2017, Chief Superintendent CJ Craner wrote a letter to the then Commissioner of the AFP enclosing a brief of evidence in relation to the alleged sexual assault of A. He noted that apart from interviewing witnesses and obtaining statements, Police had also reviewed CCTV footage, established a crime scene of the Plaintiff's cabin and complied forensic results. [867] Chief Superintendent CJ Craner stated there was insufficient evidence to prefer charges and understood that NSW Police did not have jurisdiction. By way of explanation he pointed out that pursuant to s 6(2) of the 2000 Act the criminal law of the Jervis Bay Territory applied to the ship outside the adjacent area (being 200 nautical miles) and pursuant to s 4A of the Jervis Bay Territory Acceptance Act 1915 (Cth) the laws of the Australian Capital Territory applied. [868] The correspondence stated:- As the NSW Police cannot commence proceedings under the Crimes Act 1900 this matter is referred to your agency, being the principle law enforcement agency. The Australian Federal Police, ACT Policing would need to determine to determine the prospect of conviction according to their relevant legislation and common law when considering whether to commence proceedings. [869] 1. That referral was received by Offshore Criminal Operations Involving Australians of the AFP on 4 May 2017. Following a review of the material on 13 July 2017, Federal Agent Jesse Vince recommended a rejection of the state referral without further action recording:- * A had not provided an account of what happened within room 6227 between the approximate hours of 2.00am and 5.05am on 15 November 2016 * CCTV footage confirmed that A entered room 6227 with the Plaintiff and Ms Miles at 2.00am and left at 5.05am * Ms Miles states that she observed A and the Plaintiff have consensual sex * Mr Champion states he didn't witness the incident however observed A prior to the incident and that she was speaking coherently, giggling and enjoying herself * A's version of events is inconsistent with the CCTV footage. CCTV footage confirms that A was at no stage on an outside deck and was not being held up by two unknown males as stated by her in her statement * No evidence was located on the Plaintiff's mobile phone * The crime scene exhibits did not provide any further evidence * A did not suffer any obvious injuries * Analysis of urine blood samples revealed that there were no drugs present in the samples and the blood alcohol level was 0.015 * There were conflicting versions from A and witnesses in relation to the quantity of alcohol consumed by A leading to the incident. [870] 1. A report noting that the matter was finalised was completed by the AFP on 3 August 2017. [871] LIABILITY Plaintiff's Credit 1. The Defendant submitted that the Plaintiff's evidence should be treated with a high degree of caution. It drew attention to his statements as to his state of sobriety which were contradicted by the history that he gave to Dr Allnutt as to him being influenced by alcohol at the time of his detention in the conference room. [872] 2. I accept that the Plaintiff's response as to his state of sobriety whilst he was detained in the conference room are inconsistent with his claim that he did not feel he had much to drink on the evening and morning of 14 and 15 November 2016. Beyond that, his account of what he says occurred in his cabin with Ms Miles and A was variable. 3. The Defendant submitted based on statement to Dr Clarey that the Plaintiff did not use a condom which was described as an extraordinary breach of trust. [873] On the basis of the findings in the police search of the cabin and the findings of the sexual assault investigation kit I accept his evidence as to using condoms. It was consistent with Ms Miles' evidence in this respect. 4. The Defendant further submitted that the Plaintiff was manipulative in the early hours of 15 November 2016 when he instigated the approach to A through Ms Miles knowing that she was drunk and taking steps to ensure that Mr Bascur should be put outside. [874] This proposition was not put to the Plaintiff and I give it no weight. 5. During the course of Ms Miles' cross-examination, the Plaintiff communicated messages to her on Facebook Messenger which were tendered as part of Exhibit D. Those communications had commenced prior to her giving evidence that day but resumed during the morning tea adjournment. The exchange relevantly includes the following:- Plaintiff: You're doing well. Miles: This is so much harder then I though Plaintiff: The trick is– when he suggests you don't have to say yes or no, you can say your view Miles: Okay. Plaintiff: He will exaggerate things and then ask you to agree Miles: I don't like that he's saying drunk because I don't think it's something that determines someone's abilities to make decisions Plaintiff: Great. Respond with exactly that Miles: I'm so mad at him hahah I just wanna yell at him and tell him that it fucking happened four years ago how does he expect me to know what happened Plaintiff: The nicer you be to him the worse he looks. Plaintiff: Make him look a fool. Miles: Yeah okay Plaintiff: I'm so grateful, you're brave Miles: Thank you. But like I said from the start there was no way I was gonna run away from this, it's the biggest load of bullshit ever Plaintiff: It's taught me a lot Miles: Hahaha yeah! Miles: Don't meet strangers on a cruise ship (crying laughing emoji) Miles: Do you just get to sit there in silence the whole time? Plaintiff: Unless they want me Miles: Yeah true Miles: But they won't talk to you half way through to me will they? Plaintiff: Prolly not. [875] 1. The Defendant submitted that in making those communications he was giving advice to Ms Miles as to how she should answer, including what she should answer and the content of what she should say. It was submitted that he was seeking to manipulate to a degree the evidence in the proceedings to suit his case and that he could only have known that it was reprehensible behaviour. [876] 2. The Plaintiff was cross-examined on the content of these messages by the Defendant. He stated that he was seeking to see how Ms Miles was coping emotionally as he was concerned as to her well-being. He accepted that it could be seen that he was giving advice as to how she should give her evidence but not its content. [877] He maintained that at the time he was not aware that he should not be communicating with Ms Miles. [878] It should be noted, that the communication does record the following exchange prior to Ms Miles commencing her evidence:- Miles: Are you even allowed to be talking to me right now? Hahah … Plaintiff: Yes, you have to make an oath of honesty anyway… [879] 1. Although the exchange does not show the Plaintiff in a favourable light, it doesn't demonstrate suggestions of specific answers but rather advice as to the method of responding to anticipated questioning. 2. In summary I have had cause to carefully scrutinise the Plaintiff's evidence carefully and found it in some respects unreliable and exaggerated. I am mindful that he had a sense of grievance over what had occurred and this in some respects may have coloured his evidence. In assessing it however I have been mindful of the risk with making global findings as to his credibility. [880] Contractual Claim 1. The Defendant submitted that the Terms and Conditions of the cruise provided, in a condensed form in clause 36, a specification as to guest behaviour and notification of the Guest Conduct Policy. It asserted that there was specification therein as to what may happen in the event of a breach of that policy. It stated that the Guest Conduct policy was also referred to in the Guest Ticket Booklet that the Plaintiff received. [881] 2. The Plaintiff argued that there was no term that permitted the actions of the Defendant in the circumstances. Specifically it drew attention to:- 1. The terms of clause 36 of the Terms and Conditions; 2. There was nothing to indicate that compliance with the Guest Conduct policy was at term of the contract; and 3. There was nothing to indicate that breach of the guest conduct Policy may result in imprisonment. [882] 1. Even accepting the Defendant's contention, the Guest Conduct Policy did little more than refer to the capacity of the Captain to take appropriate action to ensure the safety, security and well-being of guests and the application of U.S and foreign laws. As such the Defendant appeared to concede that this was synonymous with its defence at common law. [883] 2. Accordingly, this matter need not be considered any further. Common Law claim Defendant's Submissions 1. The Defendant stated that the common law of detention at sea was scant. Reliance was placed on principles extracted in Halsbury's Laws of Australia at [415-390] and [270-540]. 2. It was submitted that Halsbury's restates the English principle that the master has authority at common law to detain passengers or crew on board a ship where he believes with reasonable cause that such confinement was necessary to preserve the order of the ship or the safety of one or more of its passengers. Reference was made to The Lima [884] and Hook v Cunard Steamship Co. [885] 3. The Defendant submitted that it was presented with the following information on 15 November 2017:- 1. The statements of A and her mother. Those statements revealed that A had no memory over several hours which coincided with her time in the Plaintiff's Room. A's mother considered that she was behaving unusually as if she had been drugged. [886] 2. CCTV vision which showed A walking the corridor on board the ship naked. [887] 3. The statement of Ms Strydom who observed A entering her stateroom to use the toilet. [888] 4. Thereafter a decision was taken not to allow Ms Miles to leave the ship until she was spoken to. Her security incident statement revealed that A had been drunk and had engaged in sexual activity with the Plaintiff which she described as consensual. [889] 5. The Staff Captain determined that the Plaintiff and Mr Champion should be spoken to and their room was sealed. [890] 6. The statement of Mr Bascur which was said to be even more emphatic as to the inebriated stated of A than Ms Miles. [891] 1. The Defendant argued that there was no complaint in relation to the steps undertaken by the Defendant to understand what had happened. [892] 2. It was contended that the policy definition of possible sexual assault – rape was satisfied which operated on the mind of the decision maker to confine the Plaintiff, particularly when it was its purpose was at that point to enable his disembarkation in Noumea. [893] 3. The Defendant pointed out that:- 1. Other than some suggestions being put to Captain Sullivan concerning conclusions he should have reached from looking at the CCTV footage and the statements of Ms Miles and Ms Strydom [894] about whether A was disorientated and/or drunk, there was no relevant challenge to that decision. Nor was there any challenge to Captain Sullivan's determination that the Plaintiff should be disembarked in Noumea. 2. Mr Warder set out the circumstances giving rise to the categorisation of what was known as a sexual assault – rape. There was no challenge to Mr Warder's ability to form the view that he did leading to that categorisation other than a suggestion that it could be concluded that A was neither drunk nor disorientated with which he emphatically, and properly, disagreed. [895] 3. There was no suggestion made to the Mr Panagopoulos that the decision to confine was unjustified. 4. It was not put to Mr Sreedharan that the decision to confine was unreasonable. [896] Plaintiff's Submissions 1. The Plaintiff argued that the objective evidence indicates that there was no reasonable basis for forming the view that there had been any sexual assault or indeed, intoxication at a level that may impair a person's ability to consent. [897] 2. First, the evidence available to the Captain revealed that the sexual conduct between the parties was consensual. This evidence consisted of the following:- 1. CCTV footage indicating A accompanying Ms Miles and the Plaintiff from Dizzy's Night Club to Room 6277. That footage is consistent with a number of young people enjoying the evening, laughing, talking, walking whilst hugging each other and not being coerced into any particular activity; 2. Evidence from Ms Miles indicated the sexual interaction was mutual and consensual in her security incident statement. She states, "We had sex the three of us, intercourse and oral sex." [898] There is no suggestion in the evidence of any coercion, assault, or improper conduct rather, her evidence is to the contrary; 3. Mr Champion's security incident statement provides no evidence of a lack of consent in the time he was present with the girls. He was present with the group in the room for forty-six minutes. [899] 1. The Plaintiff conceded that there was evidence that A was affected by alcohol when she was at Dizzy's, evidenced in particular by Ms Miles in her statement. However, the Plaintiff submitted that the CCTV footage available to Captain Sullivan of A's behaviour after leaving the Plaintiff's room was inconsistent with a finding that the Plaintiff could not consent to sexual activity as she was intoxicated. The Plaintiff submitted the footage shows A leaving the Plaintiff's room naked and then attempting to open a number of doors in order to enter. Whilst the footage is not really clear, it appears that A is moving quickly from door to door in order to find a cabin. Whilst the Plaintiff accepted that the event is unusual, it was submitted that A may have been mistaken in considering the door to the hallway to be the door to the bathroom of the Plaintiff's room. [900] This was said to be not unreasonable given the following:- 1. The diagram of Matthew Champion reveals the close proximity between the two doors. [901] 2. Photographs of the room and the position of the bed in relation to the two doors. [902] 1. It was further submitted that the absence of oral evidence from A's mother on this issue permits the Court to be satisfied that the Defendant's case could not be advanced by calling her. [903] 2. The Plaintiff further argued that Captain Sullivan assumed that rather than a person entering the hallway by mistake as they needed to go to the bathroom was more a reflection on their state of sobriety. [904] It was contended that the difficulty with that statement was that the evidence available to the Captain Sullivan of A's acts after entering Ms Strydom's room were not consistent with either A being disoriented or incapable of knowing what she was doing. [905] It relied on the following reasons:- 1. A used the bathroom in Ms Strydom's room first; 2. Ms Strydom's observation was that A was calm although she could smell alcohol; 3. A informed Ms Strydom of her room number – in other words she had no difficulty remembering her cabin number and instructed Ms Strydom accordingly; 4. Ms Strydom was with A from 5.06am to 5.42am. Nothing in the statement of Ms Strydom suggests A was in any way intoxicated or had difficulty of any description consistent with intoxication; 5. The CCTV footage of Ms Strydom walking with A shows that A was walking in a normal fashion and conversing. The Captain's impression of the CCTV was clearly erroneous where he said, "I would say that A was being in a way assisted by Ms Strydom holding her and helping her along. I would say that that would be the case." [906] 1. It was contended that the evidence of the Captain was an attempt to justify a decision which objectively was not justifiable on the known facts. 2. In these circumstances, the Plaintiff stated that it was objectively unreasonable for Captain Sullivan to form an opinion that a sexual assault had taken place as A could not have consented to the act. The only evidence of drunkenness the Captain had access to was that of Ms Miles and yet her evidence was clear that A consented to the sexual activity. It was submitted that the CCTV footage is certainly more consistent with Ms Miles' view. [907] 3. The Plaintiff argued that when testing whether there was reasonable cause to detain, the Captain's approach to Ms Miles was a relevant consideration. She was not confined at all and the only restriction placed upon her was that she was not permitted to leave the ship until it returned to Sydney and her drinks pass was removed. 4. The actions towards Ms Miles were said to demonstrate the underlying reality that there was no reasonable cause to believe that arrest and confinement of the Plaintiff was necessary for either the preservation of order on the ship or the safety of one or more of its passengers. Further, if the Captain's reasons for imprisoning the Plaintiff were as stated above, why were they not equally applicable to Ms Miles, or indeed Mr Champion given his lack of knowledge of what really happened within the cabin. [908] 5. Further the Plaintiff contended that the evidence that had to be weighed up in the balance to determine the reasonableness or otherwise of confinement was the evidence of A and the circumstances surrounding her being found. 6. The evidence of A was described by the Plaintiff on any objective view, as completely unsatisfactory. It was said to reveal that she could not recall what took place. This was surprising in circumstances where on her own statement her level of alcohol consumption was not great and her blood alcohol level was found to be 0.015 as a result of a blood test taken on the ship. Furthermore, as the AFP ascertained in reviewing the evidence, there were real difficulties with her version of events. It submitted that it was relevant to consider the reasonableness or otherwise of the Captain's actions that A gave the NSW Police a detailed statement regarding her movements leading up to Dizzy's Night Club and meeting with Ms Miles until she alleges that she was taken to Deck 12. She informed the Noumea Police of this fact on 16 November 2016. The subsequent police investigation of CCTV footage from Deck 12 made available to them revealed that there was no truth in that allegation. [909] 7. If further submitted that the other evidence to consider was the fact that A was found naked in a cabin that was not her own using the bathroom. Whilst it was conceded that this was a matter of concern, that fact alone does not indicate that A had been the victim of some crime. Yet that was the reaction of the Defendant through the actions of Mr Sreedharan who immediately reported it as such. Rather, it may be completely consistent with a number of scenarios all consistent with the consensual nature of the sexual activity that had taken place in the evening before and the consumption of alcohol. That fact alone, it submitted, was not sufficient to permit the Captain to believe that reasonable cause existed for the arrest and confinement of the Plaintiff. [910] 8. The Plaintiff also submitted that in determining whether reasonable cause that confinement was necessary existed, one must have regard to the nature of the investigation undertaken by the Ship's security personnel. That investigation was described as flawed in a number of respects:- 1. First, there was no CCTV footage made available from Dizzy's Night Club although clearly the night club was filmed. 2. There was no attempt made to interview any of A's friends who were on her own evidence present with her at the night club 3. A identified that after leaving Dizzy's she went to Deck 12. The CCTV footage viewed by the AFP revealed that to be false. That in itself should have been cause for concern regarding acceptance or otherwise of A's version (even though that was the version provided a few days later). There is every reason to believe that further proper investigation would result in that information being provided to the security officers if A was asked that question. 4. A identified that she was on Deck 12 with a boy by the name of Jessie Robinson. It was submitted that such evidence would have been crucial, yet there was no statement from him. This is particularly so as that is her last recollection and then A's recollection is being in a cabin. [911] Consideration 1. The action of false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification [912] subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is. [913] It is not in dispute that the Plaintiff was detained and restrained by the Defendant. The question is whether the Defendant has discharged its onus of establishing that it was authorised or justified in detaining the Plaintiff pursuant to statutory or common law powers of arrest and detention. 2. The Plaintiff's Statement of Claim asserted that he was taken to the Conference Room and was detained there for approximately 10 hours. That related to a period when the Plaintiff and Mr Champion were escorted and taken to the conference room. Mr Sreedharan, who was one of the escorting officers, admitted that the Plaintiff and Mr Champion were not allowed to leave the conference room pending an ongoing investigation and nothing more could be disclosed. However the Plaintiff's submissions appear to have asserted that the detention commenced from around 2.25pm on 15 November 2015 when a decision was made to release Mr Champion. It is not apparent as to why the Plaintiff chose to recast his case in this way. 3. Be that as it may, the Plaintiff's evidence was that that the Captain told him a girl had been found with little clothing who didn't remember what had happened, that he was communicating with his people in Miami, and he couldn't advise as to any further information because there was an ongoing investigation. The Plaintiff also appeared to accept that as he was being asked what had happened in his room the thought that was increasing in his mind was that he was the person subject of the investigation and it "grew and grew" and then he would have other reasons to think that it was not to do with him. 4. The timing of this conversation is not apparent and, in particular, whether it came before or after Mr Warder advised that the incident would be categorized as possible sexual assault at 2.56pm. 5. The fact that the Plaintiff chose to regard the "detention" complained of as commencing following the release of Mr Champion implies an acceptance of the reasonableness of the Defendant's earlier action pending the investigation. 6. Mr Sreedharan acknowledged that it was he who informed the Plaintiff of the Captain's decision to confine him until the vessel arrived in the port of Noumea, although he could not recall a time or date that that conversation occurred. He stated that he may have told him that law enforcement or some people from consulate people would come on board. He reiterated that so far as he was aware neither he nor his staff informed the Plaintiff that he was a suspect in relation to a potential charge of sexual assault. 7. The Plaintiff's recollection as to the advice he received in the conference room as to the reason for his detention was poor. He conceded, however, he was told that one of the females he was with had left his cabin naked without recollection of what had occurred. He was also aware that Noumea police had been asked to investigate. 8. The Plaintiff's case rested on the reasonableness of the decision to detain him. Both parties appeared to accept that the legal test to be applied to enable the Captain to detain was as described in Hook. 9. The facts in Hook were that the Plaintiff was employed by the defendants as a lounge steward. There was a complaint by a first-class passenger that during the voyage the Plaintiff had indecently assaulted his daughter who was aged 10. The substance of the complaint was taken down by the Chief Master-at-Arms in his notebook and later amplified in a report. When the Staff Captain approached the Plaintiff (with the girl and her father), the girl identified him as the one who indecently assaulted her. The father made an aggressive movement towards the Plaintiff which was intercepted by the Staff Captain. The Plaintiff was sent to work in the pantry away from the passengers. The father demanded that the Plaintiff be placed under restraint. The Plaintiff was then confined in the ship's isolation hospital for the rest of the voyage to New York. The Plaintiff brought an action for breach of employment contract and false imprisonment. 10. In delivering his decision Slade J stated:- In the first place, therefore, I have to ask myself: in what circumstances does the law recognize the right of the master or anyone deputed by him to imprison someone who is on board the ship which he is commanding when the ship is on the high seas? There is very little authority on the point. In Halsbury's Laws of England (Hailsham Edition), Vol. 33, p. 43, par. 75, the law is stated in this way. (I am of course dealing only with the common law right as opposed to the statutory right in circumstances which do not arise in this case under the Merchant Shipping Acts): The master of a merchant ship is justified at common law in arresting and confining in a reasonable manner and for a reasonable time any sailor or other person on board his ship, if he has reasonable cause to believe that such arrest or confinement is necessary for the preservation of order and discipline or for the safety of the vessel or the persons or property on board. I think there requires to be added to that, not only that the master of the ship shall have reasonable cause to believe in the necessity of the confinement for that purpose, but that he should in fact believe that his confinement is necessary for that purpose; that is to say, that the confinement must comply not only with the objective but also with the subjective requirements in that respect. As to the word "necessary" or "necessity," I think that word is vital. That requirement derives some support from a direction to the jury which was given in a case to which Mr. Skelhorn referred me at the last moment before I started to deliver this judgment. That is the case of Aldworth v. Steward. (1866) 4 F. & F. 957. That was an action for imprisoning a passenger on board a passenger ship for insolence to the captain, the justification being that it was necessary for the due preservation of discipline. Baron Channell, in summing up to the jury, said (ibid., at p. 961): It was undoubtedly necessary that the captain of a ship should be entrusted with considerable authority. And it was true, as a general proposition, that the captain had some authority over the passengers as over the crew. But this authority was based upon necessity, and was limited to the preservation of necessary discipline and the safety of the ship. It was true that the captain was not bound to wait for actual mutiny, and he might arrest any movements towards it on the part of the passengers or crew. But then there must be some act calculated in the apprehension of a reasonable man [that is the objective test] to interfere with the safety of the ship or the due prosecution of the voyage. Mr. Molony was also good enough to refer me to a passage in the judgment of Sir John Nicholl in The Lima, (1837) 3 Hagg. 346, at p. 349, in which Sir John Nicholl said: The maritime law and the Legislature have always considered this valuable class of persons, the British mariners, as highly claiming encouragement and protection; but, on the other hand, the maintenance of order, discipline, and the authority of the commanding officer on board, are essential to the safety of navigation, and the great commercial interests of the country. (emphasis added) [914] 1. Slade J then considered the relevant question stating:- Again it is necessary to underline the word "necessary." The question, of course, is not: Did Captain Cove believe the accusation against Hook to be true? The answer is, of course, he did, and of course Dr. Greenberg did. Nor is the question: Had he reasonable grounds for believing the accusation to be true? I am prepared to accept that he had. The question is: Had he reasonable grounds for believing that the imprisonment of Hook was necessary, necessary for either the preservation of order on the ship or the safety of one or more of its passengers? (emphasis added) [915] 1. Slade J concluded:- That, as I have said, is the objective test. I have no hesitation whatever in arriving at the conclusion that the imprisonment of Hook was in no way necessary and that there were no reasonable grounds for believing it to be necessary for that purpose. It is true that on the return voyage Dr. Greenberg could no longer make the wild threats and the extravagant statements that he made because he would not be there to make them; but if there were grounds for believing that Mr. Hook was really the sort of ogre that he was painted as being, I cannot see why the children should have been any more safe on the return voyage than they were on the outward voyage, so long as he remained at large. [916] 1. On the issue of the father's accusations (and the desire to placate him) Slade J stated:- Turning from the Staff Captain to Captain Cove, I have already referred to his radio telegram, and to his report on p. 16 where he said: "Dr. Greenberg and his friend were both very irate, and demanded that Hook be kept in confinement as they considered the children unsafe with him about. So, to avoid further trouble, Hook was placed under observation." As I said before, I am satisfied that it was to avoid further trouble not from Hook but from Dr. Greenberg. If I were in doubt about that view, I should be fortified in it by the action which was subsequently taken to placate Dr. Greenberg. … The desire to placate Dr. Greenberg and to avoid the unwelcome publicity is manifest throughout the correspondence. [917] 1. To determine whether it was reasonable for the Captain to detain the Plaintiff for the period he did, I have considered the decisions to detain at different times of the confinement consistent with the case advanced by the Plaintiff. I have demarcated the periods as best as I could based on when decisions were taken. This was done in the absence of any particularisation or submissions by the Plaintiff that had the initial decision been lawful, precisely when it ceased to be so. These periods are:- 1. The initial decision to confine the Plaintiff. This being the period from 2.25pm on 15 November 2016, when Mr Champion was released from the conference room, to at or around midday on 17 November 2016, when the Plaintiff is informed of the decision to keep him detained until the Ship arrives in Sydney, shortly after the meeting with A and her mother. 2. The secondary decision to confine the Plaintiff. This being the period to continue to confine him from around midday on 17 November 2016 to at or around 1.00pm on 20 November 2016, when Ship arrives in Sydney and Police state that the Plaintiff is free to go. [918] While it is true that the Ship's log indicated that the Plaintiff was still in isolation at that point, it appears that he was thereafter free to move around the Ship under escort and that the delay in his disembarkation was due to a delay in collecting his possessions and awaiting customs clearance. Initial decision to confine the Plaintiff 1. Contrary to the Defendant's submission, the Plaintiff did in fact put it to Captain Sullivan that in the circumstances of what he knew and the evidence he had, it was unreasonable for him to confine the Plaintiff as he did on 15 November 2016. [919] 2. The Plaintiff however sought to equate the threshold referred to in Hook of "reasonable cause to believe that the arrest and confinement is necessary" with a requirement that the Captain had reasonable cause to believe that a criminal act had occurred. [920] I would reject that submission. 3. As was made clear from Hook, the test is not whether the Captain believes the accusation to be true or whether there were reasonable grounds for it but rather whether confinement was necessary in the sense described. In Hook, Slade J accepted that the Captain believed the accusation to be true and that there were reasonable grounds to do so. He did not discuss the converse situation where the Captain did not believe an accusation to be true or did not believe there to be reasonable grounds for the accusation. In the latter case reasonable cause to believe that confinement is necessary would plainly be absent. 4. However, it was not suggested to Captain Sullivan that based on what he was aware, there was no reasonable cause to believe the accusation. He had before him the multiple statements, including A, her mother, Ms Strydom, Ms Miles and Mr Champion, as well as the CCTV footage. There was no issue that A was inebriated at the time of sexual intercourse, although there was an issue as to the extent. There were also further investigations being carried out in circumstances where the Plaintiff was unwilling to provide information. 5. I accept the Defendant's submissions that the Plaintiff's argument presupposes an obligation to conduct investigations to a certain unspecified level. As the Defendant made clear, it was not going to have the final say on prosecution and it had to be careful not to act in a way that is to the disadvantage of anyone associated with what may well be a criminal investigation. [921] In this respect the Defendant's policy envisaged a limit to repeat interviews in cases of alleged sexual assault and not to proving or disproving the allegation. [922] 6. The Plaintiff did not canvas with Captain Sullivan whether the incident involving Ms Miles and the Plaintiff the previous day played any role in the decision to confine the Plaintiff. [923] However, at the time of the decision to confine the Plaintiff, A's blood alcohol reading had not been obtained as is evident from the certificate of analysis from NSW Health dated 19 December 2016. The limited drug screening test results were ascertained on board on 15 November 2016. 7. Nevertheless, it is clear from the evidence that the Defendant's security was seeking to ascertain the circumstances in which A came to be in the position that she had no recollection of what had occurred. To that end, further statements were sought from staff, Mr Bascur and Ms Honda over 15 and 16 November 2016. This is against the background of what had occurred in the incident involving Ms Miles on 13-14 November 2016. The evidence of Ms Miles and the Plaintiff as to that occasion is that security, in the aftermath of that event, were seeking to ascertain if the Plaintiff was in any way responsible. It appears that the further investigations being conducted post the Plaintiff being advised of the decision to isolate him was in part to ascertain the circumstances of A's inebriation and any responsibility the Plaintiff may have had for it. Such is apparent from the content of the statements. It can also be inferred from the earlier decision at 9.40am to forward Mr Warder an email containing an extract of the night report containing a brief description of Ms Miles' condition in the Plaintiff's room on 14 November 2016. There is also evidence from A to Noumea police that she was advised by her mother that when the cameras were checked one person insisted on her having one drink rather that the other. It was not suggested that the Plaintiff was that person. Mr Sreedharan could not recall observing CCTV recordings of bar area at Dizzy's for the evening of 14 and morning of 15 November 2016 apart from that referred to in his evidence. It appears more likely that there was some review of the recordings of the bar area at Dizzy's. This is so, bearing in mind the circumstances, what A is recorded as telling police in Noumea and the other investigations being undertaken. In any event what is clear is that at least by 16 November 2016 there was no evidence to implicate the Plaintiff as responsible for A's inebriated state. 8. One of the criticisms levelled at Captain Sullivan was that he had "cherry picked" the statement of Ms Miles which also referred to consensual sexual intercourse. However, Ms Miles' statement was not the only evidence the Captain had regard to. The Plaintiff himself conceded that he told security guards that he had sexual intercourse. It was the surrounding facts that gave rise to the suggestion that this was in circumstances where A was not in a position to have consented. 9. Further the Plaintiff in submissions accepted that it was appropriate for the Captain to refer the events to law enforcement. [924] 10. I would accept that the Captain had before him a serious yet untested allegation and that at the time of the initial confinement some further investigation was being undertaken by the Ship's security relevant to the precise role of the Plaintiff for A's condition. The Ship's investigation appears to have concluded on 16 November 2016 after Mr Bascur and others provided statements and it was early the following morning that advice was received from Global Security to release the Plaintiff. 11. I do not accept that what the Defendant was required to do before a decision made to confine the Plaintiff was to test and assess every piece of evidence. It was the Captain's task to preserve evidence and have law enforcement notified. Law enforcement were notified both in Vanuatu and New Caledonia. The Captain made clear that in the event that the Plaintiff was not arrested in Noumea it was his intention to disembark him back to Australia. 12. Apart from the claim as to the failure to properly investigate, no criticism was advanced as to the Captains actions in seeking to have the Plaintiff disembarked. 13. Some attempt was advanced to compare the reasonableness of the decision based on the failure to take similar action with Ms Miles. The Defendant argued that the supposed support for confinement was ambiguous as there was no specific statement that Ms Miles was engaged in sexual activity with A. Both Mr Panagopoulos and Captain Sullivan viewed Ms Miles's statement as indication of sexual activity between A and Ms Miles. Mr Warder also recorded that the Plaintiff had advised that the three had consensual sex. Mr Panagopoulos's response for the different treatment of the Plaintiff was, to say the least, confusing. Captain Sullivan stated that he distinguished the position of Ms Miles from the Plaintiff in that the Plaintiff was perceived as a threat to the A's family whereas Ms Miles did not appear to be whilst they continued the investigation. Specifically, he regarded the Plaintiff as to one who organised everybody together and was the ringleader. Nevertheless, there was evidence that the involvement of Ms Miles was reported to law enforcement. 14. Overall, I do not regard the differentiated action to confine the Plaintiff was necessarily brought into question by the treatment of Ms Miles. There was some disciplinary action taken in regard to her that fell short of confinement. This included preventing her from disembarking and removing her alcohol entitlement and some instruction not to discuss the matter. On arrival in Sydney she participated in a detailed police interview. Ultimately, the decision to confine the Plaintiff needs to be justified by the circumstances that pertain to him. 15. In considering the objective test the position needs to be considered from the perspective of a Captain, who is a lay person responsible for a vessel with 3000 passengers plus crew. He no doubt faces in a difficult position in such matters and has to prioritise the safety and security of all on board. Based on the short duration that was involved in the initial confinement, the seriousness of the allegation, the evidence assembled, the ongoing investigation undertaken by the Ship's security, the intended referral to law enforcement and the decision to disembark I am satisfied that I am satisfied in the circumstances that the objective test described in Hook was met. Further, I accept that the Captain did in fact believe there was reasonable cause to believe that such arrest or confinement was necessary for the preservation of order and discipline or for the safety of the vessel or the persons or property on board. There is nothing in the evidence that indicates otherwise. Secondary decision to confine the Plaintiff 1. As to the decision to confine the Plaintiff after Noumean police were not prepared to intervene and the Ship's investigation had concluded, it has to take into account the length of the confinement and its circumstances assume greater significance. 2. The relevant test in Hook incorporates a reasonable manner and for a reasonable time where there is reasonable cause to believe that such arrest or confinement is necessary for the preservation of order and discipline or for the safety of the vessel or the persons or property on board. This was three further days in a small cabin with little sunlight and limited opportunity for outdoor respite. The evidence on this point from Mr Panagopoulos was that he recalled that at that time he did not think it was a good recommendation to follow the advice of Global Security as the Ship would not be able to track the Plaintiff and whether he was complying with the conditions imposed for his release. Further, it would increase the possibility of the Plaintiff coming with contact with A and her family members. In terms of the meeting with A and her mother, he stated that the prospect of releasing the Plaintiff was discussed as a possibility. 3. Captain Sullivan's evidence was that there was no question in his mind of continuing the isolation of the Plaintiff, but wished to discuss the possibility of releasing him with A and her mother. The evidence of Captain Sullivan was that he spoke to A and her mother first and after speaking to them determined that he would not release the Plaintiff. 4. The evidence of Mr Panagopoulos and Captain Sullivan, however, was contradicted by Mr Sreedharan's evidence, documented in a contemporaneous statement file note and email, which stated that the Captain told A and her other that he had received "a directive" to release the Plaintiff and that he "has to" release the Plaintiff. He stated that the Captain also had to explain that the Ship was not a law enforcement authority. After hearing the reaction of A's mother he described that the Captain changed his position to look after the safety of the Plaintiff. Mr Sreedharan's account is supported by the documented accounts of both Ms Castro and Mr Lawrence (neither of whom were called to give oral evidence). 5. In the circumstances I do not accept the evidence of both Mr Panagopoulos and Captain Sullivan on this point. I accept the unchallenged evidence of Mr Sreedharan supported by Ms Castro and Mr Lawrence that the Captain advised that he intended to release the Plaintiff in accordance with the "directives" of Global Security but determined not to following the reaction of A's mother. I am fortified in this conclusion by the Defendant's failure to call or explain the failure to call A's mother. As to Captain Sullivan's claim that as to his observations made of A at the time, they were not recorded by other witnesses and A was not called or her absence explained. However, even if they were accurate I cannot be satisfied that A's condition was attributable to her reaction bearing in mind evidence of her other ill health. The evidence of Mr Sreedharan was that the Captain made the decision for the security and safety of the Plaintiff whilst the Captain stated that it was for the safety and security of all on board. Captain Sullivan acknowledged that he did not consider that A's mother would be able to carry out the threats but wished to avoid a confrontation. The Defendant did not submit that in the face of A's mothers' threat and what might emanate from it entitled Captain Sullivan to continue to confine the Plaintiff. Nor was this particularised in its Statement of Issues amongst the asserted grounds for confinement. [925] I do not accept that the Plaintiff was a continuing threat to A or her family. Such an allegation was not put in cross-examination of the Plaintiff and nor was it suggested by Captain Sullivan at the time he spoke to A or her mother. It is inconceivable that he would have even proposed to release the Plaintiff had he believed that to be the case. The Defendant in submissions appeared to accept an absence of evidence in this respect describing its actions as precautionary [926] and necessary to prevent a counter factual scenario. [927] It accepted that apart from declining to provide a statement, the Plaintiff had otherwise been cooperative. [928] 6. To the extent Captain Sullivan stated that he did not have resources to observe the Plaintiff, this has to be viewed along the significant resources allocated to guarding him in isolation and his inability to indicate what resources he had beyond a reference to "maybe 16" security guards. [929] I am not satisfied that the reasonable alternatives proposed by Global Security, could not have been embraced, particularly when it is apparent that that the Ship had CCTV monitoring facilities apart from security personnel. 7. The Captain's approach to the meeting with A and her mother as I have found it, supports that he did not consider continued confinement was reasonably necessary for the preservation of order and discipline or for the safety of the vessel for the persons or property on board when he indicated his intention. Had it been otherwise he would not have communicated it as he did on the evidence. To the extent he changed his mind, I accept that he did so to prevent an interaction between A's mother and the Plaintiff and for the safety of the Plaintiff. 8. The Defendant then sought to justify the further decision to confine based on the threat posed by the Plaintiff to A's wellbeing, knowing that the Plaintiff would be at large on the ship even though she could not recognise him. [930] This again was not particularised in the Defendant's Statement of Issues as a circumstance supporting the decision to confine the Plaintiff. [931] It was a submission advanced based on contents of consular records where it was recorded that A was pleased that the Plaintiff would remain confined to his cabin. [932] There is no evidence that those details were known to Captain Sullivan. Captain Sullivan's evidence was that in referring to A's wellbeing in his witness statement he was referring to the fact that she was making a serious allegation. [933] 9. I accept that the NSW police were contacted about coming on board the ship when it arrived in Sydney. Quite why they were asked to be involved, bearing in mind the known jurisdictional limits on their capacity to take any action was not explained. Nevertheless I can have little regard in support of the decision taken to the hearsay "directives" outlined at [302] communicated by the Sydney Port Authority to the Ship on 19 November 2020. The legal basis of any such directives was not explained nor was the obligation to follow them. Whatever happened on board was a decision for the Captain to take and accept responsibility. 10. Beyond these considerations, the test in Hook requires the duration and conditions of confinement to be taken into account in considering the reasonableness of the decision. [934] In my view the detention comprising conditions akin to solitary confinement for the remainder of the journey back to Sydney as described was not reasonable in the circumstances. 11. It follows that while I find that the Captain was justified at common law to detain the Plaintiff for the initial period of detention, I am not satisfied that the secondary confinement decision was lawful and the Plaintiff's action in false imprisonment to this extent has been made out. DAMAGES Assessment False Imprisonment 1. Taking into account my findings as to false imprisonment, I would award the sum of $70,000 by way of general damages being from at or around midday on 17 November 2016 to at or around 1.00pm on 20 November 2016. This is rough time period from when the decision to confine the Plaintiff until the Ship's return to Sydney was communicated to the Plaintiff until the Plaintiff was "free to go" as directed by Police. Whilst the Plaintiff was not immediately released from the Ship after speaking with Police, he was allowed to use the Ship's facilities and was reunited with Mr Champion while escorted by a security officer. This was due to pending customs issues and the original room being investigated and searched by a forensics team. [935] Aggravated Damages 1. The Plaintiff claimed aggravated damages flowing from his false imprisonment. This was not particularised as required by UCPR 15.8 and nor did the Plaintiff's opening outline the basis on which this would be pursued. 2. State of New South Wales v Riley [936] summarised the position in relation to aggravated damages as follows at [130]-[133]:- 130 If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages? 131 In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified. 132 That approach is consistent with what Lord Reid said in Cassell & Co. Ltd. v. Broome [1972] AC 1027 at 1085: Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not so where he has been caused mental distress or when his reputation has been attacked - where, to use the traditional phrase, he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain how far other people's minds have been affected, it is almost impossible to equate the damage to a sum of money. Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions. So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled as compensation. It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation. 133 This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means, I think, that aggravated damages can be a matter of degree: the worse the defendant's conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going. 1. The relevant principles governing the award of exemplary damages were conveniently summarised in the State of New South Wales v Zreika [937] by Sackville AJA, where his Honour stated at [60]-[64]:- …Aggravated damages are given by way of compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant's wrongdoing, while exemplary damages are awarded to punish and deter the wrongdoer: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118, at 129-130, per Taylor J, cited with approval in New South Wales v Ibbett [2006] HCA 57; 229 CLR 638, at 646-647 [31],[33]. Aggravated damages are assessed from the point of view of the plaintiff, but an award of exemplary damages is based on the conduct of the defendant: NSW v Ibbett , at [34]; Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1, at 7 [15], per Gleeson CJ, McHugh, Gummow and Hayne JJ. However, the same set of circumstances may justify an award of either aggravated or exemplary damages, or both: NSW v Ibbett , at 647 [33]. [34]. 61 Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect " detestation " for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno , at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is " conscious wrongdoing in contumelious disregard of another's rights ": Gray v MAC , at 7 [14]. 62 Exemplary damages may be awarded against the State in respect of the conduct of police officers for whose torts the State is responsible: NSW v Ibbett ; NSW v Landini , at [114]. The assessment of exemplary damages in a case of conscious and contumelious disregard of the plaintiff's rights by the police: "should indicate ... that the conduct of the [police] was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses ... do not happen." Ibbett , at 653 [51], citing Adams v Kennedy (2000) 49 NSWLR 78, at 87, per Priestley JA. 63 In a frequently cited passage, Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448, at 471, observed that the considerations that enter into the assessment of compensatory damages are quite different from those that govern the assessment of exemplary damages and that there is no necessary proportionality between the assessment of the two categories. Nonetheless, in NSW v Ibbett , at 647 [34], the plurality endorsed the proposition that it is necessary to determine both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation. Their Honours also said (at [35]) that where the same circumstances increase the hurt to the plaintiff and also make it desirable for the Court to mark its disapprobation of the conduct, a single sum may be awarded. Such an award would represent both heads of damage and ensure that no element is compensated more than once. 64 I endeavoured to summarise the effect of the authorities in New South Wales v Radford [2010] NSWCA 276, at [97], as follows (Beazley and Macfarlan JJA agreeing): "These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages for injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award." 1. The Plaintiff ultimately conflated the particulars for both types of damages, relying on:- 1. The high handed way in which the investigation into the circumstances that resulted in the Plaintiff having consensual sex with A and Ms Miles. The investigation was extremely lacking and ultimately the Plaintiff was detained on suspicion of a crime rather than any evidence of a crime. The recommendation of the AFP bears this out. A cursory investigation into the movements of A on the evening in question would have revealed that there was no evidence of any foul play at all. 2. The Plaintiff should have been released at an earlier stage and indeed the Captain received a direction to that effect. Notwithstanding this, the Plaintiff's liberty was unlawfully not restored to him. The knowledge of this fact has caused the Plaintiff even greater distress. 3. Other relevant considerations include the circumstances of his isolation including:- 1. Wearing only shorts for three days; 2. Being frog marched to the isolation cabins with a hand on his head; 3. Being checked on every 30 minutes, even at night; 4. The lights in the isolation room remaining on at all times; 5. A failure to tell the Plaintiff why he was being detained. He did not discover this until the Australian Consulate informed him of this fact; 6. The prevention of communication by the Plaintiff with any family or friends; 7. The absence of any attempt to arrange for psychological assistance even after the Plaintiff made a specific request; 8. The failure to provide any real respite from the isolation room such as an area to exercise, swim etc. 1. It submitted that exemplary damages are directed at providing an example to ensure that such conduct does not occur again. Whilst it accepted that security forces on a ship are required, it submitted that a damages award should set an example that the liberty of the patrons must be treated carefully and reasonably. The circumstances of this case reveal a failure to do so. 2. The Defendant advanced no response to the claim for aggravated damages. 3. It did however draw attention to the absence of prior particularisation of the claim for exemplary damages. 4. The evidence of the Plaintiff was that he wore shorts for two days before he was given alternate clothing from the gift store comprising of shirts, underpants and shorts. Contrary to his evidence there is evidence in the isolation log that he used the Ship's laundry. [938] He gave no evidence that the lights in his room were throughout his confinement. Indeed there is an occasion where it is noted that they were off. [939] Whilst it is accepted that he asked on a number of occasions why he was were being detained, his evidence was that he was aware that there was an investigation in relation to one of the females who he had spent the night with walking naked and being unable to recall anything as to what happened. He was also aware that he was detained so that he could be handed to Noumean police or disembarked. The evidence of Mr Sreedharan was that he was advised that local police would investigate and decide whether to charge him although he may not have been told the Plaintiff the potential charge. 5. I do not find the fact that the Plaintiff being checked on every thirty minutes untoward. This was accepted as much by the Plaintiff, who stated that it was to ensure he wouldn't harm himself. I have borne in mind, however, the fact that he was not allowed to exercise, confined to a windowless room (up until the morning of 19 November 2016), had no access to external communications with lawyers, family or friends and that the only communication permitted was on board medical staff, ship staff and Consulate contact. Whilst it is true that he spoke to Dr Clarey on 17 November 2016 about the need for psychological counselling, Dr Clarey did not record the circumstances. He noted that the medical team could speak to him about his mood and anxiety and the Plaintiff indicated that he wanted to do this "tomorrow and not tonight". There was no consultation with Dr Carey on 18 November 2016, [940] , nor was the offer made by Mr Allen as communicated to Mr Sreedharan earlier that day taken up. So far as the Plaintiff's access to fresh air whilst in confinement was concerned, that was limited as the isolation log demonstrates to smoking breaks after the intervention of the Australian consul on 17 November 2016. He was however allowed to venture around the ship under escort on 20 November 2016 from 1.35pm. Despite this, the evidence of Dr Clarey was that he conducted examinations upon him on 16, 17 and 19 November 2016 and recalled the Plaintiff to be physically well on all occasions. [941] 6. Overall, the circumstances warrant an award of $20,000 by way of aggravated damages. I would make not award for exemplary damages noting the absence of prior particularisation and the failure of the Plaintiff to demonstrate conscious wrongdoing in contumelious disregard of the Plaintiff's rights. 7. The Plaintiff's total award of damages for false imprisonment is $90,000, to which I would add interest at 2% for 4.08 years, being$7,344, coming to a total of $97,344. Civil Liability Claim 1. The Plaintiff further claimed non-economic loss personal injury damages said to be sustained by reason of his false imprisonment. The Plaintiff accepted that these are to be assessed pursuant to the Civil Liability Act 2002 (NSW) (the 2002 Act) in light of s 11A(2). The Defendant accepted that this is so as the Plaintiff did not contend that there was an intention to cause the harm so as to bring it outside the Act pursuant to s 3B of the 2002 Act. I will proceed on this basis Pre-Incident Health The Plaintiff 1. In cross-examination, the Plaintiff conceded that around the time of the cruise he was drinking between one to ten standard drinks and if he was having a big night, up to 15 standard drinks. He described this as including vodka, beer and occasionally champagne. [942] It was put to him in cross-examination that he was drinking between 30 and 40 drinks a week. He accepted this was so. [943] Most of this was in pubs and clubs, and only a small amount was in take‑home alcohol. [944] He accepted that he was spending several hundred dollars a week on drinks at the time of the cruise ship. [945] The Plaintiff conceded that prior to the cruise he would go to pubs and clubs on weeknights regularly in circumstances where he was meant to go to work the next day. [946] He acknowledged that he would stay until closing hours, being 11 o'clock, midnight or sometimes earlier. On those occasions he was due to commence work at Frost Air Conditioning 7.30am. [947] 2. As far as his drug use was concerned, the Plaintiff stated that he last used cocaine more than a year, closer to two years ago. He couldn't recall how long ago but believed it was sometime in 2018 when he had a party by himself over a several day period. [948] Stating that his drug of choice was cocaine, he accepted he preferred cocaine over other drugs because he preferred the effect it had upon him and that he liked using it. [949] Although he couldn't recall the first date he used cocaine, he stated he knew it was before he obtained a conviction for supply of cocaine in 2014/15. [950] He stated that after he was convicted there was a break in his use but he did eventually continue. [951] As to the frequency of his use, he stated that he was using several times a week at pubs and clubs and alone. [952] He acknowledged that it made it difficult for him to sleep and accordingly, had a supply of Valium which he would take before bed to offset the effects. [953] Some of it was prescribed while some of it was not. [954] He could not recall how long he was mixing the Valium with the cocaine for before the cruise. He stated it was on and off, and only sometimes used it in combination. [955] Ultimately the Plaintiff conceded that he used cocaine a year or two before his conviction in 2014/15, had a break after the conviction then resumed using it before the cruise ship. [956] 3. The Plaintiff stated he acquired cocaine through his network/friendship group and that they would all use together. [957] He was spending somewhere between $200-$500 a week on cocaine at the time of the cruise. [958] That would get him between three and five grams, and on average on each occasion would use .01 of a gram to 2 grams of an evening. [959] Quantities would vary however he conceded using an average of 3 to 4 grams of cocaine a week. [960] 4. The Plaintiff acknowledged at the time of the cruise he would spend a couple of hundred dollars a week on average on alcohol and up to $500 a week on cocaine. [961] 5. The Plaintiff was then asked about his gambling activities, and his attention was drawn to a report of Dr Chalk which stated that the Plaintiff had a history of having a gambling problem. [962] The Plaintiff conceded that he gambled regularly and sought assistance from a government organisation gambling aid and put himself on a self‑exclusion program to stop him from gambling. [963] The Plaintiff could not recall when this was so, but when prompted that he told Dr Chalk that he had sought to bar himself from local clubs in relation to gambling around 2016, he stated that that sounded about right. [964] He acknowledged that at one point he was gambling $3,000 a week, but this was not regularly and would depend upon his winnings. On his memory, he stated that his gambling winnings and losings would be around $500. [965] He acknowledged the reason he got help was because he was losing. [966] 6. It was then put to the Plaintiff that in light of his use of alcohol, cocaine (including during the week) the use of Valium, the gambling, and going to bed late at night and then going to work early the next day represented a life out of control. The Plaintiff rejected this statement and stated that was very common in the Manly area and he was considered somebody who had their life in "good control." [967] He rejected the suggestion that his life was out of control. [968] 7. At that time he stated that he was earning roughly $75,000 which was around $1000 a week. He acknowledged that he owned property in 2016 but not the property in which he was residing. [969] Apart from his earnings with Frost, he stated that he did work on weekends for a friend and sometimes would work seven days and evenings outside of Frost Air Conditioning. This was described as cash in hand work. [970] It was put to the Plaintiff that his income would not support his personal habits; he stated that it did. [971] The Plaintiff stated that sometimes he would win gambling and sometimes he would lose up to $500. He stated that if he were to win he have more money to spend. He stated that he wouldn't spend the maximum amount on drugs and alcohol and then lose the maximum amount gambling. If that was the case he said that the sums would not add up. [972] Mr Champion 1. In cross-examination, Mr Champion stated that he would accompany the Plaintiff on some outings during the week before the incidents in November 2016. [973] He stated that he knew the Plaintiff took cocaine and he also knew that the Plaintiff would drink on these outings. [974] Mr Champion stated that he couldn't comment on the Plaintiff's alcohol consumption, but he acknowledged that the Plaintiff would drink "a few beers here and there". It was accepted that this would happen on occasions during the week and on weekends. [975] Beyond that Mr Champion was reluctant to comment on the Plaintiff's drinking and cocaine use, stating that he didn't share a house with the Plaintiff and didn't know what went on week to week, and each of them had their own jobs. He stated that there would be times where he wouldn't see the Plaintiff for a couple of weeks and he couldn't comment on his movements. [976] He stated that occasionally he would accompany him during the week and occasionally on the weekends but as to his week in, week out activities that was for the Plaintiff to comment on. Post Incident treatment The Plaintiff 1. So far as the potential for charges to be brought about against him, the Plaintiff stated that when he was still in Australia in early 2017 he made multiple phone calls and was finally told by the Marine Area Command of NSW Police that they were not pressing charges but could not speak on behalf of any other authorities. [977] It was pointed out to him that at the time they could not speak on the behalf of the AFP, and who may have investigated. [978] He stated that he wasn't certain whether the AFP would be involved. [979] He stated that he never heard from the AFP at all. [980] The Plaintiff stated that at the time of the police investigation he was fearful that he may be arrested and about the legal process associated with what had happened on the Ship. He stated that he didn't think about other consequences. [981] He did accept that he was fearful about being charged and what might happen beyond that. [982] It was put to him that that was the main cause of his anxiety. He stated that it was a very strong cause but the predominant cause of his anxiety was the triggers and panic attacks he was getting anything similar to that experience he undergone, including males with dark complexion, security, authorities, ships and banging doors which would all trigger anxiety and panic. [983] 2. On 21 November 2016 the Plaintiff said that he saw a Dr Michael Halpin. Dr Halpin's clinical notes record:- Multiple issues Vague on detail States was recently 'locked up' on board a cruise ship and commenced on antiretroviral prophylaxis Involved in some sort of complaint from a girl's mother that he had sex with another cruise member without consent -he says neither of them remember what happened cruise doctor started him on truvada and raltegravir- antiretrovirals nil documentation with same, but he has actual tablets was given 2 weeks worth and told to see his gp for the remaining two weeks - this matches up with the 4 week scheudle [sic] of both script given also wants a mhcp due to the above - seems reasonable requests diaz script - last given 2014 under other stressful circumstances, ok for same r/v again later this week [984] 1. At that stage the Plaintiff described himself as being a mess and that he was confused, afraid, depressed and anxious, and was looking for some kind of medication to help stabilise him. It was in those circumstances he stated that Dr Halpin prescribed him some diazepam. He stated that he asked for that drug as he had taken it in the past and he knew it was good at numbing emotions. [985] 2. The Plaintiff was asked whether he remembered having a discussion with Dr Halpin about drugs for HIV/AIDS. He stated that he did and that the Ship's doctor prescribed him with sexually transmitted medication as a precaution. He stated that the Ship doctor informed him that when he got off the Ship he had to go to his GP and request the remainder of the prescription, because they couldn't give him more on board. The Plaintiff stated that it was a precaution with an option and he saw no reason not to take it. [986] He stated that he had reason to do so as sexually transmitted diseases can be contracted sometimes when wearing condoms and also from skin to skin contact. [987] The Plaintiff stated that he used protection, and that he didn't mention it in his evidence in chief because it wasn't asked of him. [988] 3. The Plaintiff stated that he also was given a mental health plan and went to see Eloise Woods on 1 December 2016. Ms Woods was a psychologist. [989] Thereafter, he was off for 3 weeks following the cruise and he was unable to communicate professionally or hold a conversation without breaking down. He said that the majority of the people he would speak to would ask him what was wrong because he was emotional. [990] The Plaintiff stated that thereafter he used cocaine and his consumption of alcohol increased dramatically, and most days he would be drinking and using. [991] He stated that he would take drugs and drink later in the day and would go to bars to drink alone. [992] He stated that he told Ms Woods how he was feeling and saw her on 8 December 2016. [993] He acknowledged that he saw Ms Woods twice in 2016 but he didn't go back to see her again until 2018. The reason for this, he said, was because the costs of forensic psychologists were extremely expensive and he had to work as well and her appointment times were challenging. [994] Instead he stated that he continued to see his GP from time to time. [995] The records of Ms Woods indicate that a consultation on 23 December 2016 was postponed as he was "very busy at work and finances are even tighter." [996] 4. In cross-examination the Plaintiff stated that he spent money on drugs and alcohol instead of going to see Ms Woods and that it helped him more to self‑medicate than speak to someone. [997] He conceded that he was drinking significantly more alcohol than what he had consumed before he left. When asked about his consumption of cocaine he stated that it had increased above the level he had done before the cruise. [998] 5. He stated that after he returned from his trip he didn't spend a lot of time with Mr Champion as he was in a new relationship and he'd just found out that he was having a first child. [999] The Plaintiff was then asked about discussing with Ms Woods in 2018 about the awakening and how that changed him. He accepted that he perceived to see himself as healing from challenges in his past. [1000] He accepted that many of those challenges preceded the cruise. [1001] When asked whether what happened on the cruise contributed to the awakening he stated that he thought it would have. [1002] He stated that the awakening triggered a change for the better but it wasn't immediate. He stated that he needed to improve and grow, that he wanted to live more harmoniously and that he wanted to improve his mental and physical health. [1003] He said that it was part of a process to get off drugs and alcohol and that he was aware that there was negativity in his workplace and he changed companies as well. [1004] The fact that he was at Frost Air Conditioning, which had a government contract which required drug testing, brought home the need for him to change and assisted him to that end. [1005] 6. On 2 December 2016 the Plaintiff saw Dr Nicole Sleeman who recorded as history as follows:- new relationship worried about his performance in bed currently anxious and depressed. Denies suicidality seeing a psychologist [1006] 1. The Plaintiff stated that Dr Sleeman, prescribed him some medication to assist him with sex called Cialis. He stated that he had met a girl at a bar who he was interested, however his emotional state was heavily impacting his ability to have intimacy. [1007] He stated that his sexual performance has been impacted to this day when "emotions like this come up", especially during the current proceedings, and couldn't think of being intimate with a woman. [1008] 2. The Plaintiff said that he saw another general practitioner, Dr Pramod Parmar, on 16 December 2016. Dr Parmar's notes record:- painful anal are exam ext haemorrid [sic] + if manly hospital also insomnia has psychologist adv r/v lmo, adv stict to one doctor , warned si Reason for contact Haemorrhoids Haemorrhoids Insomnia 1. The Plaintiff stated that Dr Parmar told him he was suffering from insomnia and was prescribed Temazepam. He said he was also taking Valium, which he had sourced without prescription. He would take the Valium after using cocaine to assist with sleep. [1009] 2. On 30 January 2017, the Plaintiff again went to see Dr Sleeman who recorded:- coughing, sore throat, fatigue etc. Onset 4 days ago. Felt hot and cold overnight. Didn't go to work for the last 4 days. Has felt depressed last few days because of an incident with his girlfriend. Denies suicidality. [1010] 1. The Plaintiff accepted that on 2 December 2016, being 12 days after he got back to Sydney, he had met a girl, was worried about his performance in bed and was given something to help him in that regard, and then he went back to his general practitioner with haemorrhoid problems. [1011] The Plaintiff stated that he did not remember telling Dr Sleeman that he felt depressed because he had an incident with his girlfriend. He stated that there was no relationship and they were just casually seeing each other. He accepted that in the middle of the two medical appointments with Dr Sleeman, between December 2016 and January 2017 he had the awakening incident with some other woman. He stated that she began as a dear friend, there was some intimacy then remained plutonic but they remained dear friends to this day. [1012] 2. It was put to the Plaintiff that within six or seven weeks of cruise ship, he'd overcome many of the anxieties associated with the cruise ship. The Plaintiff stated that the truth was that the reason that he met this girl was because he was attending pubs and clubs regularly. [1013] He rejected that the only concern that he had arising from his time on the Ship was what the police might do. [1014] He stated that he had concerns about the welfare of the two girls but because there was an investigation going on he felt that he should not try to make contact until the investigation was concluded, but he did have concerns about their welfare. [1015] It was then put to the Plaintiff that the only thing he was concerned about from January 2017 onwards in terms of the cruise ship was what the police might do. He stated that he was only concerned about healing himself, with concern about his mental state and was wondering how he was ever going to become healthy physically and mentally again. [1016] 3. When he went back to work, he stated that it was just before Christmas. [1017] He stated he was in tears in the car before he went to see a client, but couldn't take any further time off work as he had no more leave available. He stated it was difficult, took several days off every now and then, and would take unpaid leave when he could afford to and when his boss would allow it. He said his boss was understanding that he had no leave, but that it was difficult as Christmas was a busy period in air‑conditioning. [1018] He stated that he had to deal with many clients per day, and sometimes would sit in the car as he wasn't emotionally confident enough to go and speak to a client. [1019] He stated that more often jobs took longer and he was grateful for his boss who may have recognised that and not taken issue with it. [1020] 4. The Plaintiff was asked whether the day before calling the home doctor, being 28 March 2017, he had gone to see a doctor at his regular medical practice at Dee Why. He in fact is recorded as having seen Dr Michael Campbell on this day in respect of gonorrhoea and received vaccination and malaria prophylaxis as well as a urine test. [1021] 5. The Plaintiff stated that he couldn't recall seeing a Dr Campbell. [1022] Nor could he recall seeing a general practitioner around this time in relation to a sexually transmitted disease. [1023] He stated that he had contracted gonorrhoea in the past, but he could not remember having that conversation specifically in 2017. [1024] He accepted that it was possible that he gave a urine sample for testing for chlamydia or gonorrhoea or both. [1025] This was shortly before he left for India. He stated that it was possible that this was part of it as he wanted to be as healthy as possible travelling in third world countries and that there were a number of things he went to the doctor for. As part of that, he wanted to check on his sexual health. [1026] He stated that he met a girl at the end of 2017 that he was seeing until he left to go to India and was sexually active. That was the person who he was seeing at the beginning of 2017. [1027] He stated that whilst he was sexually active with this girl, it was casual and not a relationship as he knew he was going away, but it was something he valued. [1028] He stated that in early 2017 after he had been on the cruise he was having problems with his sexual performance, and part of the process of having the testing was to make sure that you were sexually healthy broadly. [1029] 6. On 29 March 2017 saw Dr Sean Carroll, home doctor, about anxiety. Dr Carroll recorded:- Stressors: upcoming solo overseas trip to India and surrounding for 7 months, also buying a house, broken engagement some time ago Was hyperaroused last night thinking of what still needs to be done Unable to sleep Has had anxiety before, always related to a situational trigger (eg relationship breakup),, for which he has been prescribed valium No thoughts of self harm / harm to others Is looking forward to decompressing on his trip and gaining a new perspective [1030] 1. The Plaintiff stated that he told Dr Carroll that he was going to go on an overseas trip to India and other places, and he was planning to be away for several months. [1031] At that point he stated that there were many triggers around him, he was in a very stressed state and was having panic attacks regularly. He would wake up from his sleep thinking that there was somebody standing over him. He was acquiring Valium without prescription, through friends of friends and although there might have been lengths of time between visiting doctors he was self-medicating. It was only during the times that he couldn't source the drugs that he would attend to a doctor to try and source them there. When he told Dr Carroll that he decided to go travelling he was in a pretty poor emotional state and thought that travelling would give him "some air to breathe, some room to breathe, away from the triggers". He stated that he went to India, went through Europe, over to the UK and then to Africa, which lasted about six months. [1032] Over that period of time, there was a slight reduction in his symptoms, though he was still partaking in heavy drug and alcohol consumption from time to time and would source drugs from unknown people in different countries. [1033] When he returned to Australia he returned to his job at Frost Air Conditioning, working on a full-time basis. [1034] 2. In cross-examination the Plaintiff stated that he had called the home doctors many times as sometimes his work hours consumed business hours of the medical centres and it was convenient. He did not specifically recall seeing a Dr Carroll nor did he recall him asking what stressors there were in his life at that point. Similarly, he didn't remember identifying a solo overseas trip to India as a stressor. [1035] He was asked whether he remembered telling the doctor who visited him at home on 29 March 2017 that the trip to India, buying a house and a broken engagement some time ago, were stressors in his life. He stated that he didn't remember the conversation. [1036] 3. On 21 November 2017, he went to see a Dr Soon complaining about anxiety and panic attacks. [1037] 4. On 1 February 2018 he saw Dr Wu and told him he was suffering panic attacks in relation to a court case. He stated that his friends were organising interventions for him, that he did make a change and that he knew he had to stop the drug use and the drinking. [1038] He was referred by Dr Woo to see Professor Woods on a mental health care plan. [1039] 5. In early 2018, he made the decision to move positions in Frost Air Conditioning to a government contract where he knew they had drug testing and that forced him to stop his drug use. That contract was with the railways and he started that contract in the early months of 2018 and he used that opportunity to assist to get off drugs and alcohol. He stated that since that time he has not taken drugs and no longer drinks. [1040] He stated that he still complained of symptoms of anxiety and panic attacks and remembers commencing a project management course at TAFE looking to progress his career, and that he was going to study that at night. He went to his doctor to get a letter of history of depression and anxiety and was submitted as a disability student at TAFE and would get more assistance than normal. He started the course but wasn't coping with the stress at work. As he was not being assisted by TAFE, he didn't complete the course. [1041] 6. The clinical notes tendered record that the Plaintiff in fact saw Dr Jennifer Wines on 25 July 2018 who recorded:- Anxiety on and off for years Diffiuclties with elarning [sic] at school never investigated ?? Add ?? Dyslexai [sic] Either way can be assisted at Afe [sic] here he is now studfying [sic]sic) with extra help letter support. [1042] 1. On 22 August 2018, the Plaintiff saw Dr Alfaro who referred him back to Ms Woods. [1043] Dr Alfaro's clinical notes record: anxiety had panic attack due to court case, memories resurfacing wants mental health plan referral to Stephen Woods, has seen them before tires since started work in railway tunnels 6 months ago [1044] 1. The Plaintiff stated that he saw Ms Woods two occasions on 23 August 2018 and 13 September 2018. He stated that at that point he brought up a lot of trauma that he was carrying and that he definitely needed to go back and see her. He stated that it was of assistance going to see her, albeit it expensive. [1045] 2. On 23 October 2018 he returned to see Dr Alfaro and stated that he was anxious due to flashbacks about being locked in a cabin after being accused of rape and that he needed a medical certificate. There were other unrelated issues also mentioned at the consultation. [1046] The Plaintiff stated that he took several days off from work and required a doctor's certificate on each occasion. [1047] 3. Thereafter, on 31 October 2018, saw a Dr Kallan, a general practitioner to tell her about the court case and how he was feeling. [1048] The clinical notes record:- last few days feeling anxiuos [sic] going thru a court case --will last mostof this year looking for a closure to it not keen for medications sees a regular forensic psychologist --elise --steven jwoods --manly psychiatrist --dr knutt -lindfield ---assessment --last wk [1049] 1. The Plaintiff stated that he saw an improvement of his symptoms in 2018, although triggers from ships, security, banging doors and stressful situations would lead to panic, anxiety and a depressive state. The improvement did, however, continue into 2018. He stated that he made a decision that working in the train network for Frost Air Conditioning was a negative atmosphere, and he thereafter decided to move to VSA, an airconditioning company, where he had a more enjoyable work atmosphere. He stated that that also helped him improve. [1050] 2. In 2019, the Plaintiff decided that towards the end of the year that he was going to stop working and go and do some travelling. He stated he wanted to travel up and see his mother and he wanted to spend some time in solidarity. He stated he wanted to complete this case and get closure on this event in his life, as he couldn't deal with the idea that he'd done something that was alleged. [1051] He stated that he only found out the investigation was over from the Marine Area Command. [1052] He stated that he never heard anything from the AFP regarding the matter, nor that they intended to bring charges. [1053] The Plaintiff stated that he ceased work in November 2019 and purchased a bus and renovated it so he could travel in it. He resigned from his position with VSA and has since been travelling in the bus up the coast of the eastern seaboard to Cairns. [1054] The Plaintiff stated that he has a reasonably lengthy relationship with a woman in 2019, but they both decided to go their separate ways and spend some time alone to grow individually and to heal. He stated that he now has a strong practice of yoga and meditation and he is aware that suppressing emotions or traumas from the past can carry on and continue. He described that so much of his life is now healing those traumas, expressing them and dealing with them and he was hopeful that the case would assist him to continue to improve. [1055] He stated that he continued to have some symptoms and that when people bring up sexual misconduct it makes him think of his experience. [1056] He stated that he is still triggered by stressful situations, feels distressed and depressed from time to time, and sometimes cannot find a reason why. He described that the panic attacks had lessened and the last one he had was prior to the psychiatric assessment. [1057] He stated that he would never be able to join his family and friends on a holiday on a cruise. [1058] 3. The Plaintiff stated that in November 2016 when he got off the boat and tried to resume his life, he did some searching of himself online and found a story of an alleged sexual assault on the Ship a week it had docked. He stated that it didn't have any specifics although it stated it was a nine day cruise, which was very similar to his, and was in the same area of the South Pacific. He was distraught that this story was about him. He said he had panic, anxiety and tears and didn't want to speak to anyone, including his family. He sent a copy of the article to Mr Champion and was afraid that this was going to progress, and should there be charges there would be media. He stated that was the only event. He thought that channel 7 News covered it, as well as a website that shares cruise news covered, but he didn't continue to search. [1059] Mr Champion 1. Mr Champion acknowledged that since the incident and his own additional responsibilities, he has had less to do with the Plaintiff since the trip. [1060] He has continued to socialise with him but could not comment on his drug use, alcohol consumption or his ongoing romantic relationships. 2. The Plaintiff did however discuss with Mr Champion his recent trip to India. Mr Champion stated that he thought the reasoning behind the trip was that the Plaintiff had a lot of soul-searching that he needed to do to figure out how could overcome who he used to be. He stated that he could not comment on the Plaintiff's financial status, situation or spendings. [1061] 3. Mr Champion acknowledged that for some time after the incident there was an ongoing police investigation concerning what had happened on the Ship and to his observation, this placed a heavy burden on the Plaintiff and that he was fearful of being charged. [1062] However, he stated that that was not the main focus of every discussion with him after the incident. [1063] He stated that the severity of the matter never changed once they found out what was going on and the Plaintiff had been detained on board for the rest of his trip. [1064] Dr Stephen Allnutt 1. The Plaintiff saw Dr Stephen Allnutt on the request of his solicitors on 24 October 2018. This was the subject of a report dated 19 November 2018. [1065] There was a follow up consultation on 22 September 2019, which is the subject of a report dated 30 September 2019. [1066] 2. In the report of 19 November 2018, Dr Allnutt opined that the Plaintiff presented with a manifestation of a constellation of symptoms of a post-traumatic nature, characterised by nightmares, flashbacks, panic attacks and distress when exposed to cues and reminders of the index injury, avoidance of those cues, increased irritability, a loss of interest in activities, social withdrawal, negative emotional state, poor concentration and sleep disturbance. Overall, he stated that these symptoms were found in people with a diagnosis of chronic post-traumatic stress disorder (PTSD). He opined that an argument could be made that the duration of the detention, the nature of the allegations, his fearfulness of being put into a prison in another country and his sense of potential harm to him as a result could be regarded as meeting Criterion A of the Diagnostic and Statistical Manual of Mental Disorders (DSM–V). If this were accepted, then a diagnosis of a chronic PTSD with associated depression would be applicable. Failing that, Dr Allnutt believed that he met the criteria for a major depressive episode with associated post-traumatic stress symptoms as the Plaintiff manifested sleep disturbance, reduced motivation, loss of capacity for pleasure and activities, variable appetite, diminished self-esteem, anhedonia, reduced interest in activities and poor concentration, of all which impact on his occupational and social functioning, with associated panic attacks in addition to the aforementioned PTSD symptoms. He opined that differential diagnosis could include a persistent depressive disorder with associated post-traumatic stress symptoms given the chronicity of his condition. [1067] 3. Dr Allnutt opined that since the incident in November 2016, he had been engaged in psychological treatment since then and his symptoms persist. He regarded the index injury as having stabilised given the passage of time. He stated that his prognosis would be guarded in the foreseeable future because of the persistence of symptoms despite treatment. 4. In terms of his work capacity, he noted that the Plaintiff works at a slower pace, sometimes has impaired attendance due to anxiety, is more irritable which impacts on the quality of his relationships with co-workers, has problems with concentration and experiences reduced motivation. He stated that it would be reasonable over the longer term that his employability could be undermined. In that sense he would regard him as partially impaired since the injury and that he will continue to be impaired in this manner as long as his symptoms persist at their current severity. 5. He recommended that the Plaintiff should see a psychologist for a duration and at a frequency to be determined in collaboration with the treating psychologist, depending on clinical need, envisaging that this would take the form of weekly to 2 weekly consultations over a period of 6 to 12 months depending on clinical response. He also opined that it would be necessary for the Plaintiff to see a psychiatrist for a duration and at a frequency to be determined in collaboration with the treating psychologist. He envisaged 4 to 6 weekly consultations with a psychiatrist until stabilisation on medication is obtained, with less frequent contacts thereafter, over a period of 6 to 12 months. He was concerned about the Plaintiff's use of diazepam, and stated that this should be reviewed by a psychiatrist. He also recommended that his general practitioner needs to monitor the Plaintiff's physical and mental states and undertake the usual investigations to rule out underlying physical causes of anxiety and depression. 6. In the follow up report of 30 September 2019, Dr Allnutt stated that the Plaintiff denied active symptoms consistent with chronic PTSD or depression, stating that in the past year he had stopped the use of cocaine and had been pursuing medication and a spiritual lifestyle which had made a significant impact on his symptomatology. He stated that the Plaintiff last experienced nightmares and panic attacks several months ago. He recorded that the Plaintiff's continued to attend to his activities of daily living, but had notably become more socially withdrawn. He stated, however, that this was a choice rather than social withdrawal driven by increased anxiety. Whilst his concentration had not returned to normal, there appeared to be some more fluctuating sleep disturbances and that the Plaintiff had become reclusive, he regarded this as a choice rather than it being driven by anxiety and depression. He recorded that the substance use disorder was now almost in full remission. He opined that there had been an improvement in his mental state, particularly when compared to the Plaintiff's presentation on the previous occasion. He noted that the prognosis was positive for the foreseeable future because of the improvement in his symptoms and the discontinuation of substances. He observed that his work capacity was adequate, in that he attended work regularly, he worked at a reasonable pace, his performance was good, he was not making significant errors and there were no conflicts. He stated that he was capable of part or fulltime work given his education, training individual characteristics. He opined that at this stage, given his presentation, he did not require psychiatric or psychological treatment, although he would recommend some monitoring regarding his thoughts of a spiritual nature. 7. The Plaintiff was taken to his consultation with Dr Allnutt on 24 October 2018. He stated that during the initial consultation he had an emotional breakdown in his office and his recollection of the meeting was not great. [1068] Dr John Chalk 1. Dr John Chalk examined the Plaintiff at the request of the Defendant's solicitors on 23 February 2020 2. He opined that the Plaintiff did not have an Axis 1 or recognised psychiatric disorder, but did have a long history of substance abuse, although not clear dependence. He was of the view that the background history of the Plaintiff was of a personality with significant narcissistic features. He stated that the prognosis was as it was in the past. He noted that the Plaintiff had an epiphany in 2017, although the relationship between that and the events on the cruise were, in his view, circumstantial. In his view the Plaintiff was fit to undertake any work for which he was suited by way of his training and experience. 3. He did note that in the aftermath of his experience, the Plaintiff described himself as very anxious and panicky, being worried about being locked up and terrified of what might happen to him. He noted that he took a month off work following the cruise, saw a psychologist in Manly on half a dozen occasions and was given some valium by his general practitioner. His employer was sympathetic, but ultimately the Plaintiff returned to work. 4. The Plaintiff gave evidence that he told Dr Chalk at the beginning of 2019 he began a new way of living. He stated that had an experience in early 2017 with a friend of his where he had a really amazing connection which he described as a spiritual awakening. That occurred on 1 January 2017. [1069] That spiritual awakening compromised of a deep sense of connection to himself, to the earth and to the people around him. He stated that he had a very solid connection with the girl that he'd spent the night with, and he felt they were able to sync and talk extremely similarly and know what the other person was going to say before they said it. [1070] It was put to the Plaintiff that he told Dr Chalk that they used alcohol and cocaine and had sex over 24 hours. He stated that he didn't believe that the girl used cocaine but he did, have sex over the period of 24 hours that they spent together. [1071] The Plaintiff conceded that he described to Dr Chalk auras and telepathic communication, which led him to question everything and resulted in him snapping out of a way of living. [1072] He accepted that he told Dr Chalk that he had been previously living as a narcissist. He stated that this was a person who valued materialistic things, valued money, tried to uphold appearances and was concerned with other people's judgments of him. He stated that he was self-conscious and his goals were always to achieve financial success and career success. [1073] Conclave 1. In a conclave report of 10 April 2020, Dr Allnutt maintained the view that the Plaintiff had developed a trauma or stressor related disorder, in the nature of either a PSTD or a chronic adjustment disorder as a consequence of the incident between 15 and 20 November 2016. He noted that in his earlier report an issue arose as to whether or not Criterion A was fulfilled but stated that a diagnosis of an adjustment disorder could be sustained if Criterion A was found not be fulfilled. He expressed the view that the Plaintiff was now in remission and a differential diagnosis would include a prior major depressive disorder and persistent depressive disorder. This was supported by the clinical notes provided following the incident. 2. Dr Chalk was of the view that the Plaintiff had not sustained a recognised psychiatric illness as a consequence of the events on the Ship. He acknowledged that Dr Allnutt had seen the Plaintiff closer to the time of the incident, but was not of the view that the Plaintiff had clearly developed an Axis 1 or recognised psychiatric injury as a consequence. He accepted that the Plaintiff was upset by both the detention and treatment that he received and that he was angry that he had been charged for services not provided subsequently. He noted that the Plaintiff believed that he had been treated prejudicially as a consequence and that he expressed a degree of fearfulness. Dr Chalk was not of the view that the Plaintiff in any way fulfilled Criterion A for PTSD. 3. As to the question as to whether the Plaintiff had any current recognised psychiatric injury causally related to the events on the Ship, Dr Chalk did not consider that the Plaintiff had a psychiatric illness causally related to the events. Dr Allnutt acknowledged that in the absence of ongoing symptoms when the Plaintiff saw Dr Chalk, such residual symptoms which he observed in September 2019 would be regarded as resolved. 4. Dr Allnutt was of the view that if the Plaintiff had not been involuntarily detained and was not exposed to any further unrelated significant stressors he therefore he would not have developed a recognised psychiatric illness. Dr Chalk reiterated that in his view the Plaintiff had not developed a recognised psychiatric illness as a result of the events. 5. Both Dr Allnutt and Dr Chalk noted that the Plaintiff had seen a psychologist in the aftermath of the events in question, but that he had not had any psychiatric treatment and had not taken any psychotropic medication, but over time had, from his account, ceased the use of illicit substances and alcohol. 6. Neither psychiatrist noted significant vulnerability in the Plaintiff's background, although Dr Chalk noted his past history of substance abuse, reported gambling difficulties and a degree of criminal activity including the supply of marijuana and cocaine. 7. Neither psychiatrist thought that the Plaintiff was incapacitated for work, from a psychiatric perspective, as a result of the events on the Ship at the time of their last assessments. Dr Allnutt, however, did note prior work-related difficulties in his report of 19 November 2018. Neither psychiatrist thought that the Plaintiff was in need of psychiatric treatment as a consequence of the events, although Dr Allnutt noted that he would recommend some monitoring regarding the Plaintiff's thoughts of a spiritual nature. 8. Neither psychiatrist opined that the Plaintiff required any domestic assistance or that he had any permanent disability as a consequence of the events. 9. So far as the litigation was concerned, Dr Allnutt was of the view that the litigation was a stressor with which the Plaintiff was coping. Dr Chalk was of the view that the litigation reflected anger at the way in which the Plaintiff was treated and his perception that his anger should assuaged in some way. Joint evidence session 1. In the joint evidence session, Dr Allnutt was asked about his identification as to the Plaintiff's experience meeting the standard Criterion A for PTSD. Specifically, he was asked about his reference to the Plaintiff's sense of potential harm as one of the factors meeting the criterion. Dr Allnutt stated that this was a general reference to things such as reputation, potential conviction, concerns about consequences to his life and him being discovered by A's mother meaning he had to be moved elsewhere. He stated that he was not speaking in specific terms but rather was speaking generally. [1074] 2. By reference to the factors he identified as meeting Criterion A, Dr Allnutt accepted that there were a multitude of factors that would indicate that there was a traumatic experience. [1075] He stated that in his original report, it wasn't clear whether the actual incident met the criteria and that it was open for discussion. He stated that there were elements, and that aspects of being detained in the middle of the ocean, in the middle of nowhere, being accused of a sexual assault that he didn't believe he had committed, without much representation in support and not knowing what's going to happen to him. He stated there was argument that this might have met Criterion A, although it does not meet the absolute definition, although the DSM‑IV does use the words of, "Include, but not limited to." [1076] He accepted that the various circumstances get close to satisfying Criterion A and it's open to debate whether all these circumstances get the Plaintiff over the line to satisfying Criterion A. [1077] 3. Dr Allnutt assumed some of the features, being that the fearfulness of being put into the prison in another country is not the responsibility of the Ship and the nature of the allegations were not the responsibility of the Ship. He was asked whether it was possible to slice up these various aspects and still come to a view as to whether Criterion A is approached. He stated that it was not his role as a psychiatrist to do that. He stated that there was a lot of subjectivity involved Criterion A and that one has to take into consideration that not everybody, by way of example, who's involved in an airplane accident gets PTSD. He stated it comes down to the person's subjective experience of it as to how they interpret their experiences and he would say that for him, whose fault it was, was irrelevant at the time. [1078] He stated that the stress occurred at the material time when he was being detained and it was during that period of time that the injury appears to have occurred. [1079] He stated that it was the entire experience that affected him and that it was his subjective experience that triggered the psychological response. [1080] Dr Allnutt was then asked whether two of the items he referred to, being for example the fearfulness of being put in prison another country, if this was put to one side whether it would make it more difficult to reach a conclusion in respect of Criterion A. Dr Allnutt stated that the less stressful the experience is the further it comes from Criterion A. [1081] 4. With reference to the diagnosis of an adjustment disorder, Dr Allnutt stated that that diagnosis had been made on the basis of the stress of being detained in the ocean. [1082] Dr Allnutt stated that that would be a significant stressor, and conceded that that would include his fearfulness of being put in prison in another country. [1083] It was next put to Dr Allnutt that if on the return to Australia when the detention had ended and the fearfulness of being put in to prison in another country had ceased, and there was a police investigation, that would be the ongoing stressor for the Plaintiff, together with the nature of the allegations and any anxiety associated with being the subject of a police investigation. Dr Allnutt conceded that this would be so however added that trauma would persist. [1084] 5. Dr Chalk stated that he was prepared to accept and concede that what occurred was undoubtedly upsetting but in his view, whilst the Plaintiff was upset, clearly troubled, and undoubtedly anxious, that did not constitute the development of a psychological illness. He did not accept that the circumstances described by Dr Allnutt arose to the threshold of a Criterion A event. He stated that he did not consider it was a Criterion A event, but conceded that it was possible in similar circumstances to develop an illness. [1085] 6. Dr Allnutt clarified that a stressor, whether it is a Criterion A has occurred that has gone and is diminished, it could still have the effect because it's triggered the onset of the condition. He stated that if it didn't meet Criterion A, then it would still be a trauma and stressor related condition, and would fall under his other diagnosis, which is possibly an adjustment disorder or an adjustment disorder of some nature, and there was also differential diagnosis of persistent depressive disorder with panic attacks. [1086] Dr Chalk stated that Dr Allnutt was quite correct in that the effects of the trauma can outlast the event. [1087] 7. Dr Allnutt was then asked if all the circumstances remained the same but the Plaintiff was only detained for a couple of days, being two or three days, whether the Plaintiff would still have suffered an adjustment disorder. Dr Allnutt stated that in actual fact that did not happen, and that all the factors interact with each other to aggravate each other. He stated it was difficult to give a definitive opinion, but he would say that the most significant stress for him would have been the unknown, and the fearfulness of being dropped off somewhere where he may have had to go to prison in another country. He thought that would have been the biggest stress for him, and would have been the consequences both with regard to where he was going to be taken and what might happen to him if he was charged. [1088] He stated that was compounded by the absence of confidence and support. [1089] He stated that being detained for two days would have been less stressful for the Plaintiff. [1090] When Dr Allnutt was asked if the detention was only two or three days compared to five days, whether he was of the view that the adjustment disorder would have been suffered anyway, he stated that it would. [1091] 8. Dr Allnutt was then asked about the Plaintiff's reference to Dr Chalk in February 2020 that he thought of himself as a narcissist and whether Dr Allnutt was of the opinion that he satisfies narcissism as a proper description. Dr Allnutt stated that most narcissists don't think there's anything wrong with them and that a history was required to demonstrate that the Plaintiff met the criteria for narcissistic personality disorder. He added that all persons are narcissists to a certain degree. [1092] 9. With reference to the Plaintiff's previous condition, Dr Allnutt accepted that the Plaintiff had substance use disorder, but did not adopt the description of him being "out of control." Dr Chalk agreed. Dr Allnutt thought that the Plaintiff appeared to be functioning on a daily basis reasonably well, although Dr Chalk opined that if presented to him for treatment he would be concerned about his capacity for self-control in light of what appeared to be self-destructive behaviour. [1093] 10. On behalf of the Plaintiff, Dr Allnutt was asked if the detention was for a longer period of time with other factors remaining the same, whether he would agree that the period of time beyond two or three days would contribute to the adjustment disorder. He stated that that stands to reason. [1094] He stated that he would regard the contribution as material as it did occur. [1095] Dr Chalk agreed that the the longer it went on, the more problematic it might become for the Plaintiff. [1096] 11. Noting that Dr Chalk did not agree with a diagnosis of an adjustment disorder, he was asked what sort of marked distress he would be looking for such a diagnosis. He stated that he'd looking for a clinical symptomatology that was present during that time and he did not think that he had this but he was anxious. He stated that he couldn't get a description from him of any significant vegetative symptoms during that time which would indicate that he'd developed a depressive illness or that anxiety had led to frank panic. [1097] Dr Chalk stated that when he saw the Plaintiff that he was clearly upset and that he had decided to go travelling, which was his way of dealing with the difficulty he was having. He stated that it seemed to him that the Plaintiff was endeavouring to escape from the situation in which he had found himself and to find himself. He stated that he didn't expect that he was necessarily going to find the answers that he wanted. [1098] In this respect, he stated that this was referable to experiences he had after the cruise where he had been in a long-term relationship for a period of time and decided that he needed to change his life. [1099] 12. Dr Chalk was then taken to the first report of Dr Allnutt where he described symptoms following the event on the Ship. His attention was also drawn to Dr Allnutt's view that the Plaintiff endorsed several depressive and anxiety symptoms, notably panic attacks. He was asked that if he accepted the history of the Plaintiff as accurate and the findings on examination, he would agree that the Plaintiff presented with a psychiatric disorder to Dr Allnutt. He stated that he thought there was a disparity with the history that Dr Allnutt recorded, the symptoms and that his mental state was actually fairly unremarkable. He accepted that the Plaintiff presented to Dr Allnutt with a constellation of symptoms and presented a history, but the mental state did not appear to him to be particularly abnormal. [1100] Dr Chalk maintained that he would not accept that the Plaintiff exhibited a psychiatric disorder. Rather, he stated that he presented with a lot of symptoms, had gone back to work for a period of time and was presenting with a number of difficulties at that time. He stated that his symptoms were that he was upset and anxious and undoubtedly troubled in worrying about what was going to happen to him. [1101] He clarified that symptoms did not necessarily mean symptoms of a psychiatric disorder. [1102] Dr Allnutt responded:- He described to me symptoms and he also described to me functional impairment. That is the fundamental basis for making a diagnosis of a psychiatric condition. You know, when a person presents with depression, anxiety, nightmares, poor concentration, difficulties with memory, loss of interest in socialising, withdrawal, panic attacks, being triggered by things that will affect - that affects their social functioning, interpersonal relationships, that is by definition at least a diagnosable psychiatric condition. The nature of that condition may be then argued amongst us as psychiatrists, but I'm very satisfied that when I saw him in 2018, based on information he provided to me, having the opportunity to interview him, he presented with a diagnosable psychiatric condition, it post-traumatic stress disorder or an adjustment disorder. You will note in my mental status examination, I pointed out that he had several depressive and anxiety symptoms and what I was referring to there was the symptomatology that he provided, which is consistent with what is required for a diagnosis of a trauma stressor related disorder, which is PTSD an adjustment disorder. I also noted he was anxious and his effect was flat. DSM-IV doesn't require a person to present in a particular way in mental status examination. The DSM-5 requires a person to just provide a history of symptoms consistent with what is in the DSM-5. And I'm very satisfied that when he saw me in 2018 that he described a constellation of symptoms that most psychiatrists would agree meets the diagnosis of a diagnosable psychiatric disorder. [1103] 1. Dr Chalk accepted that if there was an adjustment disorder, it would be hard to disagree with the general statement that the risk of relapse when exposed to reasonable stressors in the future depending on the nature and severity. [1104] 2. In reference to Dr Allnutt's view in the joint report that the Plaintiff was now in remission, Dr Chalk stated, in his view, that meant that a person had completely recovered from the effects of a psychiatric disorder. [1105] He stated that people can remain vulnerable. [1106] However, he added that you don't get a relapse of an adjustment disorder, but there may be other events in his life that may cause a similar constellation of symptoms. He would not say that was the same disorder. [1107] Dr Allnutt stated that if one ignores Criterion A then he could say that he has a diagnosable psychiatric condition as a consequence of a trauma and has a pre‑existing vulnerability to being traumatised more easily because of his prior depressive and anxiety vulnerability. He stated that he thought that the risk to further stressors was dependent upon how badly he reacts to those stresses and how impaired he might become. He stated that that couldn't be predicted was that he was at risk of having a recurrence. [1108] 3. Dr Chalk responded that PTSD has, for a lot of people, a fairly poor prognosis even in the best of treatment. An adjustment disorder, by contrast, is a disorder in relation to a discrete event or a series of events and people actually recover from that. People can be vulnerable to further episodes and the degree of vulnerability can continue, and that may be due to a whole host of factors. He stated that after one episode of a significant psychiatric illness, the risk of a further episode is increased, though the percentage is probably somewhat debatable. He stated that it doesn't mean that exposed to another series of events that that person will necessarily relapse or have a similar illness, and the point he was trying to make was that if someone, in the abstract, did develop a further adjustment disorder that may or may not be the same illness. He stated that they may have a similar constellation of symptoms, but it's not the same illness, and it may well have a different prognosis depending upon what has triggered it. [1109] 4. Next, Dr Chalk's attention was drawn to the fact that during cross-examination the Plaintiff requested a short break and then felt unable to continue. He was asked comment on whether that was genuine in the context of questioning concerning the circumstances which led to his detention. Dr Chalk stated that that would be keeping with the fact that the Plaintiff was describing feeling very upset and anxious about the experience and having to go back and relive it would be upsetting. [1110] Dr Allnutt stated that it was consistent with a person who had to relive an event who reacted emotionally to it and was consistent with an adjustment disorder or PTSD. He stated that it was consistent as one of the core features of post‑traumatic stress symptoms is that they manifest a vulnerability to triggers and stresses that are reminders of a prior traumatic experience, and it would be those kinds of stresses to which the Plaintiff would be most vulnerable to if he was ever accused again or if he was at risk of being re‑traumatised. [1111] He stated that some people with PTSD cannot watch TV that relates to the trauma because it triggers them and they can't go to the place where the trauma happened, they experience flashbacks and panic attacks, and avoid places that trigger them emotionally. He stated that the response was consistent a PTSD or adjustment disorder. [1112] Dr Allnutt added that if the Plaintiff was triggered and suffered a relapse or even if he suffers a new condition to which he is now more vulnerable, it depends on the severity of that condition and the nature of that condition as whether it would impact on his capacity to work. 5. He noted there was a reference to handwritten notes between 23 August 2018 and 13 September 2018 which refers to panic attacks, and it refers to what seems to be the types of triggers when engaged with lawyers all around the case. He stated that there was a note made by the psychologist on 28 August 2018 which was close to when he saw him and was therefore consistent with his presentation when Dr Allnutt prepared his report. He stated that this was the kind of thing that the Plaintiff is vulnerable to, and that he was vulnerable to in 2018 and was possibly the type of thing that happened when he gave evidence. [1113] Dr Chalk stated that meeting with lawyers, particularly when that's not something you have done before, is undoubtedly a very stressful event and that in and of itself produces a significant degree of anxiety. [1114] Submissions Plaintiff's Submissions 1. The Plaintiff accepted that it was a medical issue as to whether the Plaintiff sustained injury. It was contended that given the Plaintiff's presentation to medical examiners immediately after the event and intermittently thereafter and the content of his presentation was consistent with the Plaintiff having more than just suffered emotional hurt or distress. Attention was drawn to the following:- 1. Dr Allnutt provided evidence as to why the Plaintiff satisfies the diagnosis of post-traumatic stress disorder. Even if such disorder is not found to be the case, then the alternative diagnosis of an adjustment disorder would appear to be appropriate. 2. By 2020, the conclave believed that the Plaintiff had recovered from the effects of any psychological disorder. This however, is based upon an acceptance of the fact that the Plaintiff no longer has symptoms and is no longer any different to how he was before the accident. The Plaintiff has given contrary evidence. 3. Dr Allnutt in his evidence on 8 June 2020 indicated the plaintiff's breakdown in the witness box may well be an example of the "relapse" that he thought might arise in his report dated 30 September 2019. Dr Allnutt stated that by reason of the Plaintiff's experience, he remains vulnerable to triggers as identified in the psychology treatment notes from 2018. 4. The evidence of Dr Allnutt also indicates the Plaintiff is at risk of relapse. The Doctor accepted the Plaintiff's break down in the witness box was consistent with his vulnerability to triggers or reminders of his ordeal. 5. The Defendants attempt to suggest that a period of detention of 2-3 days was the cause of the Plaintiff's psychiatric condition is an attempt to suggest that if the initial period of detention was reasonable but not the subsequent period, the Plaintiff suffered no psychological injury. Dr Allnutt's evidence in this regard was that the subsequent detention was in any event a material contributor to the Plaintiff's injury. In those circumstances and in the absence of the Defendant untangling the contributors to the Plaintiff's injury, the Plaintiff is entitled to an award of damages to reflect his entire injury. [1115] 6. When approaching the awarding of damages for non-economic loss, one must be careful not to overcompensate the Plaintiff if the symptoms and disability arising from his assessed psychiatric condition is the same source of damages for embarrassment and hurt. Defendant's Submissions 1. The Defendant argued that there was insufficient evidence for any finding of a PTSD. The most Dr Allnutt seems to have suggested is that the Plaintiff suffers from an adjustment disorder which appears to have been in remission since at least a date in 2019. This is somewhat aggravated by the litigation itself which of course will soon come to a close. It submitted that there is a suggestion by Dr Allnutt as to some prospect of a future recurrence but no detail as to what form that may take, what may trigger it and its duration has been advanced. 2. The Defendant relied upon the opinion of Dr Chalk that, at most, the Plaintiff has suffered as a result of this is a degree of upset. 3. It was submitted that the more difficult issue, from the Plaintiff's perspective, is proving any causal connection between any tortious act on the part of the defendant and any injury. 4. Reference in this regard was made to the joint report, [1116] where Dr Allnutt has identified multiple causes for the Plaintiff's injury. It submitted that the Defendant is not responsible for:- 1. the making of any allegations against him; 2. apprehension that he may be disembarked into New Caledonia in circumstances where there is no complaint about that intention; and 3. fear and anxiety associated with the prospect of returning to Australia and being the subject of investigation by New South Wales Police. 1. The Defendant submitted that the police investigation was extant for many months and remained a continuing source of stress throughout. 2. The Defendant submitted that when asked if the Plaintiff would have developed the adjustment disorder he was diagnosed in circumstances where the confinement was a few days only, given the multiplicity of other factors, Dr Allnutt said yes. It submitted that the consequence of that is that if the confinement was lawful for a couple of days, which it submitted was not the focus of the Plaintiff's case, and take into account all of the other stressors operating on the mind of the Plaintiff for which Royal is not responsible (the allegations and the investigation and the risk of disembarkation), it was submitted that the threshold set out in Watts v Rake, [1117] is made good. It submitted that the court should find that even if confinement was unreasonable from 17 November 2016 onwards, a finding which the Defendant strongly resisted, then the additional confinement was not a cause of any recognised psychiatric damage. Consideration 1. Mr Champion's observations of the Plaintiff following return from the cruise can be given little weight bearing in mind his evidence of limited contact with the Plaintiff following return from the cruise. 2. Much of the Plaintiff's contention of suffering a recognised psychiatric injury rested on his own complaints and symptoms. There is evidence that used drugs and alcohol prior to his confinement and to the extent he continued to use after his return, I am not satisfied that this or any uptake of smoking was due to the confinement. 3. The Plaintiff's evidence that the predominant cause of his anxiety was the triggers and panic attacks he was getting similar to that experience he undergone, including males with dark complexion, security, authorities, ships and banging doors which would all trigger anxiety and panic. That evidence, however, was not supported by the clinical notes of his treating doctors. Dr Haplin on 21 November 2016 in fact recorded that the Plaintiff was vague of detail and the matters recorded were relevant to the risk of infection. There are no records from Ms Woods from 1 and 8 December 2016 and no follow up with the practice until 2018. Dr Sleeman and Dr Parmar in their consultations make no record of any history relating to the Plaintiff's confinement. On 30 January 2017, Dr Sleeman recorded that the Plaintiff felt depressed because of an incident with his girlfriend. On 29 March 2017 reported many stressors to Dr Carroll but none again related to the circumstances of his confinement. Whilst I am conscious of the caution to be applied in acceptance of medical records the pattern that I have referred to across the period immediately following the Plaintiff's confinement provides little support to the Plaintiff's claims. Whilst the Plaintiff did see Ms Woods again in 2018 this appears related to his decision to initiate Court proceedings with the notes on 23 August recording panic attack "all around the case", noting that he needs a medico legal report. In the follow up appointment on 13 September 2018, it was recorded that he would be referred on however there is no evidence as to whether this occurred. Thereafter there were the consultations with Dr Alfaro and Dr Callan noting a subsequent improvement in his symptoms. Overall, the Plaintiff has had little by way of treatment and I am not satisfied that what treatment he has had was causally related to his confinement. Dr Allnutt does not appear to have made any detailed reference to the paucity of the medical history in coming to his diagnosis. To the extent that he reported a history of various symptoms provided by the Plaintiff, few of these are replicated in the clinical records referred and none record a history related to his confinement. Dr Allnutt's opinion is dependent on the Plaintiff's history which I am unable to accept as reliable. 4. Overall, I prefer the evidence of Dr Chalk who found that what occurred was undoubtedly upsetting and may have given rise to some anxiety but did not constitute a psychological illness. Specifically, I accept that Dr Chalk looked for clinical symptomatology that was present during that time and he couldn't get a description from him of any significant vegetative symptoms which would indicate the Plaintiff developed a depressive illness or anxiety that led to panic. To the extent that the Plaintiff had anxiety arising from confinement I am satisfied that it was of a relatively short duration following his return and I am not satisfied his condition amounted to either an adjustment disorder or PTSD. 5. Beyond non-economic damages the Plaintiff also claimed $3000 in respect of three weeks that he had off work before he resumed. There was no claim advanced in respect of any time off subsequent to that. He stated that he could not take any further time off as he had no further leave available. The Plaintiff's calculation of net earnings was based on the contents of the Plaintiff's Notice of Assessment for the year ended 10 June 2016. [1118] 6. Quite apart from its contentions as to injury the Defendant asserted that there was no evidence of specific diminution in the past. [1119] The Plaintiff's evidence was that he took leave and did not substantiate that there was a loss of earning capacity. Nor is there any medical evidence that he was incapacitated. 7. The Plaintiff claimed $4,322 for past out of pocket expenses. No receipts were provided. [1120] 8. This claim again has not been substantiated and I would make no allowance. 9. The Plaintiff claimed a buffer for the future of $50,000. In written submissions it was argued that it compensates the Plaintiff for the possibility that a relapse occurs that incapacitates him for periods of time particularly since he is a young man. 10. Based on my findings I would make no allowance in this respect. ORDERS 1. For these reasons I would order:- 1. Verdict and judgment for the Plaintiff in the sum of $97,344 2. Subject to any application to my Associate by 1 February 2021, to relist the matter for any further or other order as to costs the Defendant is to pay the Plaintiff's costs. ***NOTE: There were a number of typographical errors in the decision handed down to the parties on 22 December 2020. A document of errata was produced by the Court and agreed on by the parties. These agreed changes have been reflected in this judgment.*** Endnotes 1. VD Exhibit 2. 2. T 26.42-.45. 3. T 298.28-.40. 4. Further Amended Defence at [1]. 5. Further Amended Defence at [1]. 6. Further Amended Defence at [2] 7. Further Amended Defence at [5]-[5A]. 8. Further Amended Defence at [6]. 9. T 73.28-.36 and T 222.10-.19; r 31.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). 10. Exhibit B. 11. Exhibit C. 12. Exhibit A1, Tab 1 at 46, [3]. 13. Exhibit B at [6]. 14. Exhibit 2. 15. Exhibit 2 at [5]. 16. Exhibit 3. 17. Exhibit 5. 18. Exhibit 6. 19. Exhibit 7. 20. Exhibit 4. 21. Exhibit 4 at [4]-[5]. 22. Exhibit A1. 23. Exhibit A1, Tab 1 at 62. 24. Exhibit A1, Tab 1 at 15. 25. Exhibit A1, Tab 1 at 28. 26. Exhibit A1, Tab 27 at 575. 27. Exhibit A1, Tab 1 at 42. 28. Exhibit A1, Tab 52 at 932 29. Exhibit A1, Tab 39 at 757; Exhibit A1, Tab 53 at 942; Exhibit A1, Tab 54 at 951. 30. T 46.37-.39. 31. T 46.45-47.04. 32. T 47.19-.31. 33. T 128.20-.31. 34. Exhibit A1, Tab 7 at 435; T 47.41-.44. 35. Exhibit A1, Tab 10 at 445. 36. T 47.46-.49. 37. T 114.42-115.08. 38. T 184.05-.08. 39. T 48.01-.03. 40. T 48.05-.13; T 183.01-.04. 41. T 52.45-.46. 42. Statement of Claim at [5]; Further Amended Defence at [2]. 43. T 52.48-53.21. 44. T 182.25-.44. 45. T 182.48-.49. 46. T 183.06-.11. 47. T 183.13-.14. 48. T 183.31-.35. 49. T 183.37-.42. 50. T 183.44-184.25. 51. Exhibit 3 at [32]. 52. T 274.41-.49. 53. T 275.01-.20. 54. Exhibit A1, Tab 1 at 46, [4]. 55. T 111.40-112.32. 56. T 112.49-113.24. 57. T 113.36-.43. 58. T 114.02-.07. 59. T 114.09-.12; T 128.49-129.02. 60. T 114.14-.37. 61. T 115.10-.27. 62. T 175.42-176.01. 63. T 275.29-.47. 64. T 276.03-.08. 65. T 276.18-277.12. 66. T 53.23-.29. 67. T 53.35-.40. 68. T 53.42-.44. 69. T 54.06-.13. 70. T 54.15-.20. 71. T 54.31-.36. 72. T 54.43-.47. 73. T 55.06-.07. 74. T 55.09-.11. 75. T 55.13-.19. 76. T 55.21-.23. 77. T 55.25-.29. 78. Exhibit A1, Tab 1 at 46-7, [5]. 79. T 279.50-280.06. 80. T 279.09-.12. 81. T 279.14-.16. 82. Exhibit B at [6]-[11]. 83. T 237.24-.40. 84. T 237.42-.46. 85. T 238.01-.02. 86. T 238.44-239.24. 87. T 239.34-.35. 88. T 239.37-.40. 89. T 239.42-.44. 90. T 240.27-.34. 91. Exhibit B at [11]. 92. T 240.43-.45. 93. T 241.03-.05. 94. T 241.07-.09. 95. T 241.44-.50. 96. T 242.02-.22. 97. Exhibit B at [12]. 98. Exhibit B at [13]-[14]. 99. Exhibit 4 at [7]-[18]. 100. Exhibit 4; Exhibit AC-1 at 9 and 15. 101. Exhibit 4 at [19]. 102. T 55.35-56.05. 103. T 56.07-.08. 104. T 56.17-.43 105. Exhibit A1, Tab 1 at 47, [6]. 106. T 242.35-.43. 107. T 243.07-.13. 108. T 243.15-.46. 109. T 243.48-.49. 110. T 244.01-.06. 111. T 244.08-.12. 112. T 244.14-.16. 113. T 244.39-.47. 114. Exhibit B at [15]. 115. T 245.03-.16. 116. T 56.45-57.17; Exhibit B at [15]. 117. T 57.23-.25; T 123.37-.42. 118. T 129.04-.07. 119. T 129.09-.10. 120. T 129.12-.34. 121. T 127.40-.45. 122. T 127.47-.50. 123. T 123.28-.32. 124. T 124.04-.11; T 149.05-.15. 125. T 57.27-.30. 126. T 57.36-.49. 127. T 58.01-.12. 128. T 58.20-.24. 129. T 58.26-.32. 130. T 57.47-.49. 131. T 58.34-.36. 132. T 59.01-.05. 133. T 59.13-.19. 134. T 59.21-.25. 135. T 59.27-.28. 136. Exhibit B at [16]. 137. Exhibit B at [17]. 138. T 247.27-.31. 139. T 247.33-.35. 140. T 247.45-248.04. 141. T 248.06-.19. 142. T 248.21-.23. 143. T 249.06-.20. 144. T 250.37-.49. 145. T 251.43-.45. 146. T 253.32-.38. 147. T 253.45-.46. 148. T 253.48-254.07. 149. T 254.45-.49. 150. T 59.39-.42. 151. T 60.01-.11. 152. T 60.13-.17. 153. T 130.16-.19. 154. T 130.40-.43. 155. T 131.23-.27. 156. T 131.39-132.05. 157. T 132.25-.27. 158. T 132.33-.36. 159. T 132.38-.39. 160. T 132.45-.50. 161. T 133.01-.11. 162. Exhibit B at [18]. 163. T 60.19-.22. 164. T 60.33-.40. 165. T 60.50-61.01. 166. T 61.03-.05. 167. T 61.07-.10. 168. T 61.12-.16. 169. T 61.29-.32. 170. T 61.38-.41. 171. T 61.46-62.02. 172. T 62.05-.10. 173. T 62.15-.25. 174. T 62.27-.30. 175. T 62.36-.49. 176. T 63.01-.03. 177. T 63.11-.16. 178. T 133.13-.30. 179. T 134.01-.10. 180. T 134.16-.20. 181. T 134.22-.35. 182. T 135.05-.06. 183. T 135.09-.14. 184. T 135.16-.21. 185. T 135.26-.28. 186. T 135.30-.35. 187. T 135.37-.39. 188. T 135.41-.42. 189. T 135.44-.46. 190. T 63.18-.29. 191. T 63.31-.36; T 136.07-.10. 192. T 136.28-.30. 193. T 63.38-.49; T 136.32-.34. 194. T 64.01-.04. 195. Exhibit A1, Tab 3 at 337. 196. T 126.10-.47. 197. T 127.28-.31. 198. T 127.33-.35. 199. T 106.40-.42. 200. T 106.47-.48. 201. T 107.03-.12. 202. T 129.36-.42. 203. T 129.44-.47, 204. T 129.49-130.03. 205. T 130.08-.10. 206. Exhibit B at [19]. 207. Exhibit A1, Tab 14 at 524-6. 208. Exhibit A1, Tab 1 at 32. 209. T 255.01-.15. 210. T 255.35-.40. 211. T 255.45-.47. 212. T 255.49-.50. 213. T 256.02-.05. 214. T 269.19-.23. 215. T 269.25-.33. 216. T 269.35-.36. 217. T 256.31-257.21. 218. T 257.37-.44. 219. T 257.46-258.10. 220. T 258.19-.24. 221. T 258.33-.35. 222. T 258.37.-42. 223. T 281.15-.23. 224. T 281.36-.39. 225. T 282.11-.14. 226. T 282.16-.18. 227. UTC +11 (NCT). 228. T 472.11-.23; Exhibit 7 at [8]. 229. Exhibit A1, Tabs 19 and 20. 230. Exhibit A1, Tab 20 at 548. 231. Exhibit 7 at [8]. 232. Exhibit 7 at [9]; Exhibit 7, Exhibit PS-1 at 1-2. 233. T 472.25-473.32. 234. T 473.41-.46. 235. T 476.08-.20. 236. T 476.22-.25. 237. T 476.31-477.01. 238. T 477.03-.07. 239. T 477.13-.24. 240. Exhibit A1, Tab 1 at 55. 241. Exhibit 4 at [23]. 242. Exhibit 4, Exhibit AC-1 at 18. 243. Exhibit 4, Exhibit AC-1 at 19. 244. Exhibit 4, Exhibit AC-1 at 20. 245. Exhibit 4, Exhibit AC-1 at 21. 246. Exhibit 4, Exhibit AC-1 at 27. 247. Exhibit 7 at [10]-[11]; T 477.13-.24. 248. Exhibit A1, Tab 16 at 532. 249. Exhibit A1, Tab 16 at 533. 250. T 479.03.-11. 251. T 479.13-.16. 252. T 479.24-.28. 253. T 480.07-.12. 254. T 480.20-.24. 255. T 480.26-.45. 256. T 481.25-.27. 257. T 482.01-.12. 258. T 482.14-.24. 259. T 483.26-.29. 260. T 483.34-.39. 261. T 485.25-.47. 262. T 485.49-486.08. 263. T 486.10-.32. 264. T 487.26-.30. 265. T 487.36-.41. 266. Exhibit A1, Tab 18 at 540. 267. Exhibit A1, Tab 18 at 542. 268. Exhibit 7 at [12]; Exhibit 7, PS-1 at 6-14. 269. Exhibit 7 at [13]. 270. Exhibit A1, Tab 1 at 55. 271. Exhibit 7 at [14]; Exhibit 7, PS-1 at 15. 272. Exhibit A1, Tab 1 at 55; Exhibit A1, Tab 17 at 538; Exhibit 7, PS-1 at 24. 273. Exhibit A1, Tab 17 at 536. 274. T 259.10-.12 275. Exhibit A1, Tab 14 at 524. 276. Exhibit A1, Tab 14 at 526. 277. Exhibit B at [21]. 278. T 260.04-.07. 279. T 260.38-.42. 280. T 260.44-.46. 281. T 264.27-.29. 282. T 265.35-.41. 283. This question asked whether there was "anyone else who might have important information about this incident? Provide their names." 284. T 261.21-.25. 285. T 265.43-266.03. 286. Exhibit 7 at [16]-[17]. 287. Exhibit A1, Tab 1 at 56. 288. Exhibit A1, Tab 15 at 528 289. Exhibit A1 at 529-30. 290. Exhibit 7 at [18]. The CCTV footage was later tendered as Exhibit E. 291. Exhibit A1, Tab 37 at 672 and Exhibit 7, Exhibit PS-1 at 3. 292. Exhibit 7 at [9]; Exhibit 7, PS-1 at 1-5; Exhibit A1, Tab 37 at 672-674. 293. Exhibit 7 at [15]; Exhibit 7, PS-1 at 16-24. 294. T 488.41-489.40. 295. T 489.37-490.01. 296. Mr Sreedharan's statement incorrectly states that this occurs at 2.37pm. The email was sent at 10.44pm on 14 November 2016 EST, which is 2.44pm on 15 November 2016 AEST. See Exhibit 7, PS-1 at 26-7; Exhibit 5; Exhibit IW-1 at 20-1. 297. Exhibit 7 at [20]; Exhibit 7, PS-1 at 26-27. 298. T 490.20-.491.01. 299. Mr Sreedharan's statement incorrectly states that this occurs at 1.56pm. The email was sent at 10.56pm on 14 November 2016 EST, which would be 2.56pm on 15 November 2016 AEST. See Exhibit 7, Exhibit PS-1 at 25; Exhibit 5, Exhibit IW-1 at 22. 300. Exhibit 7, PS-1 at 25. 301. Mr Sreedharan's statement incorrectly states that this occurs at 2.53pm. The email was sent at 10.44pm on 14 November 2016 EST, which would be 2.44pm on 15 November 2016 AEST. See Exhibit 7, Exhibit PS-1 at 28; Exhibit 5; Exhibit IW-1 at 22. 302. Exhibit 7 at [21]; Exhibit 7, PS-1 at 28-32. 303. Exhibit 7 at [22]. 304. Exhibit 3 at [6]. 305. Exhibit 3 at [7]. 306. Exhibit 3 at [8]. 307. Exhibit 3 at [9]. 308. Exhibit 3 at [10]. 309. Exhibit 3 at [11]. 310. Exhibit 3 at [12]. 311. Exhibit 5 at [4], limited to his understanding pursuant to s 136 of the Evidence Act 1995 (NSW) (the 1995 Act). 312. Exhibit 5 at [6]. 313. Exhibit 5 at [8]. 314. Exhibit 5 at [10]. 315. T 396.03-.13. 316. Exhibit 5, IW-1 at 21. 317. Exhibit 5, IW-1 at 22. 318. Exhibit 5 at [11]-[15]. 319. Exhibit 5 at [16]. 320. Exhibit 5 at [17]. 321. Exhibit 5 at [18]. 322. 00.56am on 16 November 2016 UTC-5 (EST), where Mr Warder was located. 323. Exhibit 5, Exhibit IW -1 at 145-6 324. Exhibit 5 at [23]-[26]; Exhibit 5, Exhibit IQ-1 at 149-153. 325. T 386.37-387.05. 326. T 387.07-.10. 327. T 388.16-.23. 328. T 388.25-.31. 329. T 388.46-389.15. 330. T 389.43-.37. 331. T 389.49-390.17. 332. T 390.24-.30. 333. Exhibit 5 at 41. 334. T 391.35-.49. 335. Exhibit 7; Exhibit PS-1 at 1-2. Also referred to at [84]. 336. T 394.03-.12. 337. T 394.20-.25. 338. T 395.04-.09. 339. T 395.11-.24. 340. T 395.36-.45. 341. T 397.47-398.10. 342. T 398.38-.42. 343. T 399.04-.15. 344. T 399.17-.24. 345. T 400.13-.20. 346. T 400.26-.41. 347. T 401.28-.44. 348. T 401.46-.48. 349. T 402.49-403.04. 350. T 403.21-.26. 351. T 403.28-.32. 352. T 403.34-.42. 353. T 404.31-.35. 354. T 404.37-.44. 355. T 404.46-405.04. 356. T 405.40-.43. 357. T 405.45-.50. 358. T 407.13-.24. 359. T 409.11-.27. 360. T 64.06-.08. 361. T 64.13-.19; T 156.28-.32. 362. T 64.21-.22. 363. T 64.24-.26. 364. T 64.28-.29. 365. T 64.31-.36. 366. T 64.38-.46. 367. T 64.48-65.05. 368. T 137.07-.25. 369. T 137.27-.37. 370. T 65.13-.17. 371. T 65.19-.24. 372. T 156.21-.26. 373. T 65.30-.47. 374. T 66.10-.13. 375. T 66.19-.21. 376. T 67.12-.16. 377. T 66.23-.25. 378. T 66.30-.35. 379. T 66.37-.39. 380. T 66.41-.49. 381. T 67.04-.10. 382. T 67.12-.16. 383. T 67.18-.23. 384. T 67.25-.28. 385. T 179.14-.20. 386. T 179.26-.30. 387. T 179.32-.35. 388. T 179.37-.38. 389. T 158.48-159.01. 390. T 156.50-157.04. 391. T 158.15-.30. 392. T 157.06-.09. 393. T 157.11-.13. 394. T 157.15-.17. 395. T 157.15-.20. 396. T 157.22-.23. 397. T 180.10-.15. 398. T 180.17-.18. 399. T 159.18-.27. 400. T 157.25-.37. 401. T 157.39-.41. 402. T 157.43-.47. 403. T 157.49-158.02. 404. T 67.30-.34. 405. T 67.36-.37. 406. T 159.03-.11. 407. T 179.40-180.01. 408. T 68.01-.07. 409. T 180.03-.05. 410. T 67.39-.40. 411. T 67.42-.43. 412. T 67.45-.47. 413. T 180.26-.41. 414. T 180.43-.48. 415. T 180.50-181.02. 416. T 181.17-.22. 417. T 181.24-.27. 418. T 181.43-.46. 419. T 182.12-.23. 420. T 123.06-.32. 421. T 123.34-.47. 422. T 123.49-124.02. 423. T 124.04-.06. 424. T 124.09-.11. 425. T 149.21-.26. 426. T 283.09-.33. 427. T 283.35-.38. 428. T 284.07-.22. 429. T 284.43-285.09. 430. T 287.49-288.06. 431. T 288.13-.19. 432. T 288.28-289.02. 433. T 289.04-.38. 434. T 290.03-.17. 435. T 286.22-.28. 436. Exhibit A1, Tab 1 at 49, [13]. 437. T 290.24-291.03. 438. T 291.18-292.29. 439. T 297.41-198.05. 440. Exhibit 3 at [14]-[15]. 441. Exhibit 3 at [18]. 442. T 366.09-.13. 443. T 367.22-.24. 444. T 368.06-.09. The email is to be found at Exhibit 5, Exhibit IW-1 at 21 445. T 368.16-.20. 446. T 368.31-.45. 447. T 369.04-.09. 448. T 369.20-.26. 449. T 369.44-.50. 450. T 370.02-.05. 451. T 370.35-.38. 452. T 370.40-.43. 453. Exhibit 3 at [32]. 454. T 363.25-.28. 455. T 365.23-.27. 456. T 365.29-.41. 457. T 374.22-.26. 458. T 374.28-.31. 459. T 374.33-.36. 460. T 374.38-375.01. 461. T 375.03-.08. 462. T 375.10-.16. 463. T 375.18-.32. 464. T 375.34-.41. 465. Exhibit 2 at [6]. 466. Exhibit 2 at [7]. 467. Exhibit 2 at [8]. 468. Exhibit 2 at [9]. 469. Exhibit 2 at [10]-[11]. 470. Exhibit 2 at [12]. 471. Exhibit 2 at [14]. 472. Exhibit 2 at [15]. 473. T 347.36-.39. 474. T 347.44-.46. 475. T 348.01-.03. 476. T 348.05-.07. 477. T 348.09-.15. 478. T 310.05-.08. 479. T 310.15-.23. 480. T 310.41-44. 481. T 313.26-.45. 482. T 313.40-314.15. 483. T 314.27-.32. 484. T 314.34-.39. 485. T 314.41-.47. 486. T 314.49-315.03. 487. T 315.11-.17. It should be noted that the Plaintiff's counsel asked whether Ms Strydom had "found the plaintiff". This is believed to be in error, and based on the context of the questioning, it is highly likely this was meant to be a reference to A. 488. T 315.19-.24. 489. T 315.26-.27. 490. T 315.35-.38. 491. T 315.40-.45. 492. T 315.47-.50. 493. T 316.02-.08. 494. T 316.10-.11. 495. T 316.13-.17. 496. T 316.48-317.01. 497. T 317.18-.28. 498. T 317.33-.35. 499. T 317.49-318.02. 500. T 318.12-.17. 501. T 318.19-.24. 502. T 318.32-.38. 503. T 318.40-.42. 504. T 318.44-319.07. 505. T 319.09-.11. 506. T 319.17-.20. 507. T 319.31-320.02. 508. T 320.04-.36. 509. T 320.38-.40. 510. T 323.08-.13. 511. T 323.15-.29. 512. T 323.49-324.12. 513. T 324.18-.22. 514. T 324.33-.35. 515. T 324.37-.40. 516. T 324.48-.50. 517. T 325.15-.18. 518. T 325.25-.31. 519. T 325.33-.35. 520. T 327.46-.48. 521. T 328.07-.09. 522. T 328.16-.18. 523. T 328.23-.25. 524. T 331.43-332.02. 525. T 332.49-333.07. 526. T 333.09-.14. 527. T 333.16-.23. 528. T 335.24-.29. 529. T 337.32-.37. 530. T 337.44-338.02. 531. T 338.23-.32. 532. Exhibit 2; Exhibit RS-1 at 11. 533. T 340.01-.08. 534. T 340.10-.16. 535. T 340.45-.46. 536. T 340.48-341.18. 537. T 341.20-.38. 538. T 341.40-.42. 539. T 341.49-342.01. 540. T 342.03-.07. 541. T 343.40-.46. 542. T 344.03-.27. 543. T 344.40-345.09. 544. T 345.16-.18. 545. T 346.18-.21. 546. T 346.37-.39. 547. T 346.41-.44. 548. T 346.46-.48. 549. T 346.50-347.13. 550. Exhibit 7 at [23]. 551. T 490.03-.09. 552. T 490.11-.13. 553. T 491.07-.20. 554. T 491.22-.24. 555. T 491.26-.29. 556. T 491.31-.36. 557. T 492.07-.10. 558. Exhibit A1, Tab 37 at 674; Exhibit 7, Exhibit PS-1 at 5. 559. T 68.12-.19. 560. T 68.21-.23. 561. T 69.41-.42. 562. T 69.44-.47. 563. T 69.49-70.08. 564. T 70.12-.18. 565. T 70.20-.34. 566. T 70.36-.42. 567. T 70.44-71.07. 568. T 71.12-.13. 569. Exhibit A1, Tab 12 at 469. 570. T 162.07-.09. 571. T 162.15-.20. 572. T 162.22-.26. 573. T 162.28-.31. 574. T 162.33-.41. 575. T 149.28-.35. 576. T 150.31-.42. 577. T 151.17-.22. 578. T 151.30-.33. 579. T 151.41-.45. 580. T 151.47-.49. 581. T 152.09-.15. 582. T 152.20-.22. 583. T 152.24-.26. 584. T 152.28-.30. 585. T 152.40-.42. 586. T 152.44-.46. 587. T 153.18-.30. 588. T 153.35-.39. 589. T 154.24-.34. 590. T 154.36-.38. 591. T 155.11-.20. 592. T 155.22-.25. 593. T 155.27-.28. 594. T 136.40-137.05. 595. Exhibit 4 at [29]-[31]. 596. Exhibit B at [23]. 597. Exhibit B at [24]. 598. T 261.45-262.08. 599. T 262.38-.39. 600. T 263.35-.42. 601. T 263.50-264.04. 602. Exhibit B at [25]. 603. Exhibit A1, Tab 1 at 29-30 at [9]. 604. Exhibit 4 at [24] and Exhibit AC-1 at 25-6. 605. Exhibit 7, Exhibit PS-1 at 33. 606. Exhibit A1, Tab 21 at 552. 607. Exhibit A1, Tab 23 at 559. 608. Exhibit A1, Tab 22 at 556. 609. Exhibit A1, Tab 24 at 563. 610. Exhibit A1, Tab 25 at 567. 611. Exhibit A1, Tab 27 at 575. 612. Exhibit A1, Tab 26 at 571. 613. Exhibit 2 at [17], Exhibit 3 at [19] and Exhibit 7 at [25]. 614. Exhibit 2 at [ 18] and Exhibit 3 at [20] 615. Exhibit 2 at [17]-[18]. 616. Exhibit 2 at [19]. 617. Exhibit 2 at [20]. 618. Exhibit 2 at [21]. 619. Exhibit A1, Tab 2 at 221. 620. Exhibit 3 at [23]. 621. T 71.20-.25. 622. T 71.31-.41. 623. T 71.43-.47. 624. T 72.04-.12; T 164.34-165.02. 625. T 165.05-.19. 626. T 165.40-.44. 627. T 72.29-.34. 628. T 72.40-.45. 629. T 165.46-.50. 630. T 166.40-.45. 631. T 166.47-49. 632. T 167.01-.02. 633. T 167.04-.06. 634. T 167.08-.12. 635. T 167.14-.17. 636. T 159.41-.45. 637. T 160.31-.34. 638. T 161.36-.38. 639. T 162.43-.48. 640. T 163.21-.26. 641. T 163.34-.39. 642. T 164.08-.17. 643. T 164.25-.28. 644. T 163.45-164.06. 645. T 162.50-163.03. 646. T 163.05-.08. 647. Exhibit A1, Tab 2 at 131, 171, 174-5, 178, 311 and 316. 648. Exhibit A1, Tab 2 at 149-50. 649. Exhibit A1, Tab 2 at 151 and 222. 650. Exhibit A1, Tab 2 at 184-5. 651. Exhibit A1, Tab 42 at 901. 652. Exhibit A1, Tab 42 at 902. 653. Exhibit A1, Tab 43 at 904. 654. Exhibit A1, Tab 2 at 186 655. Exhibit A1, Tab 2 at 78-9. 656. Exhibit A1, Tab 2 at 318-321. 657. Exhibit A1, Tab 2 at 205-208. 658. Exhibit A1, Tab 2 at 204-5, 277, 295, 326. 659. Exhibit A1, Tab 2 at 203, 275 and 292-3. 660. Exhibit A1, Tab 2 at 222. 661. Exhibit A1, Tab 2 at 224. 662. Exhibit 2 at [22]. 663. Exhibit A1, Tab 37 at 680. 664. Exhibit 2 at [23]. 665. Exhibit 2 at [24]. 666. Exhibit 2 at [25]. 667. T 348.25-.29. 668. T 349.10-.29. 669. T 349.46-350.09. 670. Exhibit 2 at [26]; Exhibit 2, RS-1 at 121-2. 671. Exhibit 6 at [5]-[7]. Paragraph [7] was limited under s 136 of the 1995 Act as to his understanding. 672. Exhibit 6 at [9]. 673. Exhibit 6 at [12]; Exhibit 6, DW-1 at 6-7. 674. Exhibit 6 at [14]-[16]. 675. Exhibit 4 at [24]-[25]. 676. Exhibit 7, Exhibit PS-1 at 34. 677. Exhibit 7, PS-1 at 35-6. 678. Exhibit 7 at [30]; Exhibit 7, PS-1 at 37. 679. Exhibit 3 at [24]. 680. T 414.38-.43. 681. T 415.38-.43. 682. T 415.45-.49. 683. T 416.01-.08. 684. T 416.10-.13. 685. T 416.15-.18. 686. T 417.07-.11. 687. T 419.24-.27. 688. T 419.29-.32. 689. T 419.34-.37. 690. T 420.42-.44. 691. T 421.19-.23. 692. T 421.25-.26. 693. T 422.14-.23. 694. T 353.30-.46. 695. T 353.48-354.01. 696. T 354.11-.16. 697. T 354.27-.31. 698. T 351.35-.44. 699. Exhibit 2, Exhibit RS-1 at 17-8. 700. T 352.05-.14. 701. T 354.33-.41. 702. T 354.43-.47. 703. T 354.49-355.02. 704. T 355.04-.09. 705. Exhibit 7, PS-1 at 39. 706. Exhibit 7, PS-1 at 40. 707. Exhibit A1, Tab 31 at 595-6; Exhibit 6, Exhibit IW-1 at 11. 708. T 492.25-.42. 709. T 493.10-.14. 710. T 493.16-.20. 711. T 493.27-.29. 712. T 493.31-.33. 713. Exhibit 3 at [25]. 714. T 372.44-.47. 715. T 372.49-373.08. 716. T 373.29-.37. 717. Exhibit 2 at [27]. 718. Exhibit 2 at [29]. 719. T 306.18-.28. 720. T 306.36-.39. 721. T 306.44-.46. 722. T 306.48-307.03. 723. T 307.05-.42. 724. T 308.08-.19. 725. T 308.21-.24. 726. T 308.26-.43. 727. T 308.45-.49; T 309.41-.49. 728. T 355.18-.27. 729. T 355.29-.31. 730. T 355.33-.39. 731. T 355.41-.49. 732. T 356.04-.10. 733. T 356.12-.14. 734. T 356.16-.19. 735. T 356.24-.26. 736. T 356.28.-30. 737. Exhibit 2 at [30]. 738. T 358.05-.08. 739. Exhibit A1, Tab 29 at 583-4. 740. Exhibit A1, Tab 29 at 584. 741. Exhibit A1, Tab 30 at 587. 742. Exhibit 3 at [27] and [29]. 743. Exhibit 2 at [31]. 744. Exhibit 2 at [33]-[34]. 745. T 73.03-.06. 746. T 73.08-.09. 747. T 78.21-.27. 748. T 78.29-.30. 749. T 78.32-.42. 750. T 78.48-79.04. 751. T 79.06-.09. 752. T 79.11-.18. 753. T 79.20-.21. 754. T 163.14-.15. 755. T 163.08.-12. 756. T 163.28-.32. 757. T 79.30-.33. 758. T 79.41-.43. 759. T 79.45-.47. 760. T 80.04-.06. 761. T 80.08-.15. 762. T 80.17-.24. 763. T 174.42-.44. 764. T 174.46-.48. 765. T 174.50-175.06. 766. T 80.30-.42. 767. T 80.44-.48. 768. T 80.50-81.03. 769. T 81.05-.09. 770. T 167.36-168.14. 771. T 168.16-.27. 772. T 167.45-.47. 773. T 168.36-.40. 774. T 168.29-.34. 775. Exhibit A1, Tab 37 at 691-2. 776. Exhibit A1, Tab 37 at 713-4. 777. Exhibit A1, Tab 37 at 721. 778. Exhibit A1, Tab 37 at 720. 779. Exhibit A1, Tab 2 at 91, 100, 112; Exhibit A1, Tab 37 at 718-9. 780. Exhibit 7, PS-1 at 42. 781. Exhibit 7 at [32]. 782. Exhibit 3 at [31]. 783. Exhibit 2 at [32]. 784. T 81.16-.39. 785. T 81.39-.44. 786. T 81.49-82.16. 787. T 82.23-.27. 788. T 82.32-.49. 789. T 83.32-.35. 790. T 83.37-.39. 791. T 169.27-.46. 792. T 170.29-171.03 793. T 171.05-.07. 794. T 171.21-.27. 795. T 171.32-.36. 796. T 171.38-.40. 797. T 171.48-172.13. 798. T 172.15-.20. 799. T 172.26-.27. 800. T 172.47-173.01. 801. T 173.03-.10. 802. T 173.12-.21; T 174.03-.06. 803. T 83.41-.45. 804. T 83.47-84.03. 805. T 84.09-.11. 806. T 84.13-.16. 807. T 84.18-.20. 808. T 84.22-.31. 809. T 84.33-.37. 810. T 84.40-.42. 811. T 195.16-.27. 812. T 195.43-.47. 813. T 196.17-.19. 814. Exhibit 3 at [30]. 815. 9.17am on 18 November 2016 UTC-5 (EST). 816. Exhibit 5 at [19]-[20]. 817. Exhibit 5, Exhibit IW-1 at 147-8. 818. T 84.44-.50. 819. T 85.01-.07. 820. T 85.09-.22. 821. T 199.31-.45. 822. T 169.16-.18. 823. T 174.08-.17. 824. T 174.19-.21. 825. T 174.23-.26. 826. T 174.28-.31. 827. T 174.38-.40. 828. T 85.24-.26. 829. T 85.28-.32. 830. T 85.34-.44. 831. T 85.46-86.06. 832. T 86.08-.10. 833. T 86.12-.16. 834. T 86.18-.26. 835. T 86.28-.34. 836. T 86.36-.46. 837. T 86.48-87.06. 838. T 87.08-.13. 839. T 87.15-.17. 840. Exhibit A1, Tab 1 at 17-18, [12]-[13]. 841. Exhibit A1, Tab 1 at 18, [14]. 842. Exhibit A1, Tab 1 at 18, [14]-[15]. 843. Exhibit A1, Tab 1 at 19, [17]. 844. Exhibit A1, Tab 1 at 33-4. 845. Exhibit A1, Tab 1 at 34. 846. Exhibit A1, Tab 1 at 35. 847. Exhibit A1, Tab 1 at 36. 848. Exhibit A1, Tab 1 at 37. 849. Exhibit A1, Tab 1 at 38. 850. Exhibit A1, Tab 1 at 38. 851. Exhibit A1, Tab 1 at 38. 852. Exhibit A1, Tab 1 at 39. 853. Exhibit A1, Tab 1 at 39. 854. Exhibit A1, Tab 1 at 62-3. 855. Exhibit A1, Tab 1 at 28. 856. Exhibit A1, Tab 1 at 29, [5]-[7]. 857. Exhibit A1, Tab 1 at 29, [8] 858. Exhibit A1, Tab 1 at 42. 859. Exhibit A1, Tab 1 at 42-3, [4]-[6]. 860. Exhibit A1, Tab 1 at 43, [6]. 861. Exhibit A1 at 43, [7]. 862. Exhibit A1, Tab 1 at 47-8, [7]. 863. Exhibit A1, Tab 1 at 48-9, [8]-[10]. 864. Exhibit A1, Tab 1 at 67. 865. Exhibit A1, Tab 34 at 600 866. Exhibit A1, Tab 1 at 54, 67. 867. Exhibit A1, Tab 1 at 7. 868. Exhibit A1, Tab 1 at 8. 869. Exhibit A1, Tab 1 at 8-9. 870. Exhibit A1, Tab 1 at 1-2. 871. Exhibit A1, Tab 1 at 3. 872. Defendant's Written Submissions at [8]. 873. Defendant's Written Submissions at [12]. 874. Defendant's Written Submissions at [12]. 875. Exhibit D, Annexure A. 876. Defendant's Written Submissions at [10]-[11]. 877. T 456.34-457.21 878. T 458.01-.04. 879. Exhibit D, Annexure A. The Plaintiff's message was in direct response to Ms Miles' question. 880. See Sangha v Baxter (2009) 52 MVR 492, Basten JA (with whom Handley AJA agreed) at 526 and SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56, Ward JA (with whom Macfarlan JA and Sackar J agreed) at [115]. 881. Defendant's Written Submissions at [18]-[20]. 882. Plaintiff's Written Submissions at [44]-[47]. 883. T 586.47-.48. 884. (1837) 3 Hag Adm 356 (the Lima). 885. [1953] 1 Lloyd's Rep 413 (Hook). 886. Defendant's Written Submissions at [40]. 887. Defendant's Written Submissions at [41], [48] and [61]. 888. Defendant's Written Submissions at [61]. 889. Defendant's Written Submissions at [44(d] and [46]. 890. Defendant's Written Submissions at [47]. 891. Defendant's Written Submissions at [57]. 892. Defendant's Written Submissions at [55]. 893. Defendant's Written Submissions at [59]. 894. T 314.27-.32. 895. T 398.17-49. 896. Defendant's Written Submissions at [61]-[64]. 897. Plaintiff's Written Submissions at [22]. 898. Exhibit A1, Tab 14 at 524. 899. Plaintiff's Written Submissions at [23]. 900. Plaintiff's Written Submissions at [24]-[25]. 901. Exhibit A1, Tab 1 at 50. 902. Exhibit A1, Tab 32 at 601. 903. Plaintiff's Written Submissions at [26]. 904. T 314.49-315.09. 905. Plaintiff's Written Submissions at [27]. 906. T 318.01-.02. 907. Plaintiff's Written Submissions at [28]. 908. Plaintiff's Written Submissions at [29]. 909. Plaintiff's Written Submissions at [30]-[31]. 910. Plaintiff's Written Submissions at [33]. 911. Plaintiff's Written Submissions at [34]-[37]. 912. Defendant must prove justification, Ruddock v Taylor (2005) 222 CLR 621 at 651; Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 at 354-55. 913. The restraint must be by the Defendant. See: Prison Officers Association v Iqbal [2010] All ER 663. 914. [1953] 1 Lloyd's Rep 413 at 423-4. 915. [1953] 1 Lloyd's Rep 413 at 424. 916. [1953] 1 Lloyd's Rep 413 at 424-5. 917. [1953] 1 Lloyd's Rep 413 at 425. 918. Exhibit A1, Tab 12 at 517. 919. T 342.01-.07. 920. Plaintiff's written submissions at [19]. 921. T 511.15-.29. 922. Exhibit 2, Exhibit RS-1 at 87. 923. T 572.29-.45. 924. T 571.38-.49. 925. See Defendant's Amended Schedule of Issues at [3] 926. T 667.33-.34 927. T 514.40-.45 928. T 514.47-20 929. T 355.37-.49. 930. T 556.21-.22. 931. Defendant's Amended Schedule of Issues at [3] 932. Defendant's written submissions at [73] and Exhibit A1, tab 2 at 220 933. T 349.10-.14 934. [1953] 1 Lloy'ds Rep. 413 at 423. 935. Exhibit A1, Tab 12 at 517-8. 936. [2003] NSWCA 208; 57 NSWLR 496. 937. [2012] NSWCA 37. 938. Exhibit A1, Tab 12 at 497. 939. Exhibit A1, Tab 12 at 487. 940. Exhibit 4 at 37-8. 941. Exhibit 4 at [32]-[33]. 942. T 107.30-.36. 943. T 107.42-.45. 944. T 107.47-108.01. 945. T 108.03-.05. 946. T 108.16-.21. 947. T 108.26-.31. 948. T 109.01-.15. 949. T 109.17-.24. 950. T 109.26-.37. 951. T 109.34-.41. 952. T 109.43-.48. 953. T 109.50-110.06. 954. T 110.08-.10. 955. T 110.12-.15. 956. T 110.30-.34. 957. T 110.39-111.05. 958. T 111.07-.09. 959. T 111.11-.16. 960. T 111.18-.20. 961. T 111.35-.38. 962. Exhibit A1, Tab 39 at 757. 963. T 116.14-.21. 964. T 116.23-.31. 965. T 116.33-.41. 966. T 116.43-.45. 967. T 117.33-.48. 968. T 117.44-.45. 969. T 120.03-.19. 970. T 120.21-.30. 971. T 120.39-.41. 972. T 120.43-.50. 973. T 273.32-.41. 974. T 273.43-.50. 975. T 274.02-.17. 976. T 274.19-.29. 977. T 191.22-.45. 978. T 191.47-.50. 979. T 192.02-.04. 980. T 192.06-.08. 981. T 192.17-.39. 982. T 192.49-193.04. 983. T 193.06-.11. 984. Exhibit A1, Tab 3 at 337. 985. T 87.19-.36. 986. T 125.14-.41. 987. T 125.40-.45. 988. T 125.47-126.05. 989. T 87.38-.44. 990. T 87.46-88.05. 991. T 88.12-.17. 992. T 88.19-.25. 993. T 88.27-.32. 994. T 89.42-.47. 995. T 89.49-90.01. 996. Exhibit A1 Tab 4 at 354. 997. T 185.03-.10. 998. T 185.12-.41. 999. T 186.04-.14. 1000. T 186.16-.37. 1001. T 186.39-.41. 1002. T 186.43-.45. 1003. T 187.06-.14. 1004. T 187.16-.33. 1005. T 187.35-188.02. 1006. Exhibit A1, Tab 3 at 337. 1007. T 88.34-89.01. 1008. T 89.03-.07. 1009. T 89.09-.14. 1010. Exhibit A1, Tab 3 at 336. 1011. T 193.13-.38. 1012. T 194.03-.14. 1013. T 194.22-.26. 1014. T 194.28-.33. 1015. T 194.35-.39. 1016. T 194.41-.46. 1017. T 89.16-.18. 1018. T 89.20-.26. 1019. T 89.28-.33. 1020. T 89.35-.40. 1021. Exhibit A1, Tab 3 at 335. 1022. T 189.38-.44. 1023. T 189.46-190.01. 1024. T 190.03-.05. 1025. T 190.07-.09. 1026. T 190.11-.18. 1027. T 190.34-.46. 1028. T 191.05-.08. 1029. T 191.10-.20. 1030. Exhibit A1, Tab 4 at 359. 1031. T 90.03-.06. 1032. T 90.08-.27. 1033. T 90.29-.34. 1034. T 90.36-.41. 1035. T 188.14-.47. 1036. T 189.05-.08. 1037. T 90.42-.45. 1038. T 91.07-.09. 1039. Exhibit A1, Tab 6 at 372. 1040. T 91.11-.32. 1041. T 91.48-92.10 1042. Exhibit A1, Tab 6 at 369. 1043. Exhibit A1, Tab 4 at 346. 1044. Exhibit A1, Tab6 at 368. 1045. T 92.19-.27. 1046. Exhibit A1, Tab 6 at 368. 1047. T 92.29-.35. 1048. T 92.37-.39. 1049. Exhibit A1, Tab 6 at 367. 1050. T 93.50-94.14. 1051. T 94.23-.28. 1052. T 94.30-.34. 1053. T 94.36-.37. 1054. T 94.39-95.01. 1055. T 95.09-.28. 1056. T 95.30-.39. 1057. T 95.41-96.41. 1058. T 96.43-.47. 1059. T 102.36-103.07. 1060. T 292.36-.40. 1061. T 293.03-294.26. 1062. T 294.33-.42. 1063. T 294.44-295.01. 1064. T 295.02.-16. 1065. Exhibit A1, Tab 53. 1066. Exhibit A1, Tab 54. 1067. Exhibit A1, Tab 53 at 948-9. 1068. T 122.23-.36. 1069. T 118.06-.18. 1070. T 118.20-.29. 1071. T 118.41-.48. 1072. T 118.50-119.08. 1073. T 119.10-.23. 1074. T 425.49-426.15. 1075. T 426.22-.28. 1076. T 426.30-427.11. 1077. T 427.20-.25. 1078. T 427.27-428.03. 1079. T 428.08-.10. 1080. T 428.20-.24. 1081. T 428.30-429.05. 1082. T 430.07-.08. 1083. T 430.17-.23. 1084. T 430.34-431.16. 1085. T 431.31-132.06. 1086. T 432.08-.23. 1087. T 432.25-.27. 1088. T 432.36-433.37. 1089. T 433.41-.45. 1090. T 433.50-434.02. 1091. T 434.08-.16. 1092. T 434.18-.39. 1093. T 425.30-426.13. 1094. T 437.07-.11. 1095. T 437.13-.25. 1096. T 437.49-438.05. 1097. T 438.37-.44. 1098. T 439.34-.45. 1099. T 439.47-440.08. 1100. T 440.48-441.47. 1101. T 442.05-.19. 1102. T 442.21-.25. 1103. T 442.36-443.09. 1104. T 444.03-.09. 1105. T 444.21-.36. 1106. T 444.40. 1107. T 444.47-445.13. 1108. T 445.17-.43. 1109. T 445.47-446.20. 1110. T 446.22-.42. 1111. T 446.44-447.09. 1112. T 447.11-.18. 1113. T 447.28-.46. 1114. T 447.48-448.03. 1115. Bendix Mintex Pty Ltd and Ors v Barnes (1997) 42 NSWLR 307; Purkess v Crittenden (1965) 114 164 1116. Exhibit A1, Tab 52 at 934. 1117. (1960) 108 CLR 158. 1118. Exhibit F. 1119. T 554.38-.44. 1120. T 562.43-.50. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2021