Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Torronen [2023] NSWCA 319 Hearing dates: 6 October 2023 Decision date: 15 December 2023 Before: Leeming JA at [1]; White JA at [98]; Griffiths AJA at [107] Decision: Summons seeking leave to appeal filed 15 May 2023 dismissed with costs. Catchwords: APPEALS – leave to appeal – claim for damages for sexual assault by police officers when plaintiff being apprehended – damages less than $100,000 – five day trial – no denial of procedural fairness – no error of principle or public importance – whether errors in fact-finding process – if appeal allowed, necessity for lengthy retrial – whether appropriate to grant leave to appeal Legislation Cited: Civil Liability Act 2002 (NSW), s 3B District Court Act 1973 (NSW), s 127 Evidence Act 1995 (NSW), s 140 Felons (Civil Proceedings) Act 1981 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 201 Law Reform (Vicarious Liability) Act 1983 (NSW), Pt 4 Limitation Act 1969 (NSW), s 18A Uniform Civil Procedure Rules 2005 (NSW), r 51.29 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Browne v Dunn (1893) 6 R 67 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gilmore Finance Pty Ltd v Aesthete Pty Ltd [2022] NSWCA 279 Norfeld Pty Ltd v Jones (t/as Watermark Patent and Trademark Attorneys) [2014] NSWCA 408 State of New South Wales v Randall [2017] NSWCA 88 Zhang v Hardas (No 2) [2018] NSWSC 432 Category: Principal judgment Parties: State of New South Wales (Applicant) Drew Torronen (Respondent) Representation: Counsel: R J Cheney SC and S W W Sykes (Applicant) P E Blacket SC and C Goodhand (Respondent) Solicitors: Makinson d'Apice Lawyers (Applicant) O'Brien Criminal and Civil Solicitors (Respondent) File Number(s): 2023/74333 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 06 February 2023 Before: Williams SC DCJ File Number(s): 2021/15694 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. LEEMING JA: The State of New South Wales seeks leave to appeal from a judgment ordered against it in favour of the plaintiff, Mr Drew Torronen, in the amount of $51,200 plus costs following a five day trial. Leave is required because the judgment amount is less than the $100,000 threshold in s 127(2)(c) of the District Court Act 1973 (NSW). The costs to which the plaintiff is entitled almost certainly exceed $100,000 themselves, but an entitlement to costs, even if quantified, does not contribute to the pecuniary threshold for leave: see Gilmore Finance Pty Ltd v Aesthete Pty Ltd [2022] NSWCA 279 at [8] and the decisions there cited. There was a concurrent hearing and the parties were heard fully, both on whether there should be a grant of leave and the substantive merits of the appeal. 2. Quantum is not in issue. The judgment was for damages, including aggravated damages but excluding exemplary damages, for trespass to the person by Senior Constable Ryan McDonald subsequent to the plaintiff's lawful arrest and handcuffing. The alleged trespass was the insertion of the officer's gloved finger or fingers into the plaintiff's anus before he was placed in a caged vehicle and taken to Ryde Police Station. The plaintiff alleged that the assault and battery were intentional acts that constituted sexual assault or other sexual misconduct, thereby falling within s 3B(1)(a) of the Civil Liability Act 2002 (NSW), displacing most provisions of that statute, and, because it was intentional, was not subject to the three year limitation period imposed by s 18A of the Limitation Act 1969 (NSW). 3. There are four proposed grounds of appeal. The first two contend that the State was denied procedural fairness because the police officers whom it called, and for whose tortious conduct it admitted it was vicariously liable pursuant to Pt 4 of the Law Reform (Vicarious Liability) Act 1983 (NSW), were not (speaking generally) squarely confronted with the allegations made by the plaintiff, contrary to the rule in Browne v Dunn (1893) 6 R 67. 4. The third proposed ground, which was left undeveloped in both the State's written and oral submissions, was that there had been a failure to provide sufficient reasons explaining why the primary judge accepted the evidence of the plaintiff over those of the police officers. The fourth proposed ground, which was the most prominent in both written and oral submissions, was that the finding that Senior Constable McDonald digitally penetrated the plaintiff during his arrest on the morning of 6 January 2016 was (a) glaringly improbable and amenable to review in accordance with Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, or (b) was erroneous because his Honour failed to have regard to or to apply the Briginshaw standard. Overview of trial 1. By way of overview, the plaintiff was arrested and has been found guilty of serious offences, as a result of which a lengthy sentence of imprisonment was imposed which will only expire in January 2028. The entirety of the plaintiff's offending and sentencing seems not to have been before the Court, but in his evidence in chief he stated that he had pleaded guilty to charges of cultivation and supply of cannabis, a take and detain charge, a couple of assaults and some gun charges, but that "[t]here was another section of the case that went forward at a later date". He said that his total effective sentence was "[s]even and a half on the bottom, 12 on top", and such documents as were available are consistent with a head sentence of 12 years imprisonment with a non-parole period of seven and a half years. The non-parole period was still being served when the hearing before the primary judge took place, although this Court was told that more recently Mr Torronen has been granted parole. This Court was also informed that leave had been granted pursuant to the Felons (Civil Proceedings) Act 1981 (NSW). 2. Most of the offences concerned the plaintiff's conduct at a remote property near Taree. Two detectives based in Taree, Detective Senior Constable Peter Deas and Detective Senior Constable Jamell Wilson, led the investigation. However, on 6 January 2016 the plaintiff was staying with friends in an apartment complex in suburban Ryde. Four detectives, Detective Sergeant David Parmeter, Senior Constable Pierre Rehayem, Senior Constable Nikhil Panchal and Constable Brendan Smith, all plain clothed, attended the Ryde premises on the morning of 6 January 2016. Electronic records suggest they drove in two vehicles starting at 7.18am, and this is consistent with one officer's notebook recording that the arrest was effected at around 7.45am and a COPS entry and the Custody Management Form both stating entry to the premises was effected at 7.30am. The detectives were granted entry by the partner of the apartment's owner, and the plaintiff was arrested. There was a dispute about whether he was treated roughly during the arrest. Indeed, the plaintiff sued for damages for assault while being arrested, and his closing submissions at trial distinguished his cause of action for "Assault and batteries inside the apartment" and "Assault/battery outside apartment during the 'street strip search'". The primary judge did not determine whether an assault took place in the apartment. 3. The detectives requested a caged vehicle to be sent to the premises and two uniformed officers, Senior Constable McDonald and Senior Constable Tracey Walker, arrived in a caged vehicle shortly thereafter. Electronic records in evidence suggest the request was made at 7.38am, the caged vehicle was assigned at 7.41am and arrived at the scene at 7.49am. 4. The plaintiff alleged that he was then assaulted by Senior Constable McDonald. Both the amended statement of claim filed in August 2021 and the further amended statement of claim filed on the first day of the trial, neither of which was verified, made the following allegations: 8. Once the Plaintiff and the officers arrived infront of the caged Police Vehicle, the Plaintiff was bent over the bonnet of the police vehicle by one of the officers ('Officer 1'). The Plaintiff was then held down by two of the other officers and was therefore unable to move. The Plaintiff's stomach was pressed against the bonnet and his hands were handcuffed behind his back. 9. Officer 1 then asked him whether the Plaintiff had anything on him that he wished to declare or if he had anything illegal. The Plaintiff informed Officer 1 that he had crushed cigarettes in his hands. The cigarettes were collected by one of the other officers. 10. At the time of the arrest, the Plaintiff was wearing black Nike brand tracksuit pants, black ASICS brand shoes and a multi-coloured hooded jumper. The Plaintiff was wearing underpants underneath the tracksuit pants. Officer 1 then proceeded to pull the Plaintiff's pants and underwear down so that that [sic] his genitals were exposed and put on a pair of black leather gloves. The Plaintiff loudly protested the removal of his pants by Officer 1 and informed the officers that he had haemorrhoids. The Plaintiff yelled words to the effect, "I told you I have nothing illegal on me". 11. Officer 1 then inserted a finger (or multiple fingers) into [the] Plaintiff's anus. Officer 1 was wearing leather gloves at the time. The Plaintiff felt a sharp pain and discomfort as the finger (or fingers) was forced inside his anus. The Plaintiff felt as though this action caused an internal tear inside his anus. The Plaintiff was in extreme pain and he loudly protested the actions of Officer 1. 12 The search conducted by Officer 1 did not reveal that [the] Plaintiff was in possession of anything illegal. After the search, an unknown policer officer who was standing close by then pulled the Plaintiff's pants up. The search was conducted in full view of the Mr Escola's partner, Ms Jade Lane, who was present during the arrest and search of the Plaintiff. 1. Ms Jade Lane, who was alleged to have witnessed the search, was not called, but his Honour accepted evidence that there had been an acrimonious break up and the plaintiff's solicitor had been unable to contact her. 2. The statement of claim also alleged: 17. When the Plaintiff was returned to the police station [scil from Ryde Hospital], he saw Officer 1 and asked him words to the effect, "Why did you do that?". In a condescending manner, Officer 1 responded, "It was an accident". 1. The electronic records state that the caged vehicle returned to Ryde Police Station at 7.57am. A Custody Management Record printed the following morning states that the plaintiff was accepted into the custody of Constable Min Bu at 8.29am. The same document records that the plaintiff telephoned a friend at 8.37am, and that an ambulance was called shortly thereafter at 8.45am. The accuracy of the latter time is corroborated by the independent records from the NSW Ambulance, which stated that a call was received at 8.42am, an ambulance was despatched at 8:56am and reached Ryde Police Station at 9.30am. 2. I did not understand there to be any suggestion that the timing of events recorded in electronic records of the police and ambulance service was inaccurate. The sole significance of identifying with some precision the timing of the movements of the police vehicles and the ambulance is to demonstrate that if the assault upon the plaintiff after his arrest occurred as he maintained, immediately before he was taken by the caged vehicle to Ryde Police Station, then it took place between 7.49am and 7.57am on a January morning in a suburban street. 3. The State called all four of the officers who had been present on 6 January 2016 when the arrest was made, and the two uniformed officers who arrived in the caged vehicle shortly thereafter. 4. The State also called both of the detectives from Taree who interviewed the plaintiff subsequently, twice – once shortly after 2.00pm that afternoon at Ryde Hospital, and then again in the evening, commencing at 6.26pm, at Ryde Police Station, and Constable Bu who was the custody manager at the station when the plaintiff first arrived, and Detective Steven Pass who took over as custody manager that evening. 5. Speaking generally, none of the eight Ryde police officers had anything like a clear recollection of the events, which by the time of the trial had occurred more than seven years previously. On the whole, they gave general evidence as to the practice that would be adopted when effecting an arrest and upon transferring the arrested person into a caged vehicle. On the other hand, both Taree detectives had recollections of the fact that during each electronically recorded interview the plaintiff had described, calmly but graphically, the assault which he claimed had been perpetrated upon him earlier that morning. The State also called the ambulance paramedics, who relied on their notes. 6. The trial took place over five days in the District Court. The first four days, being Monday 30 January – Thursday 2 February 2023, were occupied with evidence. The Court did not sit on the Friday but resumed on the morning of Monday 6 February for addresses. Both parties had supplied written submissions over the weekend. Addresses occupied Monday morning and then his Honour delivered ex tempore reasons that afternoon. It should be said immediately that those reasons, which occupy 109 paragraphs over 22 pages, engage in some detail with a great deal of the evidence which his Honour had seen unfold the previous week. Some allowance needs to be made for the fact that the parties had the benefit of immediate ex tempore reasons. 7. It is convenient to summarise the matters flowing from the contemporaneous documents which support the plaintiff's account, as well as the considerations telling against it. Matters favouring the plaintiff's claim 1. The strengths in the plaintiff's case were essentially twofold. The first is that it was unquestionably the case that, by the time a strip search was undertaken at Ryde Police Station by Senior Constable Rehayem and Constable Smith, shortly after his arrival at 8.00am, he was bleeding from his anus. Constable Bu completed a custody management record. On its face it appears that the document was created at 8.29am on 6 January 2016 (there was contradictory evidence from Constable Bu as to whether 8.29am was when he started or when he finished the document but that need not be resolved for present purposes). That document records that an anal fissure was observed and that "The POI claimed bleeding from his anal and is having blood in his hands [sic]". An ambulance was called at 8.42am, and Constable Bu told the operator that the plaintiff was bleeding from the anus, had an anal fissure, and that the cause of the bleeding was a haemorrhoid. Constable Bu is recorded as stating that it was aggravated, and it is possible, as was submitted in this Court, that the pauses at that point in the conversation reflect the plaintiff advising as much, although it is impossible to be certain about that. There was no doubt that the plaintiff had, for many years, suffered from large haemorrhoids, both external and internal, and was familiar with the fact that, from time to time, they ruptured. 2. The second strength in the plaintiff's case was that there are independent records of his complaint that he had been digitally penetrated quite shortly after he said it occurred. Those complaints consistently allege that his rectal bleeding had been caused by an officer digitally penetrating him during a search which occurred during his arrest on the street. 3. An ambulance was despatched at 8.56am and arrived at Ryde Police Station at 9.30am. The paramedics examined the plaintiff twice, at 9:36am and 10:20am, before loading him onboard at 10.37am and arrived at Ryde Hospital at 10.46am. The two paramedics who treated the plaintiff, Mr Gareth Copeland and Mr Jason Metcalfe, signed an electronic record which contained the following description: 32 yom, pt in Police Custody. O/A pt sitting in cell, pt states post arrest this AM, while being searched he sustained anal fissure – ? ruptured haemorrhoid. O/E pt A + O, GCS 15, pt c/o pain to anal region, minor continuous bleeding when dressing removed. pt given paracetmol [sic]. nil other compliants [sic]. obs stable. Pt Tx to Ryde Hospital. Police Escort. 1. The description does not state when that history was taken. However, it is reasonably clear that the words "post arrest this AM, while being searched he sustained anal fissure" reflect a statement made after the ambulance arrived at 9.30am and in the ensuing hour before he was loaded onboard for the 9 minute journey to hospital. 2. At Ryde Hospital, the plaintiff was seen by both a senior medical officer and a medical doctor. The first examined him at 11.33am and recorded the following history (in this and other medical records, it was common ground that "PR" is an abbreviation for "per rectum"): In police custody – had an examination by the doctor which provoked PR pain and bleeding – concerned re volume and so was sent in. Has a known history of haemorrhoids for the last 10 years, known to a proctologist in Gosford – Was advised that he could not have banding and would need laser therapy – not done. Has lived with haemorrhoids for this time. Also get anal fissures. Has been more constipated and drinking less for the past week or so. Exacerbating his haemorrhoids. Has been having small amounts of PR bleeding prior to today. [Has] also been feeling a little lightheaded for the past week. No SOB. 1. The second report, following a consultation at 1.35pm stated the following: 32 year old male Known history of complex haemorrhoids (known to Dr. Wong, colorectal surgeon, Gosford) Colonoscopy in 2013 – hyperplastic polyp and haemorrhoids, otherwise normal Presents today with anal pain and PR bleeding after having an internal examination by policeman 1. Finally at Ryde Hospital, on presenting in triage at the emergency department, a record was made, most likely by a nurse, as follows: PT BIBA IN POLICE CUSTODY, WHILE BEING SEARCHDE [sic] BY POLICE AS STATED PER PT PR BLEEDING 1. In both of the electronically recorded interviews conducted by the Taree detectives, the plaintiff described the digital penetration on the bonnet of the caged vehicle shortly thereafter his arrest. 2. It is true that one of the hospital records refers to "had an examination by the doctor which provoked PR pain and bleeding". The others all refer to an examination or search by police which provoked bleeding. It may readily be inferred that the reference to an examination by a doctor is an error or, perhaps, further aggravation of the existing injury. I do not regard it as detracting from the consistency of the plaintiff's immediate complaints. Matters telling against the plaintiff's claim 1. A number of factors told against acceptance of the plaintiff's claim. 2. First, there is the fact that the plaintiff has committed very serious crimes, giving rise to a lengthy prison sentence. He is the opposite of a person of good character, and it might well be thought that he had a motive to make false allegations against police officers who were instrumental in depriving him of his liberty for the term of his imprisonment. 3. Secondly, the plaintiff suffers from a variety of psychological conditions, including bipolar disorder and suspected paranoid schizophrenia with auditory hallucinations and post-traumatic stress disorder. 4. Thirdly, he gave evidence that when aged between 12 and 15 he had been sexually abused by a man, rendering him (in his own counsel's words) "hypersensitive to the suggestion that anybody would touch him in the anal area"; the same point was made by him in his electronically recorded interview. 5. Fourthly, when assessed by a nurse at prison, he confirmed that he had been taking 300mg to 900mg of Seroquel, a prescription psychotropic drug used to treat schizophrenia, in the previous week, and in his evidence in chief he said that he had taken the drug the previous evening or the morning of his arrest. 6. Fifthly, in the days preceding his arrest, he had consumed a miscellany of illicit drugs, including methylamphetamine and marijuana. This too was recorded when being assessed at prison, and in his evidence in chief, in answer to the question "What sort of drugs were you on at the time [he was arrested]?" he said "Probably just ice and pot. Yeah". Difficulties in the documentary records 1. There was uncontroversial evidence of police protocols to be followed when there was an allegation of sexual assault, which included the custody manager making a report to a senior officer. But by the early afternoon of 6 January 2016, the plaintiff had made those allegations in his first electronically recorded interview with the Taree detectives at Ryde Hospital. The Taree detectives may not have been aware before that interview as to whether the allegations had been made to officers at Ryde Police Station, but both gave clear evidence that they had told police officers at Ryde of the fact of the allegations. That evidence is inherently plausible. 2. It is overwhelmingly probable that at least some of the officers at Ryde Police Station must have been aware of the fact that, on the day of his arrest, the plaintiff was alleging that he had been digitally penetrated by one of the officers who had been in attendance at his arrest that morning. Even if they did not hear it while he was being treated by the paramedics at the station, at least one of them would have been told by the Taree detectives. Yet no documents were produced recording those allegations or any subsequent investigation of them. 3. The statement of claim was not filed until January 2021. Shortly thereafter, by direction dated 23 February 2021, Senior Constable McDonald received a letter stating that a complaint concerning the conduct of four detectives had been received, which was to the effect that one of those detectives (Parmeter, Rehayem, Smith or Panchal) had inserted his gloved finger or fingers into the plaintiff's anus causing him pain. The letter stated that Senior Constable McDonald was "considered a witness only" (original emphasis). Three of the other uniformed officers received similar letters. Its seems that the plaintiff had initiated other complaints about mistreatment. He gave evidence in chief that he made a formal complaint to the police integrity unit in 2018 and it is clear from correspondence with the Law Enforcement Conduct Commission in 2019 that the latter body received a complaint from the NSW Ombudsman on 18 December 2018. It seemed that none of the original complaints were in evidence. However, the complaint which was investigated by the Law Enforcement Conduct Commission names a specific officer, who was not Senior Constable McDonald or any of the officers who gave evidence in this trial, whom the plaintiff alleged had forcefully inserted a gloved finger or fingers into his anus after being arrested. That is consistent with Senior Constable McDonald being told he was considered "a witness only". The plaintiff gave evidence that one of the Taree detectives had given him that other name, and that although he believed it at the time, he had come to believe it was a joke. 4. Senior Constable McDonald was required to give a full account of the incident, and he did so by short statement made that day. The statement included the following: During the making of this statement I have refreshed my memory by referring to a Ryde Local Area Command tasking sheet number 2015/0043. On Wednesday 6 January 2016, I was rostered on shift with Senior Constable WALKER. I was working in full police uniform and conducting my duties in Ryde 17, a fully marked police vehicle. Around 7:50am on Wednesday 6 January 2016, we attended 6318/6 Porter Street, Ryde, to convey a male, I now know to be Anthony TORRONEN, to Ryde police station as he was under arrest. At this time, I do not recall any inappropriate conduct by any officer in attendance during my involvement with the convey. I do not recall Mr TORRONEN making any comment about the current allegation. I do not recall witnessing Mr TORRONEN being searched in my presence by the police officers in attendance. 1. The State filed a defence to an amended statement of claim on 28 September 2021, which contained positive allegations concerning Senior Constable McDonald as follows: … b) says that SC McDonald performed a frisk search or an ordinary search on the plaintiff by quickly running his hands over the plaintiff's outer clothing and says this was done wearing leather search gloves and using an authorised bladed hand search technique; c) says that SC McDonald was aware the plaintiff was arrested for commercial drug, firearm and child abuse offences and was to be transported to a police station in a caged vehicle; d) says that SC McDonald suspected on reasonable grounds that it was prudent to search the plaintiff to ascertain whether he was carrying anything that may present a danger or be used to assist him escape from custody; e) says SC McDonald performed the bladed search in order to ensure the plaintiff did not have any dangerous implements or drugs on his person; f) says that the frisk search or an ordinary search was authorised by sections 23 and 30 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA); g) alternatively, says that the frisk search or an ordinary search was authorised pursuant to section 24 [of] LEPRA; … 1. An amended defence was filed at the conclusion of the trial which included positive allegations in identical form, save that it deleted the reference to Senior Constable McDonald being aware that the plaintiff was arrested for commercial drug, firearm and child abuse offences. The State explicitly denied that the plaintiff had been subjected to a strip search on the street and denied that he had been digitally penetrated. One point taken by the plaintiff at trial was the difficulty in reconciling the opacity of Senior Constable McDonald's directed interview with the positive allegations as to what he did and what he thought in the State's defence. 2. That was the form the State's defence took throughout most of the trial. Despite being the alleged perpetrator of the assault, Senior Constable McDonald was the State's last witness, called on the afternoon of Thursday 2 February 2023. The proposed grounds of appeal concerning procedural fairness 1. The first proposed ground of appeal is that it had not been put to Senior Constable McDonald that he had digitally penetrated the plaintiff during his arrest. The second is that the other police officers were not sufficiently confronted with the allegations. 2. In each case, evidence was led from the witnesses in chief and then they were cross-examined. Senior Constable McDonald confirmed in chief that he had no recollection of what had happened on 6 January 2016, and that in his entire career (which, by the time he gave evidence, had been ten years) there had been one strip search that he had been involved in, in which he was just an observer. In his cross-examination, he accepted that he might well have done a general search before placing the plaintiff into the caged vehicle. He said that that was a general practice when a person was being transferred into custody, to make sure that the person has no weapons on them that they can hurt themselves or an officer with. He was then asked these questions: Q: And see the State of New South Wales' solicitors filed a defence in this matter, and at paragraph 11C on page 3, the State of New South Wales says that you were aware that the plaintiff was arrested for commercial drug, firearm and child abuse offences? A. This is the first I'm hearing of these charges. Q. And in order for the solicitor for the defendant State of New South Wales to put on a defence of that nature, to make an allegation that you were aware that you, McDonald, was aware that the plaintiff was arrested for commercial drug, firearm and child abuse offences, it's because they had received those instructions either from you or from some other officer who had made you so aware. Isn't that right? A. No. That's – as I said, that's the first time I'm hearing all those charges. 1. He also gave evidence about being asked whether he had a conference with a lawyer who asked questions about what occurred that day, and shortly thereafter he gave the following evidence: Q. Well, you were aware that there was an allegation that Mr Torronen in a ben[t] over position whilst an officer inserted a glove finger or fingers into his anus causing him pain? A. That's – that never happened – has never happened. Q. Well, sir, you were the officer that it was alleged to have inserted the finger, weren't you? A. No. Q. Who did you think it was? A. I until Tuesday did not know who it was alleged to be. And then I was informed that the alleged officer is myself, but what is being alleged never happened. Q. And Mr [McDonald] you said you have no memory of this incident a little while ago to his Honour. Is that right? A. That's correct. Q. So, if you've got no memory, it'd be very difficult to give any evidence about what happened on that day one way or another, wouldn't it? A. I say I have no memory is because I would do – back when I was doing those duties would do conveys quite regularly. And if something of this nature occurred, I would remember because that would stick in my memory and I would raise that. I wouldn't do it myself. Like I said, it didn't occur. I wouldn't do it. And if I witnessed another officer do it, I would instantly make a complaint about it. I'd raise the issue. Q. But you said you did an ordinary search. Is that right? A. I didn't say I did an ordinary search. I said I may have, but I cannot recall doing any search or Mr Torronen being searched in my presence. 1. Senior Constable McDonald's answer that "I until Tuesday did not know who it was alleged to be" appears to be a reference to the conference with a solicitor, two days earlier, to which he had earlier referred. 2. He also gave this evidence, by reference to his directed statement: Q. You were identified as a witness only. Is that right? A. That's according to that document, yes. Q. And you said that you didn't witness anything? A. That's correct. Q. And that was technically true if you had been the officer who did it? A. But I'm not the officer – I did not do it. No-one there did what is being alleged. Q. Sir, do you understand that whilst you say that you didn't do these things, were you aware that not only did Mr Torronen complain, but he was observed to be bleeding when he arrived at the Ryde police station? A. Not aware, no. 1. On a very strict reading of those questions and answers, it is true, as Mr Cheney SC who appeared in this Court although not at trial submitted, that Senior Constable McDonald was not squarely confronted with the proposition that he had digitally assaulted the plaintiff. He was confronted with the proposition that he was the officer who was alleged to have done so, and he was subsequently asked two questions which elicited responses denying that he had done so. Senior Constable McDonald's evidence on this was very clear, and far from implausible. Although he had no recollection of the actual events that occurred, he said that if the matters alleged by the plaintiff had occurred "I would remember because that would stick in my memory". He denied that he would do that himself, and he maintained that if he witnessed another officer doing it "I would instantly make a complaint about it". 2. At one stage during submissions it was said that it was sufficient in this case to elicit from the Senior Constable that he had no recollection of the events. I do not accept that submission. It is far from implausible that a witness who maintains that he or she has no recollection of events may not be able to give evidence explaining why, notwithstanding that lack of recollection, he or she is certain that the matters alleged did not occur. But that is not this case, because the cross-examiner did ask further questions of the witness, who denied any specific recollection and gave the answers reproduced above. 3. The question of whether a witness (in this case who could have been although he was not a defendant) is sufficiently confronted with the plaintiff's case involves an examination of the cross-examination as a whole, and is determined by reference to matters of substance rather than form. One way of testing the point is to ask whether it would have been a complete waste of time, given the responses reproduced above, for Senior Constable McDonald to be asked further questions "I put it to you that you did insert your gloved finger or fingers into the plaintiff's anus" and "I put it to you that he did complain thereafter". There is nothing to suggest that the officer had any response to those questions that had not already been given, and indeed given repeatedly. 4. The plaintiff's case was that he had been held to the bonnet of the vehicle by two other police officers, at least one of whom must have been amongst the four detectives in attendance. I am satisfied that each officer was sufficiently confronted with the plaintiff's case. I do not think it is necessary to summarise the cross-examination of each. By way of example, Senior Constable Rehayem was squarely confronted with the allegations that an officer pulled down the plaintiff's trousers at which point he said "I've got haemorrhoids", and that Senior Constable McDonald then inspected his buttock area using the glove to which the plaintiff complained. His cross-examination included the following: Q. I suggest to you that the officers held onto him while the search took place. A. Not that I remember. Q. Do you have any memory at all of the search taking place? A. A search would've – yeah, I remember a search taking place. Q. But you don't remember anything of the content of the search, is that what you're telling us? A. That's exactly right. Q. I suggest to you that a search was conducted, and the officer touched the plaintiff and pulled down his trousers, at which point he said in a very loud voice, "I've got haemorrhoids". A. That didn't happen. Q. I suggest to you that the next thing that happened was that he was examined by Constable McDonald, pulled down his pants and his underpants, and inspected his buttock area using the glove. A. That didn't happen. Q. He turned around and said, "What the fuck do you think you're doing?" Didn't he? A. No, he didn't. Q. In a loud voice? A. No, he didn't. 1. The State complained that what had not been put to him is that a finger or fingers had been jammed into his anus. I do not think it was necessary to do so given the earlier denials of all aspects of this. Substantially the same is true of the other detectives. 2. There is no reason to grant leave to determine a ground of appeal based on the alleged denial of procedural fairness. Far from there being any question of principle, or general importance, or error going beyond what is merely arguable, nothing which has been propounded by the State persuades me that there has been any denial of procedural fairness whatsoever. Accordingly, there is no basis for granting leave in respect of the first and second proposed grounds of appeal. 3. Before turning to the remaining proposed grounds of appeal, it is necessary to summarise the reasons of the primary judge. The reasons of the primary judge 1. Most of the reasons of the primary judge summarise the evidence of the plaintiff and the police officers, in light of the contemporaneous documents. 2. Within that summary, his Honour was critical of Constable Bu, who had no recollection of being told by the Taree detectives of the plaintiff's allegations of assault, but who knew that he was required to make a report of any such claim. His Honour largely rejected the State's submission made in relation to the paramedics, which was to the effect that if as the plaintiff maintained he had given a history of sexual assault, he should have been taken to Royal North Shore for forensic examination. The primary judge proceeded on the basis that they had not been told that there had been a sexual assault and were there to treat the plaintiff for his ruptured haemorrhoids. The balance of the reasons recounting and to an extent commenting upon the testimonial and documentary evidence at [1]-[86] need not be summarised separately from the account which has already been given. 3. His Honour noted at [87] that the strip search, acknowledged by two of the police officers to have taken place, at the Ryde Police Station had not been recorded in any police notebook, custody management record or COPS event (although it was recorded, perhaps incorrectly, in the "Field Arrest Report" as having been conducted at the Ryde Police Station at 7.30am that morning). His Honour noted at [88]-[89] that the amended defence admitted that the plaintiff requested medical attention at the time he was interviewed by the custody manager at Ryde Police Station, and withdrew a concession that he was bleeding from a rupture of a large external haemorrhoid. The primary judge noted that the State's submission was that the plaintiff had not told anyone of the assault prior to his attending hospital. That was said to accord with the oral evidence of the ambulance officers and the documentary evidence of the morning of 6 January 2016. However, at [92] his Honour accepted that the plaintiff did make complaints earlier in time, which were absent from the custody records. His Honour observed at [93] that his assertions to the doctors and the police officers in his first recorded interview are "not so remote in time as to suggest recent invention or fabrication, and indeed they have the appearance of some authenticity". 4. The primary judge rejected the proposition advanced by the State that the cause of the bleeding was the plaintiff having a bowel motion at some time prior to the bleeding first being noticed. His Honour attended to the State's submission that it was not until the plaintiff opened his case that the perpetrator was nominated as Senior Constable McDonald, although the earlier versions of the defence nominated Senior Constable McDonald as the person who carried out the strip search and positively alleged that he had reasonable cause to do so. His Honour said at [97], in response to a submission about the plaintiff's acknowledged drug taking, "there was no evidence at all of him apparently being affected by drugs or any other illicit substance". 5. His Honour addressed a submission by the State based on the plaintiff's short stature making it impossible for him to be "bent over the bonnet" of the police vehicle, noting that it was a general and imprecise expression and could have been used to describe the plaintiff's account. The concluding paragraphs warrant reproduction in full: Ultimately, the suggestion is made that the plaintiff's case involves such serious matters the Court must find that all six police officers are involved in an elaborate conspiracy, and each of them are prepared to put their own careers in jeopardy despite the alleged perpetrator not being a direct and well-known colleague of four of the other five. It is true that the issue must be determined having regard to Briginshaw (Briginshaw v Briginshaw (1938) 60 CLR 336) standards and having regard to s 140 of the Evidence Act 1995. It is unnecessary for me to come to a view that the officers were involved in some elaborate conspiracy. There have been, as I have indicated, numerous understandable deficiencies and difficulties with the evidence lead by the defendant during the course of the case, which are explicable for reasons other than involvement in an elaborate conspiracy. As I have indicated, my view is that much of the evidence of the police officers was based on an understandable desire to reconstruct matters from limited contemporaneous documents in the absence of records of the complaint that the plaintiff says he made. There is a significant degree of corroboration of the plaintiff's claim in matters such as the fact that he reported this incident to the Taree detectives, who said that they reported it back to the Ryde detectives or Ryde Police Station, and the relatively contemporaneous records to which I have referred. The defendant puts, in effect, that the assertion about the strip search in the street was such an outrageous allegation, it being potentially in view of passers-by or residents of nearby apartments that it could not have happened. But I accept Mr Blacket's proposition that such an event could have been done quickly and efficiently in a matter of seconds and not noticed by people other than those taking a very close interest in the matters. Given that the detectives had justifiably taken the view that their role had to that point been largely served by arresting and handcuffing the man, it was not a matter of any great concern to them as to how, if at all, the plaintiff was searched by the uniformed officers before being put into the caged vehicle. I do not accept that the plaintiff was not forthcoming about various matters such as his history of treatment for haemorrhoids, the exit from the apartment, the events involving the barbeque or the history of the ambulance officers. In my view, the plaintiff's evidence rather than being so improbable that it cannot be accepted, was one which had considerable credence, having observed the plaintiff carefully and competently cross-examined by counsel for the defendant. It is accepted that if I find, as I do, that the plaintiff was strip searched in the way alleged by Constable McDonald at the car, that damages may be awarded. … 1. The primary judge thereafter assessed damages, upholding a component of aggravated damages but rejecting the claimed exemplary damages. Proposed ground 3 – failure to provide reasons 1. No mention was made of this ground, namely, that there were insufficient reasons, in the written or oral submissions, and for good reason. The issue is not any absence of reasons, but their adequacy. 2. I would not grant leave to appeal on proposed ground 3. Proposed ground 4 – were the findings inherently improbable and was there error in failing to apply Briginshaw v Briginshaw? 1. The following criticisms may be made of the dispositive reasoning of the primary judge. 2. First, the primary judge explicitly put to one side the need to find any "elaborate conspiracy". That amounted to proceeding on the basis that the digital penetration by Senior Constable McDonald was either a badly misconceived aspect of a search of a suspected drug dealer, or else an opportunistic act committed for some other reason. Either way, it passed unnoticed by all five of the other police officers, or alternatively they noticed it but forgot about it in the ensuing hours (when at least some of them must have become aware of the plaintiff's allegations) and years. That is difficult to believe. The plaintiff said that there were three officers involved (two holding him down and one conducting the strip search), that his pants were pulled down before he was digitally penetrated, that he said he had haemorrhoids, and that he complained immediately thereafter. It is a known fact that later that day electronically recorded accounts of his complaints were made, and it is also clear that he was making the same complaint earlier at the hospital ("WHILE BEING SEARCHED BY POLICE AS STATED PER PT PR BLEEDING"). I fail to see how if the plaintiff's account is accurate or substantially accurate, only one officer's recollection must be incorrect. 3. The primary judge appears to have placed the detectives to one side on the basis that they had "justifiably taken the view that their role had to that point been largely served by arresting and handcuffing the man, it was not a matter of any great concern to them as to how, if at all, the plaintiff was searched by the uniformed officers before being put into the caged vehicle". But the plaintiff said he was held to the vehicle by two officers while a third pulled down his pants and digitally penetrated him despite his protests. There were only six officers present that morning at the caged vehicle. If the plaintiff is correct, at least one of the two officers holding him down while the strip search was conducted on the street was a detective. 4. Secondly, the primary judge rejected the plaintiff's claim for exemplary damages. His Honour was not satisfied that the conduct was an intentional act in contumelious disregard of the plaintiff's rights. Strictly speaking it was of course for the plaintiff to prove all aspects of his case, including the requisite contumelious disregard, if the State were to be punished as well as required to compensate the plaintiff. Yet it is difficult to comprehend the scenario found by the primary judge in which Senior Constable McDonald intentionally penetrated the plaintiff after he had been arrested, but did not do so in contumelious disregard of his rights. 5. Thirdly, and related to the foregoing, there is no analysis of the motivation of Senior Constable McDonald undertaking an act which was risky, apt to be reported and without any obvious benefit to him. His motivation was directly relevant to the claim for exemplary damages. 6. Fourthly, there were no findings as to the way in which the plaintiff was arrested by the four detectives. The plaintiff's case at trial extended, explicitly, to damages for the separate assault alleged to have occurred in the apartment. If as the plaintiff alleged the arresting officers applied unwarranted violence, that may have caused his haemorrhoids to rupture, although it does not seem especially probable. 7. Fifthly, it seems truly remarkable that a junior uniformed officer, whose role was to drive the caged vehicle and to accept custody of the handcuffed plaintiff, who had already been arrested and who by all accounts had ceased to struggle (if indeed he had ever struggled), would perform the act alleged, in broad daylight on a suburban street, in the presence of five other officers, before driving back to the police station. 8. Unquestionably the plaintiff was bleeding from his anus shortly after he arrived at Ryde Police Station (this is established by the triple-0 call and the examinations by the ambulance paramedics). Unquestionably, the plaintiff suffered from severe external and internal haemorrhoids, which from time to time bled. Unquestionably, the plaintiff was mentally unwell, with diagnoses of serious mental illness. Unquestionably, the plaintiff had consumed illicit drugs in the preceding days, including cannabis and methylamphetamine, and had also recently taken a large dose of the anti-psychotic drug Seroquel. Unquestionably, the plaintiff believed he had been sexually assaulted as a teenaged boy, and said that he was unusually sensitive to people touching him. Unquestionably, the plaintiff complained that he had been assaulted by a police officer consistently, to many people, shortly after the attack. Absent from the evidence tendered at trial are records of that complaint which, if the NSW Police Force "Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence)" had been observed, would have been brought into existence. 9. That was the background in light of which the primary judge was obliged to make findings which were of the utmost seriousness to the plaintiff and the police witnesses. 10. One possibility was that the plaintiff was perjuring himself, and had made the incident up, having found that his haemorrhoids were bleeding. However, telling against that is the fact that this would amount to a coincidental falsehood opportunistically grafted upon the happenstance that his haemorrhoids had (unusually) started to bleed at the time of his arrest. It is possible that that occurred as he was being arrested, and it is also possible that the arrest was effected with the violence to which he attested. It is also possible that he himself, while handcuffed, either deliberately or accidentally, caused his haemorrhoids to rupture. 11. Another possibility is that somehow, without any police officer penetrating his anus with his finger or fingers, his haemorrhoids came to be ruptured, and he rapidly came to believe that this had been done by a police officer in the course of his arrest and conveyance to Ryde Police Station. This possibility shares the unlikelihood of the haemorrhoids rupturing at the right time, but draws upon his mentally unwell state. 12. Another possibility is that the force applied during his arrest by the police officers caused the rupture of his haemorrhoids. It is conceivable that this occurred much more innocently than the plaintiff claimed, but that he came to believe that it occurred when he was frisked by a uniformed officer before being placed in the caged vehicle. 13. Another possibility is that Senior Constable McDonald, perhaps believing something about the offences which the plaintiff was thought to have committed, or perhaps out of a simple desire to demonstrate physical power, penetrated the plaintiff's anus as alleged. If so, it is difficult to accept that at least some of the other officers present were unaware of it. 14. None of those possibilities is especially plausible. However, the melancholy task of a court is to make findings sufficient to resolve the dispute presented by litigation. The large difficulty in this case is that one of the inherently improbable scenarios sketched above must have occurred (or perhaps a slightly different scenario, but if so it too would be one which is also highly improbable), and all the primary judge had to be guided by was the palpably fallible recollections of the plaintiff and eight police officers at Ryde seven years earlier in light of the objective documentary record. If indeed the plaintiff had sincerely come to believe his account, but it was wrong because he had confused the perpetrator, or his memory had been distorted by illness and illicit drugs, then his demeanour and presentation in the witness box would scarcely assist the primary judge. 15. The primary judge accepted the plaintiff's evidence as reliable. However, the reasons of the primary judge do not deal at all with the possibility that the plaintiff had come, sincerely, to believe his account but that it was false. My own view is that this is less uncommon than many people think, especially in the case of people suffering from mental illness. An example may be seen in Zhang v Hardas (No 2) [2018] NSWSC 432, in which a highly intelligent but mentally unwell plaintiff genuinely believed that in a series of consultations she had been maltreated by a chiropractor firing a device hundreds of times each session into her cervical spine. 16. I also consider that the primary judge was wrong to put to one side the possibility of "some elaborate conspiracy". If the plaintiff were to be believed, then something very unusual happened in broad daylight before he was placed in the caged vehicle, and it included the plaintiff stating that he had haemorrhoids and protesting against the digital penetration that nonetheless occurred. It was necessary for his Honour to attend to the fact that, on the plaintiff's case, all that occurred while two other police officers were holding him to the bonnet of the caged vehicle. I do not see how those officers could not have known that that was occurring. 17. I also struggle to see how if there was an intentional assault upon the plaintiff as he maintained, it was not one which was in contumelious disregard of his rights such as to warrant an award of exemplary damages. 18. Finally, nothing in the reasons given by the primary judge explicitly addresses whether his Honour felt an "actual persuasion" that the acts occurred, as Dixon J observed in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] HCA 34. Indeed, the finding in the plaintiff's favour is found in a subordinate clause. 19. For those reasons, I would conclude that, even allowing for the exigencies of an ex tempore judgment, there were appellable errors in the fact finding process adopted at trial. Should there be a grant of leave? 1. That is not an end to the matter. Despite the form of its proposed notice of appeal, the State acknowledged, candidly and correctly, that this Court could not resolve the dispute, and if the appeal were allowed, there would need to be a retrial. 2. At the forefront of Mr Torronen's submissions was the proposition that this was a case like State of New South Wales v Randall [2017] NSWCA 88. There it was held that the State's application for leave to appeal from a similarly small judgment should be refused, notwithstanding that all members of the Court formed the view that there were errors of principle in the application of ss 99 and 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), and errors in the assessment of damages: at [34]-[41], [43]-[55], [64]-[67] and [138]. Even so all members of the Court declined to order a new trial. 3. Sackville AJA said at [72]: The following factors in my view militate against granting leave to appeal: the manner in which the parties conducted the trial and, in particular, their identification of the factual question said to be critical to the outcome; the failure of the State to establish appellable error in the primary Judge's credit-based finding of fact on the critical issue; the small award of damages to Mr Randall; the very substantial and disproportionate costs already incurred by the parties; the very large costs that would inevitably be incurred if a new trial were to take place; and the fact that errors made by the primary Judge have been identified so that the decision can have no significance as a precedent. 1. McDougall J said at [139]-[141]: If there were to be a new trial, it would be unlikely that the damages recovered would be as high as those awarded by the primary judge (I say this because a proper assessment of damages must take into account the matters to which I have referred when dealing with ground 5). It would be an extraordinary misuse of public and private resources for there to be a new trial, presumably of the duration of that which took place before the primary judge, for such a modest outcome. In my view, it would be quite inconsistent with the dictates of s 56 of the Civil Procedure Act to burden the parties with the costs, both financial and personal, of a new trial. Equally importantly, and contrary to Mr Windsor's submissions, there is no question of principle to be clarified. Accepting, as I do, that the primary judge did not deal correctly with s 99(1)(a), or with the State's case of prospective validation of the arrest, the principles are well established. The importance of those principles has been vindicated sufficiently by emphasising the failure of the primary judge to recognise and deal with them. The third factor which, in my view, tells against the grant of leave is that the State's complaints in relation to s 99(1)(a) (and, to a large extent, s 99(1)(b)) stem largely from the way in which the State put its case at trial. As I have tried to explain, acceptance of the submissions now put by the State on s 99(1) would have the effect of permitting it another opportunity to argue the same point, and to improve the presentation of its case. Again having regard to the amount at issue and the likely duration of any new trial, that exercise cannot be justified. 1. Basten JA agreed there should not be a retrial. However, in dissent on this point, his Honour favoured allowing the appeal and setting aside the judgment of the District Court. His Honour emphasised this Court's role in administering justice, and in not leaving in place decisions which were legally erroneous. 2. The State responded to the reliance on Randall by submitting that "to the extent that the small amount of damages that were ordered militate against a grant of leave, that's overborne by the importance to my client, and the police officers, and indeed overborne by the public interest in having the proper application of Briginshaw applied in New South Wales courts". In response to the concern expressed by McDougall J in Randall at [118] that the retrial would permit the State to run the case differently, and more advantageously, it was said that "Nothing about a rehearing would see us change our position in any way. That is one aspect of the facts here that distinguishes it from the treatment that the State was given in Randall." 3. Only in very unusual circumstances will this Court decline to intervene when appellable error has been established. However, and although I regard the present application as finely balanced, I have ultimately concluded that leave to appeal should be refused for the following reasons. 4. First, there is no question of principle involved in this dispute, which squarely turns on its own highly unusual facts. There is nothing uncertain about the principles in Briginshaw or s 140 of the Evidence Act 1995 (NSW), and what has already been said as to their proper application is a sufficient answer to the State's reliance on the public importance of the proper application of those principles. 5. Secondly, a retrial would cost many thousands of dollars and require the plaintiff and at least eight of the police officers and the ambulance paramedics, to give evidence again, many years after the event. There is no reason to doubt that it would take approximately the same time as the original five day trial. There is a very considerable cost in public funds and resources, far in excess of the judgment sum. 6. Thirdly, I think I would have a different view if Senior Constable McDonald were a party. But he is merely a witness. He is not bound by any of the findings, even on the civil standard. He had no lawyer acting for him, and it is far from clear that he was especially well served by the lawyers acting for the State. If his evidence is to be believed (and at least in this respect there is no reason to doubt it), he is a witness who was only told two days beforehand that there were extremely serious allegations made against him. Further, the State served a defence which was inconsistent with his account and which was part of the reason for the primary judge doubting it. 7. Fourthly, it is impossible to avoid the conclusion that either the State had failed to discover documents relating to the plaintiff's complaint of sexual assault, or else that at least some of the police officers called by it had breached their duty to record that complaint. 8. Fifthly, I would have favoured granting leave to appeal if Mr Torronen had sought to appeal from the failure by the primary judge to determine the complaint that he had been assaulted inside the apartment. I would also have favoured granting leave to appeal had Mr Torronen complained of failure to award exemplary damages. But those complaints were not made. 9. Sixthly, it is common ground that Mr Torronen is mentally unwell, and serving the balance of his sentence on parole. Both those considerations tell against a retrial; he will be better served by putting the past behind him. 10. Notwithstanding the importance of the issues to the plaintiff, the State and the witnesses, there is no entitlement of a retrial whenever appellable error is established. That is the point of the requirement to obtain leave if the amount in issue is less than $100,000. It follows that there will inevitably be cases where there is error, but where there are other reasons (such as costs overwhelmingly exceeding what is at stake), which mean that leave should be refused. An example may be seen in the four day trial in the Local Court, followed by an appeal to the Supreme Court, in respect of which leave to appeal was refused in Norfeld Pty Ltd v Jones (t/as Watermark Patent and Trademark Attorneys) [2014] NSWCA 408 at [35]-[36]. True it is that this Court will in circumstances of that kind not uncommonly conduct a shorter hearing, confined to the question of leave, rather than the full hearing which the parties enjoyed in the present case (which the State sought at a time when Mr Torronen had served a notice of intention to appeal from the damages awarded). But the fact that the Court has heard the parties fully on the merits of an appeal does not preclude the need for an applicant to establish leave, nor does it stand in the way of the Court concluding, in a highly unusual case such as the present, that even though appellable error is established, nonetheless leave should be refused. Orders 1. In the result, I conclude that the appropriate order is to dismiss the State's application for leave. There is no reason for costs not to follow the event. 2. I propose that the summons seeking leave to appeal filed 15 May 2023 be dismissed with costs. 3. There is a final matter of concern. The State supplied as part of the materials in support of its appeal no fewer than three versions of the plaintiff's second electronically recorded interview. In answer to Question 35 whether when he arrived at Ryde Police Station he had had his rights read out to him, he said "Um, I'm not 100 per cent sure, but like I said, I was that out of it this morning". That answer was contained (a) in the electronically recorded file on a USB stick supplied with the appeal books, (b) within the entirety of the transcript of the interview which was included as pp 54-154 of the Orange Book, and (c) within 5 pages of transcript, parts of which were redacted, reproducing what had been tab 10 of exhibit A at trial at pp 38-43 of the Blue Book. To be clear, in the latter, question and answer 31 were redacted, questions and answers 32-58 were unredacted, and the balance was redacted. There were other answers given in the interview in which the plaintiff cast doubt upon the accuracy of his recollection of events that morning. Thus in Answer 68, referring to the interview recorded at the hospital, the plaintiff said "I was too spacey to be able to actually have a proper conversation with youse" and in Answers 75 and 76, in answer to the question whether he was feeling better, he said "Most definitely. I, I, like I'm still totalled from it, I haven't been on Seroquel for over 18 months now" and "I came off on cold turkey and ended up, yeah, messing with my head a little bit". 4. All of those documents were supplied to this Court by the State. As it happens, prior to the hearing I had viewed some of the interview and read parts of the transcript in the Orange Book, including Question 35. However, despite being supplied to this Court three times, question and answer 35 had not been tendered at trial. Only limited portions of the recording were tendered, the State's attempt to tender the whole of the transcript was rejected, and the six pages of the transcript tendered by the plaintiff were not as reproduced in the Blue Book but instead were confined to questions 38-58, not 32-58. This appears from the index to the Blue Book, but the fact of the matter is that when reviewing the appeal books I proceeded on the assumption that it was not necessary to check against the index to determine whether material reproduced in the appeal books had been tendered at trial (which accords with what Uniform Civil Procedure Rules 2005 (NSW) r 51.29(3) provides). It is quite unclear how the entirety of the transcript was reproduced in the Orange Book which was filed on 26 September 2023, or why the portion of the transcript which had been tab 10 of exhibit A was incorrectly redacted in the Blue Book. The status of questions and answers 75 and 76 is that they were not in evidence per se, but counsel for the plaintiff was permitted to read them verbatim to the plaintiff in re-examination, and he agreed that they were truthful answers which he had given. 5. When the appeal was heard, counsel for the State apologised for the inclusion of material in the appeal books which should not have been there. It was appropriate that he do so. I do not suggest that there was a conscious attempt to place before this Court material which had not been tendered at trial. However, it is clear to me that less attention was given by those charged with preparing the appeal books than should have been given. It is likely that members of this Court will read parts of the appeal books before the hearing, and if there is a dispute over what should be in them, it is preferable for the disputed material to be supplied separately at the hearing, in open court. 6. WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Leeming JA. I agree with his Honour's proposed orders. Subject to the comments below, I agree with his Honour's reasons. 7. I am not convinced that there were appellable errors in the fact-finding process adopted at trial. 8. It is unquestionable that the respondent was bleeding from the anus when he arrived at the Ryde Police Station. There is no evidence that he was bleeding from the anus when he was arrested. The State pleaded that Senior Constable McDonald carried out a bladed hand search technique over the respondent's clothes (see Leeming JA at [37]). If that were so it might have explained the bleeding. But notwithstanding the pleaded defence, no police officer gave evidence that such a search was carried out. The primary judge observed: "[86] As I have indicated, the last witness in the defence case was Constable McDonald, who has very little, if any, recollection of the events of the day. Notwithstanding that there was, in the pleading, clear assertions which must in the ordinary course of things have their source in McDonald's instructions." 1. The respondent's evidence was that he never had bleeding from his haemorrhoids unless he was going to the toilet. His evidence was: "I've never had bleeding from any of my haemorrhoids, no matter how severe they are, unless I'm going to the toilet. So, unless you're actually going to the toilet, and putting pressure down onto that area, you – you're not going to bleed". 1. The primary judge accepted that the respondent's evidence "…was one which had considerable credence, having observed the plaintiff carefully and competently cross-examined by counsel for the defendant". There was no evidence of the respondent's apparently being affected by drugs or any other illicit substance (at [97]). 2. There was no medical evidence contradicting the evidence that the plaintiff gave. There was no evidence that the respondent passed a bowel motion between his arrest and his arrival at the Ryde Police Station. There was no evidence that his clothes were soiled by faecal matter. The primary judge rejected a submission by the State that the cause of the bleeding was the respondent's having a bowel motion at some time prior to the bleeding first being noticed (at [94]). 3. The acknowledged bleeding when the respondent arrived at the Ryde Police Station is corroborative of his complaint of digital penetration. 4. As Leeming JA observes (at [84]), the State submitted that nothing about a rehearing would change its position in any way. But one might well expect that, on a rehearing, the State would seek to adduce medical evidence that could explain the respondent's bleeding when he arrived at the Ryde Police Station that was not attributable to the alleged digital penetration. Any such evidence should have been adduced at the trial. 5. For these reasons, in addition to the reasons of Leeming JA, I would also refuse leave to appeal. 6. GRIFFITHS AJA: I agree with Leeming JA. ********** 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: 15 December 2023