Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hadid v State of New South Wales [2024] NSWCA 73 Hearing dates: On the papers Date of orders: 11 April 2024 Decision date: 11 April 2024 Before: Kirk JA; Stern JA. Decision: 1. Leave to appeal is refused. 2. The applicant is to pay the respondent's costs of the application. Catchwords: APPEALS – leave to appeal – whether to grant leave – circumstances of case did not raise matters of public importance – monetary amount small – leave refused Legislation Cited: District Court Act 1973 (NSW), s 127(2)(c) Cases Cited: Blacktown City Council v Hocking [2008] NSWCA 144 Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69 Riechelmann v McCabe [2024] NSWCA 37 Toth v State of New South Wales [2022] NSWCA 185 Category: Principal judgment Parties: Jawad Hadid (Applicant) State of New South Wales (Respondent) Representation: Counsel: J Sheller SC w E Hall (Applicant) A Williams (Respondent) Solicitors: Macquarie Law Group (Applicant) Norton Rose Fulbright (Respondent) File Number(s): 2023/343880 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Civil Citation: [2023] NSWDC 446 Date of Decision: 24 October 2023 Before: Weber DCJ File Number(s): 2022/74026 [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. THE COURT: The applicant, Jawad Hadid, claims that he was battered by three officers of the New South Wales Police Force on 13 September 2018 in the course of what was, on any view, a violent arrest. The arrest occurred when four officers, having had to abort a planned arrest operation in Parramatta when Mr Hadid did not attend his community service, unexpectedly saw Mr Hadid's vehicle at a tyre shop in Merrylands West. When one of the officers saw the taillights of his car illuminate the officers correctly surmised that Mr Hadid was in the vehicle and moved to arrest him. A risk assessment performed for the planned arrest operation had identified that Mr Hadid was likely to be armed, had a propensity to avoid arrest, and had a propensity for violence. The four officers had all been wearing ballistic vests in preparation for the planned arrest operation but were not wearing them when they located Mr Hadid in his car at the tyre shop. 2. Mr Hadid claims that during the arrest he was battered by Detective Senior Constable Middlebrook ("Middlebrook") striking him on ten occasions (with either his hand holding a police radio or knee strikes), by Middlebrook placing weight on his body when he was on the ground, by Detective Senior Constable McKneight ("McKneight") through a combination of the placement of bodyweight and a knee strike, and by Detective Senior Constable Nunes ("Nunes") through the taking of his body, placement of bodyweight and handcuffing. The primary judge found that the force used by the three officers was reasonably necessary in effecting Mr Hadid's arrest and in defence of the fourth police officer involved in the operation, Detective Senior Constable Chapman ("Chapman") under either s 230 or s 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW): Hadid v State of New South Wales [2023] NSWDC 446 at [50]. The primary judge also preferred the evidence of Chapman and Middlebrook as to what occurred in the vehicle over the evidence of Mr Hadid: PJ[55]. 3. Mr Hadid seeks to appeal against this decision. As it is agreed between the parties that, if successful in his battery claim, Mr Hadid's damages would be $20,000 plus interest from 24 October 2023, leave to appeal is required: District Court Act 1973 (NSW), s 127(2)(c). The principles that govern such applications are well established. As explained by Kirby P in Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69, they include: "(3) The discouragement of unnecessary litigation in small amounts where [public] costs are necessarily involved including the time of the Judges, court officers, use of court buildings and functions, court reporters and the other expensive features of public litigation; (4) A recognition of the fact that, particularly in small claims, the amount of costs that can be recovered on a party and party costs order, are typically below those which are actually incurred by a party and which, in respect of a small claim, may be completely disproportionate to the amount actually at stake; (5) The need ordinarily to conserve the time of the Court of Appeal in small claims to matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear, that is to say goes beyond merely being arguable." 1. In Toth v State of New South Wales [2022] NSWCA 185 this Court said: "12 That an application might raise an issue of principle or public importance may not suffice to obtain leave if that issue will not be determinative because the applicant has no realistic prospect of succeeding in any event, regardless of the determination of those issues. This case is an example of the point. 13 In some cases a small amount may be at stake but it may raise an important issue of principle or question of general public importance. For example, Robinson v State of New South Wales (2019) 100 NSWLR 782; [2018] NSWCA 231 involved damages assessed by the District Court at $5000, but it concerned a significant issue about police powers of arrest, and leave was granted and the appeal upheld by majority. The High Court granted special leave to appeal and this Court's decision was upheld by a 4:3 majority of the High Court in New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46. 14 Leaving aside cases raising issues of principle or public importance, it will be rare that justice will require that an application for leave to appeal involving a small amount will merit the expenditure and use of resources in having an appeal determined by this Court. This is not such a case." 1. For the reasons set out below, leave to appeal should be refused. The application for leave to appeal 1. The key contention of Mr Hadid, as set out in his summary of argument in support of his application for leave to appeal, is that: "to conclude that the Police officers' actions were justified would require factual findings which go beyond the glaringly improbable to the impossible." 1. He contends that the available CCTV footage of the arrest and the officers' versions of events do not support the conclusion that the officers' actions were justified. In these circumstances, he says leave to appeal should be granted as the primary judge's error was so egregious as to amount to a substantial injustice and the unlawful use of violence by the officers raises a matter of general public importance. 2. These overarching contentions are based upon the following submissions: 1. The primary judge found that there was an altercation between Mr Hadid and Chapman after Chapman entered Mr Hadid's car by the passenger door, which was continuing when the driver's side door was opened: PJ[52], [54], [57]. Mr Hadid submits that this was "physically impossible". He relies upon the limited time between Chapman entering the vehicle and Mr Hadid opening the driver's side door, and the fact that, on Chapman's evidence, during this short period of time Chapman attempted to show him his police warrant card, twice said something along the lines of "Hadid, it's police, get out" and Mr Hadid told him to "Fuck off" and attempted to push Mr Hadid out of the vehicle. Mr Hadid also relies upon the fact that he was struck by Middlebrook on the left side of his head. He says this indicates that he was facing away from Chapman at the time he was struck, which he says is inconsistent with him grappling with Chapman at that time. 2. The primary judge erred in finding that Middlebrook opened the driver's side door of Mr Hadid's car (PJ[57]) when Middlebrook conceded that Mr Hadid opened that door. Mr Hadid submits that the "obvious finding" was that Chapman's entry through the passenger door caused Mr Hadid to try to exit through the driver's door. 3. The primary judge erred in finding that the situation confronting Middlebrook when he struck Mr Hadid in the vehicle was that Chapman and Mr Hadid were engaged in a physical altercation in a confined space: PJ[58]. He contends this finding must be wrong if either of the findings at (1) and (2) were wrong and in any event, was highly improbable given that the CCTV footage shows that the time between the door opening and Middlebrook striking Mr Hadid was "at most, one second". 4. The primary judge erred in finding that Mr Hadid was an unsatisfactory and unreliable witness: PJ[37] in light of the "glaringly improbable" findings at (1)–(3) above and given that an alternative, available inference was that Mr Hadid's recall was affected by the short time frame and traumatic events of the arrest. 5. Given the errors at (1)–(3) above, the primary judge "necessarily" erred in finding that the officers' actions were justified and that the use of force was reasonably necessary. Consideration 1. This case turned on factual conclusions reached by the primary judge, where those undoubtedly were affected by impressions about the credibility and reliability of witnesses formed as a result of seeing and hearing them give their evidence. His Honour found Mr Hadid "to be an unsatisfactory and unreliable witness" (PJ[37]) and the four officers in question "to be measured, truthful and reliable": PJ[38]). His Honour gave reasons for those conclusions. Mr Hadid implicitly accepted that in this context he needed to establish a compelling basis to overturn the challenged factual findings: see principles summarised in Riechelmann v McCabe [2024] NSWCA 37 at [53]-[59]. 2. The case he seeks to make in support of his application is founded in large measure on the available CCTV footage, which this Court has watched carefully. Such contemporaneous footage could potentially be of real significance in seeking to undermine conclusions based on oral evidence. Here, however, as the primary judge found, that footage is of poor quality: PJ[32]. Mr Hadid's submissions do not give any heed to the fact that, as recorded by the primary judge, there was evidence that the vision in the CCTV footage, which was recorded from a computer monitor using the mobile phone video function, "was sped up from the actual speed of occurrences portrayed" although to what extent or when this occurred was not clear: PJ[32]. In these circumstances, the Court should be mindful of the need for caution when seeking to interpret photographic or video evidence: see, eg Blacktown City Council v Hocking [2008] NSWCA 144 at [149], [166]-[173] (Tobias JA, Spigelman CJ, Beazley, Giles and Campbell JJA agreeing). 3. Moreover, it is apparent that it is very difficult to be clear from the footage as to what was occurring in the period between Chapman entering Mr Hadid's car through the passenger door and Middlebrook striking Mr Hadid through the driver's door. Whilst that period is approximately four to five seconds as recorded in the timings on the CCTV footage, for the reason set out above it cannot reliably be concluded that that was the actual time period between those two events. Even if it was, we would reject the contention that the primary judge's findings are physically impossible. As the primary judge found, the various matters Chapman said occurred within the car "could have occurred simultaneously or virtually simultaneously": PJ[53]. Moreover, the primary judge accepted the evidence of Chapman and Middlebrook: PJ[55]. Chapman's evidence was that he said the words described above and displayed his badge "at the same time, and immediately there was a physical confrontation in the vehicle". He later said: "It all happened very quick, those words that – I don't know if I finished those words before the wrestle started or before the physical confrontation began, or if I finished those words and the confrontation began. It had all happened very quick, and I said those words to him, either before or during the confrontation, but it – I – it was only three or four seconds in the vehicle …" 1. Thus the CCTV footage does not have the significance attributed to it by Mr Hadid. In these circumstances, Mr Hadid's contention that the primary judge's findings are physically impossible faces real difficulties on appeal. 2. As to the fact that Mr Hadid was struck by Middlebrook on the left side of his head, the primary judge found that this was consistent with the blow being struck whilst Mr Hadid was struggling with Chapman, but suggested that he had "momentarily looked to the right" when he became aware of Middlebrook opening the driver's side door: PJ[57]. We see nothing improbable in that conclusion. 3. As to the issue of who opened the driver's side door, as Mr Hadid submits, it is tolerably clear from the CCTV footage that the driver's side door was ajar before Middlebrook touched it. It is also, however, clear that Middlebrook then pushed it further open before reaching into the car. That is consistent with Middlebrook's evidence that: "Q: I- obviously there was quite a - Dylan(?) was in the front seat of the vehicle, so I ran around to the driver's seat of the vehicle via the – the back of the car, and as I ran up to the driver's door, the door opened slightly, and I ran up to the – the door and could still see the – the struggle going on in the front of the vehicle. There was, you now, grabbing, pushing going on there. Jawad Hadid was striking in the direction of Senior Constable Chapman and – Q: what happened with the driver's door? A: Driver's door, I think Jawad had opened the door and was attempting to open the door to get away, and I sort of moved in that gap between the open door and the – and the driver, and then I – I struck him once with a police radio." 1. Contrary to Mr Hadid's submission, the primary judge's finding at PJ[57] is not inconsistent with this evidence. Mr Hadid's submission at trial was that the fact that the first hammer strike seemed to have connected with the left side of Mr Hadid's head proved that he could not have been grappling with Chapman at the time as he must have been looking away from him: PJ[56] The primary judge found at [57], in response to this: "I also do not accept this submission. It assumes that at the time of the first hammer strike the plaintiff was in a static position ignoring Chapman, looking forward and turning his head towards Middlebrook. In my view, it is more likely that the plaintiff while he was struggling with Chapman became aware of a second stranger opening the driver's side door, an event which was happening to his right, he momentarily looked to the right, thus exposing the left side of his head at the time Middlebrook landed the first hammer strike. Thus the injury to the left side of the plaintiff's head, to my mind does not establish that he was not struggling with Chapman." 1. That finding is consistent with Middlebrook having pushed the driver's side door further open and appearing immediately to Mr Hadid's right in that doorway. In these circumstances, Mr Hadid's second factual challenge to the primary judge's findings does not bear the weight that Mr Hadid seeks to place on it. It does not indicate that Mr Hadid was not, at the time that Middlebrook first hit him, engaged in an altercation with Chapman. It does not undermine the primary judge's finding that Middlebrook was justified in delivering that strike. 2. Nor, contrary to Mr Hadid's submission, does the limited time period between Middlebrook appearing at the driver's side door and hitting Mr Hadid make it highly improbable that Middlebrook observed anything to warrant striking Mr Hadid. Such an observation can be made in a matter of moments in what was clearly a fast moving chain of events. There is nothing inherently implausible about Middlebrook's evidence that he saw Mr Hadid swinging strikes at Chapman when Middlebrook was located, as he initially was, at the passenger door and that he saw a struggle and Mr Hadid striking at Chapman when he ran up to the driver's side door. 3. Mr Hadid did not assert that this application for leave to appeal raises any issue of principle. It was suggested that it raises issues of public importance because it involves the use of force by police officers. Such cases can raise matters of public importance but that does not mean any such claim against police should be characterised in that way. The circumstances of this case do little to suggest that it raises such matters. 4. Mr Hadid's main argument for leave was "the substantial injustice to [him] resulting from obvious factual errors made by the trial judge". That submission is undermined by our conclusion that the CCTV footage does not have the significance attributed to it by Mr Hadid, along with the further points made above. The amount claimed – $20,000 – is relatively small, and the costs of the appeal would certainly exceed that amount. An appeal to this Court would not be proportionate for the public costs of an appeal to be incurred, and justice in all the circumstances does not require that leave to appeal be granted. Conclusion 1. It follows that leave to appeal should be refused. There is no reason why costs should not follow the event. ********** 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: 11 April 2024