New South Wales District Court CITATION: Lassanah v State of New South Wales (No. 3) [2010] NSWDC 241 HEARING DATE(S): 15, 16, 17, 18, 19, 26 February 2010; 6 May 2010; 28 May 2010; 3 June 2010; 13 August 2010; 9 September 2010; 16 September 2010 (written submissions), 17 September 2010 (written submissions) JUDGMENT DATE: 30 September 2010 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ (1) Judgment for the first plaintiff for defamation in the sum of $15,000. (2) Judgment for the second plaintiff for defamation in the sum of $20,000. (3) Judgment for the first plaintiff for false imprisonment in the sum of $15,000. (4) Judgment for the second plaintiff for false imprisonment in the sum of $20,000. (5) The judgment sum referred to in orders (2) and (4) above is to be paid into court for investment pending orders of the Supreme Court or Guardianship Tribunal. DECISION: (6) The parties have liberty to bring in Short Minutes of Order reflecting the mathematically agreed calculation of interest on the judgment sums. (7) Judgment for the first defendant/cross-claimant on the cross-claim of 100% indemnity and contribution against the second defendant/cross-defendant, including an indemnity for the costs of these proceedings. (8) Defendants pay the plaintiffs' costs of these proceedings. (9) Second defendant/Cross-defendant pay the first defendant/cross-claimant's costs of the cross-claim. (10) Liberty to apply in relation to costs and interest. (11) Exhibits retained for 28 days. CATCHWORDS: TORT - defamation, wrongful arrest and false imprisonment - Department of Community Services carer takes intellectually disabled patient to visit a watch store - store employee presses the hold-up button after they leave the premises and police officers stop and search the plaintiffs - whether publication of the matter complained of established - whether the publication was made on an occasion protected by qualified privilege at common law or pursuant to s 30 Defamation Act - whether the privilege was defeated by evidence of malice - whether the defence of unlikelihood of harm was established - wrongful arrest and false imprisonment - whether the police continuing to confine the plaintiffs in circumstances where they had established no robbery or attempted robbery had occurred amounted to false imprisonment - whether the second defendant (the watch store) was liable for false imprisonment - cross-claim between defendants - claims of general, - aggravated and exemplary damages Civil Procedure Act 2005 (NSW), s 56 Defamation Act 2005 (NSW), ss 20, 30 and 33 LEGISLATION CITED: Evidence Act 1995 (NSW), s 46 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 20 and 21 Police Act 1990 (NSW), ss 6 and 213 Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9 Allied Pastoral Holdings Pty Ltd v Federal AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27 Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 44 ALR 607; (1983) 70 FLR 447; (1983) 83 ATC 4015; (1983) 13 ATR 825 Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379; 13 ALR 249 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; (2004) 204 ALR 193; (2004) 78 ALJR 346; (2004) Aust Torts Reports 81-727; [2004] HCA 5 Bennette v Cohen [2009] NSWCA 60 Browne v Dunn (1829) 3 Sim 23; (1829) 57 ER 909 Bugge v Brown (1919) 26 CLR 10 Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 Coyle v The State of New South Wales [2006] NSWCA 95 Goldie v Commonwealth [2004] FCA 156 Gray v Motor Accidents Commission (1998) 196 CLR 1 Hage-Ali v The State of New South Wales [2009] NSWDC 266 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Howe & McColough v Lees (1910) 11 CLR 361 Insurance Commissioner v Joyce (1948) 77 CLR 39 Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278 Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 Lamb v Cotogno (1987) 164 CLR 1 Lamb v West (1894) 15 NSWLR 120 Lassanah v State of New South Wales [2009] NSWDC 73 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Lewis v Norman [1982] 2 NSWLR 649 Mann v O'Neill (1997) 191 CLR 204; (1997) 145 ALR 682; (1997) 71 ALJR 903; [1997] 12 Leg Rep 21; (1997) Aust Torts Reports 81-436; [1997] HCA 28 Martin v Watson [1996] AC 74 McDonald v Coles-Myer Limited (trading as K-mart Chatswood) (1995) Aust Torts Rep, 62,692 McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; [2007] VSCA 289 McFadzean v Construction, Forestry, Mining and Energy Union [2008] HCATrans 213 Meering v Grahame-White Aviation Co Ltd (1919) 122 LT Rep 44 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; (1982) 42 ALR 487; (1982) 56 ALJR 808; [1982] HCA 50 CASES CITED: Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 Myer Stores Ltd v Soo [1991] 2 VR 597 New South Wales v Delly [2007] NSWCA 303 New South Wales v Lepore (2003) 212 CLR 511 Nominal Defendant v Kostic [2007] NSWCA 14 Papaconstuntinos v Holmes à Court [2009] NSWSC 903 Photi v Target Australia Pty Ltd [2007] NSWDC 265 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 R v Metropolis Police Commissioner; Ex parte Blackburn [1968] 2 QB 118; [1968] 1 All ER 763; [1968] 2 WLR 893 R v O'Donoghue (1988) 34 A Crim R 397 Riley v New South Wales [2003] NSWCA 208 Roberts v Bass (2002) 212 CLR 1; (2002) 194 ALR 161; (2002) 77 ALJR 292; (2003) Aust Torts Reports 81-683; [2002] HCA 57 Rogers v Nationwide News Pty Ltd (2003–4) 216 CLR 327 Ruddock v Taylor [2005] HCA 48 Ruddock v Taylor (2003) 58 NSWLR 269 Sinclair v Bjelke-Petersen [1984] 1 Qd R 484 Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1; (1987) 86 FLR 343 Speight v Gosnay (1891) 60 LJQB 231 State of New South Wales v Tyszyk [2008] NSWCA 107 State of South Australia v Lampard-Trevorrow [2010] SASC 56 State of Victoria & Ors v Richards [2010] VSCA 113 Sullivan v Moody (2001) 207 CLR 562; (2001) 183 ALR 404; (2001) 75 ALJR 1570; (2001) 22(17) Leg Rep 2; (2001) 28 Fam LR 104; (2001) Aust Torts Reports 81-622; [2001] HCA 59 Tame v State of New South Wales (2002) 211 CLR 317; (2002) 24 NSWCCR 385; (2002) 191 ALR 449; (2002) 76 ALJR 1348; (2002) 23(15) Leg Rep 2; (2002) 36 MVR 1; (2002) Aust Torts Reports 81-672; [2002] HCA 35 Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 Trantum v McDowell [2007] NSWCA 138 Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 Webb v Bloch (1928) 41 CLR 331; (1928) 2 ALJR 282 Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123 Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 Whittaker & Anor v Child Support Registrar & Anor [2010] 264 ALR 473 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 Zaravinos v State of NSW (2004) 62 NSWLR 58 Zarth v Williamson [2006] NSWCA 246 Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354; [2007] NSWCA 106 TEXTS CITED: Gatley on Libel and Slander (11th ed, 2008) Ipp JA, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales <http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_ipp020906> First Plaintiff: Michael Lassanah PARTIES: Second Plaintiff: Aaron Oddie (an intellectually disabled person) by his tutor Michelle Pearson First Defendant: State of New South Wales Second Defendant: LVMH Watch & Jewellery Australia Pty Ltd FILE NUMBER(S): 5370 of 2008 Plaintiffs: Mr C A Evatt / Ms L Evans COUNSEL: First Defendant: Mr M Neil QC / Mr D Caspersonn Second Defendant: Mr R Rasmussen / Ms J Paingakulam Plaintiffs: Friend & Co Lawyers SOLICITORS: First Defendant: Henry Davis York Lawyers Second Defendant: Thurlow Fisher Lawyers JUDGMENT Introduction 1. The plaintiffs by statement of claim filed on 12 November 2008 bring proceedings for defamation, wrongful arrest and false imprisonment arising out of the circumstances in which, on 10 June 2008, each of them was detained by officers of the New South Wales Police. The parties in the litigation 2. The first plaintiff is a tertiary-qualified mental health worker who, since completing a degree at the Middlesex College Massachusetts, worked as a mental health worker, first in the United States and then in Australia for the Department of Community Services, by whom he is currently employed as a Residential Support Worker. 3. The second plaintiff suffers from profound intellectual disabilities of unknown cause, although Dr Reddel (whose report dated 2 March 2009 is Exhibit B) considers the causes may include one of the neurodegenerative disorders. Mr Oddie has a "very limited vocabulary" and his basic comprehension of sentences is "very limited" (report of Dr Reddel, page 2). Mr Oddie's tutor, his mother, gave evidence concerning the degree of his intellectual disability. 4. The first defendant is the State of New South Wales, against whom proceedings are brought by reason of the liability of the State of New South Wales for the conduct of police officers who detained and searched the plaintiffs on the day in question and spoke the words complained of. 5. The second defendant is the owner of a jewellery and watch store in King Street, Sydney, known as "TAG HEUER". The pleadings 6. The statement of claim pleads the following two causes of action: (a) On 10 June 2008, on the footpath outside 119 King Street, Sydney, the defendants wrongfully arrested and falsely imprisoned the Plaintiffs and/or caused the Plaintiffs to be wrongfully arrested and falsely imprisoned; and (b) A claim for defamation, brought against the first defendant only. 7. The text of the slander is: "The Manager of the Tag Shop said you were intending to steal from the shop. We are stopping you because you guys were in the Tag Shop intending to steal. You were intending to steal. Don't go into that shop. You were intending to steal." 8. The words are asserted to have been spoken by the servants or agents of the first defendant, namely police officers, and the words are asserted to have been spoken to both the plaintiffs. The imputations pleaded in the defamation claim are : (a) (i) The first Plaintiff is a thief. OR (a) (ii) The first Plaintiff is an attempted thief. (b) The first Plaintiff intended to steal from the Tag Heuer Boutique shop. (c) (i) The second Plaintiff is a thief. OR (c) (ii) The second Plaintiff is an attempted thief. (d) The second Plaintiff intended to steal from the Tag Heuer Boutique shop. 9. The statement of claim also pleads that at the request of the second defendant's servants or agents, and because of information given by them to police officers, the plaintiffs were detained on the footpath and gutter outside 119 King Street Sydney for one hour. The plaintiffs were searched and the police officers took and failed to return the first plaintiff's driver's licence. This was done in the presence of members of the public who were passing, which caused the plaintiffs humiliation and embarrassment. Aggravated and punitive damages are sought. 10. The nature of the defences to these actions, and the cross-claim between the defendants, are as follows. The defences of the first defendant to the defamation claim 11. The first defendant denies publication of the words set out in the schedule to the statement of claim and pleads the following defences to the claim for defamation: (a) a defence of qualified privilege at common law and pursuant to s 30 Defamation Act 2005; (b) a defence of "unlikelihood of harm" pursuant to s 33 Defamation Act 2005; and (c) a defence of contextual truth, pleaded against the second plaintiff, Mr Oddie, which was abandoned on the first day of the trial. 12. The first defendant's claim of absolute privilege was the subject of an earlier ruling: Lassanah v State of New South Wales [2009] NSWDC 73. 13. In addition, a defence pursuant to s 213 Police Act 1990 (NSW), excusing the publications on the basis that they were published in good faith, was particularised at paragraph 10(h) of the Amended Defence. It was not proceeded with at the trial and is not the subject of submissions. A new defence is pleaded after the evidence is completed 14. Although never pleaded or particularised, or raised during the trial, a defence of "coherence" was raised by the first defendant, which required further written submissions. The extent of this defence, which was never pleaded, was extended to all causes of action, including the cross-claim, but later submissions restricted it first to the defamation claim (as an absolute bar) and then as "a matter to be taken into account" in the qualified privilege defence. 15. The defendants' defences to the claim for wrongful arrest and false imprisonment are as follows. The claim for wrongful arrest and false imprisonment 16. The first defendant admits the police officers attended the Tag Heuer premises (although denying that they were present for one hour as pleaded), admits that the plaintiffs were detained, asserting that this was lawful pursuant to s 21(1)(b) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and asked for identification and searched but otherwise denies the allegations. The defence of the second defendant 17. In a defence filed on 18 June 2009, the second defendant denies the matters pleaded in relation to the claims for wrongful arrest and false imprisonment. The cross-claim between the defendants 18. The first defendant brings a cross-claim against the second defendant in relation to both the defamation action and the false imprisonment and wrongful arrest claim, asserting that the cross-claimant attended the premises by reason of the cross-defendant's servants or agents activating the hold-up alarm, and that when members of the New South Wales Police Force attended the second defendant's premises, an unidentified employee of the second defendant (paragraph 7 of the statement of claim) made the following publication: "Two male persons have been in the shop acting suspiciously. They have been in the shop walking around and trying to lift the glass on top of the display cabinets. There is concern that the persons will steal something or will hold-up the shop. A few months previously a robbery has occurred at the shop in similar circumstances." A description of the two persons was given to the NSW police." ("the initial publication") 19. The cross-claimant pleads that the cross-defendant knew, or should have known that the New South Wales Police would try to locate the plaintiffs, stop and interview them, detain them and republish this publication. 20. It is asserted that the cross-defendant was liable, on the basis that the cross-defendant: "(a) was accessory to the publication of the matter complained of; (b) had "conduced to" [sic: see paragraph 9(b) of the defence] the publication of the matter complained of; (c) had suggested matter in order that the NSW Police may publish it; (d) had approved of what was published in the matter complained of; (e) had concurred in the publication of the matter complained of; (f) had assented to and/or approbated to the publication of the matter complained of; (g) had assisted and/or encouraged the NSW Police in the publication of the matter complained of; and (h) had procured and caused the publication of the matter complained of. 10. Accordingly, it is pleaded that the initial publication was made by the cross-defendant in circumstances where, either: (a) the cross-defendant authorised its republication; and/or (b) its republication was the natural and probable result of its publication by the cross-defendant; and/or (c) its republication was intended by the cross-defendant." 21. As to the balance of the plaintiffs' claim, it is asserted that the false imprisonment was procured by a servant or agent of the cross-defendant activating the hold-up alarm and making this publication, which caused the NSW Police to act. Indemnity is sought pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The defence to the cross-claim 22. The defence to the cross-claim denies that the cross-defendant knew or should have known that the NSW Police would try to locate, stop and interview the plaintiffs or republish the initial publication, either in the terms alleged by it or at all and otherwise denies the cross-claim. 23. The cross-defendant says (paragraph 9 of the cross-claim) that the publication and conduct of the cross-claimant were both the result of independent actions of officers of the New South Wales Police Force, over which the cross-defendant could not and did not exercise any control. 24. As it was the conduct of the second defendant's servants or agents in pressing the hold-up button which led to the police coming to the premises and detaining the plaintiffs, it is appropriate to commence with a consideration of the liability of the second defendant in relation to the claim for false imprisonment. Delays between the completion of the evidence and the handing down of this judgment 25. There was delay between the completion of the evidence and the handing down of this judgment. This was partly caused by the first defendant raising the coherence defence during the submission stage. 26. Further delays were caused by the counsel for the plaintiffs, who on 23 July, in anticipation of decisions being handed down by the NSW Court of Appeal and High Court, wrote to the court and the parties asking for judgment not to be handed down until further submissions concerning the defence of qualified privilege could be made. Those submissions were made by both parties on 16 and 17 September 2010. The structure of this judgment 27. The raising of a new defence during submissions and the way in which the plaintiffs have approached the analysis of the qualified privilege defence to the defamation claim (including failing to make any submissions on the s 30 defence) have added complexity to what would otherwise have been a relatively straightforward series of issues for resolution. In order to deal with the series of submissions provided by the parties since the hearing in a coherent way, I have structured this judgment, and the disputed issues and the order in which they are dealt with, as follows: (a) I have first dealt with the factual issues, namely the events inside the Tag Heuer shop and the calling of the police to apprehend the plaintiffs. For this reason, I have made findings of fact in relation to the circumstances in which a servant or agent of the second defendant pressed the hold-up button, and other servants or agents of the second defendant identified the plaintiffs as the persons to be detained by the NSW Police who attended the scene, in response to this hold-up button being activated. (b) I have next dealt with the liability of the first and second defendant for the circumstances in which the plaintiffs were detained and questioned. (c) I have next dealt with the liability of the first defendant in relation to the alleged defamatory publications. (d) Since the cross-claim relates to all the claims brought by the plaintiffs against the first defendant, including the defamation claim, I have considered the issues raised by the cross-claimant in the cross-claim. (e) Finally, I have dealt with the issue of the quantum of damages for each of the plaintiffs. The demeanour and appearances of the plaintiffs 28. As a general rule, the demeanour and appearance of a person who is a plaintiff in proceedings is a matter about which judges should exercise caution, for the reasons explained by the New South Wales Court of Appeal in Nominal Defendant v Kostic [2007] NSWCA 14 and the article by Ipp JA in "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales <http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_ipp020906>. For reasons that will become apparent as I set out the factual material in more detail, the appearance and demeanour of each of the plaintiffs in this cause of action is a matter of significance in this case. In relation to the second plaintiff, this was acknowledged to be so by counsel for the second defendant, who read out an apology half way through the proceedings in relation to the first and second plaintiffs, in circumstances described in more detail below, after having seen the second plaintiff in court. The first plaintiff 29. The first plaintiff, Mr Michael Lassanah, attended high school and university in the United States. He served in the army and navy in the United States, serving on the "USS Ship Blue Ridge", the flagship cruiser for the Admiral of the US Fleet. He was also a member of the Army Reserve for two years. He was clearly a valued naval officer during his ten years of service. Documents tendered included a letter of thanks from the Congress of the United States, a citation for outstanding performance of duties, and a certificate for the Delayed Enlistment Program (T 26-29). 30. Mr Lassanah came to Australia after meeting and marrying his wife, who is Australian (T 28). He completed a Diploma of Finance at the Australian College QED in July 2005 and enrolled in a Certificate 4 in Mental Health at TAFE to complement the two year course he had completed at Middlesex College in Massachusetts. He has been employed by the Department of Community Services as a carer in the Mental Health Department of Psychology (T 23-24) since 2005. 31. One of the persons for whom he cared on a regular basis was the second plaintiff, Mr Oddie. 32. The first plaintiff gave evidence and was cross-examined and I had an opportunity to observe his demeanour in the witness box. The first feature of the Mr Lassanah's appearance that is relevant to these proceedings is that he does not have the appearance of a dangerous person. He is a person of average height and slim build, with the erect carriage and neatness of appearance that persons who have spent a long time in the military or naval forces seem to acquire. He speaks with a strong accent; one of the police officers who attended the scene said in his evidence that Mr Lassanah spoke with an American accent (T 379). He was in fact born in Liberia, and emigrated to the United States. 33. The second feature concerning Mr Lassanah's appearance is that his racial background is immediately noticeable. The first impression given is that he is a black American, although in fact he was born in Liberia and emigrated to America as a young teenager. The second plaintiff 34. Mr Oddie's appearance had to be observed by me, and by the parties, from the well of the court, since he was too intellectually disabled to give evidence. 35. Mr Oddie was neatly dressed and well-behaved, but it was immediately apparent from his facial expression and behaviour, and lack of awareness of his surroundings, that he is profoundly intellectually disabled. I will not distress the members of his family by describing this in more detail, other than to say that his intellectual disability is immediately obvious to an observer. 36. However, despite this disability, Mr Oddie's appearance and demeanour is not that of a dangerous person. He sat very quietly in the courtroom, although at one stage, apparently because he was frightened, he started whistling. It soon became clear that he was very frightened about being in court. Although the case commenced with Mr Lassanah giving evidence, Mr Evatt asked for leave to interpose Mr Oddie's mother, Mrs Pearson (T 46) so that Mr Oddie could be released from further attendance at the court, for this reason, as his mother explained in her evidence. 37. Mrs Pearson gave evidence (T 47ff) as follows: "Q. The sad truth of this is that nobody has been able to really diagnose your son. Is that right? A. That's right. There's – there's multiple diagnoses really. There's the autism, which was the first diagnosis, and then following that there were other diagnoses: acute, severe, atypical treatment- resistant schizophrenia. Q. You told me during morning tea break that if you went to the United States you could have further diagnoses which you can't get here. Is that right? A. Apparently. Q. In any event, you say he has no memory? A. Short term memory. Q. Has no short term memory? A. Very short. Q. Does he know why he's here in court? A. No. Q. Is he capable of giving evidence? A. No. Q. Capable of recalling this incident at Tag Heuer? A. No, I don't think so. Q. Is it difficult, if not impossible, to have a conversation with him? A. It's very difficult." (T 48). 38. Mrs Pearson explained why her son was frightened: "Q. Has your son said to you why he thinks he is here today? A. Yes, he said – he said "Why are we here?" And I said "We're here to go to court", and he said he thinks he's done something wrong." (T 48) 39. In cross-examination, Mrs Pearson said that her son had a lot of difficulty concentrating, and that when he has that difficulty he can become very restless and he can tend to pace around a lot. 40. This description of each of the plaintiffs is important, because it is a key to understanding what happened on the day in question. The circumstances in which the plaintiffs attended the Tag Heuer shop 41. Mr Lassanah's job included taking the second plaintiff on excursions as part of the program to help to integrate him within the community (T 32). The Department provided him with a hire car for the purpose of taking Mr Oddie on excursions trips to Darling Harbour, the beach and the like. Mr Lassanah said (T 32): "Aaron has just as much right to go out and do things, you know, just like any other man". 42. On the day in question, he took Mr Oddie to breakfast at McDonalds, this being Mr Oddie's choice, and then drove, in the vehicle provided for him by the Department of Community Services, to King Street in the city, as part of Mr Oddie's day's activities. While they were in the city, Mr Lassanah decided to look for a gold watch for himself. He already had a gold chain and a gold ring and he wanted to have a gold watch to go with it (T 34), so he decided to visit the Tag Heuer and Rolex shops. 43. During this shopping excursion Mr Lassanah said that he and Mr Oddie were wearing what he called "just normal clothes, something like this" (T 35), indicating the very neat shirt and trousers that he was wearing while giving evidence in the witness box. Mr Oddie was wearing a cap and casual clothes. 44. Mr Lassanah and Mr Oddie had to be "buzzed" into the Tag Heuer shop, which had a security door. When they came in, Mr Lassanah told the staff members, a male and female, that he wanted to look at the watches for sale. He looked at watches in a case and asked to see some of them. This meant the staff had to unlock a case containing watches and take out the watches so that he could have a look at the quality of the watch. Mr Lassanah described the staff as being polite, helpful and very talkative and said there was no sign of hostility (T 38). Mr Lassanah's own demeanour during this conversation, judging by his description of what was discussed (which was not the subject of cross-examination) and the CCTV tape, was similar to his demeanour in the witness box. I observed he had a courteous manner and a quiet voice, that he listened to questions without interruption and that he answered in a responsive and helpful fashion. 45. Mr Lassanah said he was in the shop for between five to fifteen minutes. Mr Oddie only remained in the shop with him for the first few minutes, but then wanted to go outside to smoke a cigarette. Mr Oddie was then "buzzed" out of the shop, and remained outside the shop for the remainder of the Mr Lassanah's visit. He can be seen on the CCTV looking at Mr Lassanah through the window. He is not misbehaving in any way. He could not, of course, return to the shop unless he as "buzzed in" by the staff. 46. Mr Lassanah told the salesman he was not interested in the watch he was looking at, and the salesman said something like: "Goodbye, nice seeing you", to which Mr Lassanah replied: "Okay, if I change my mind, I'll come, maybe I – I have to go look across the street to see if I see something that I like" (T 39 lines 15-16). Mr Lassanah then left the shop to join Mr Oddie and they went to the Rolex shop, where he looked at watches for another six to seven minutes (T 39). The same process occurred in the Rolex shop; the plaintiffs entered, after the Rolex shop staff unlocked the door. The first plaintiff was shown a watch and they then left the Rolex shop, walking back down King Street towards where he had parked his vehicle. This entailed walking past the Tag Heuer shop. 47. The description given by the first plaintiff of the circumstances of arrest was as follows: "Q. You just tell us exactly what happened? A. Yeah. After I seen the cops and … (not transcribable) … you guys were in the Tag Shop?" I said, "Yes. Is there a problem officer?" He said, "Yes. The employee of the shop said that you guys were trying to, to – attempting to steal. Pulling on drawers and trying to pull on the drawers and the glasses in an attempt to steal the watch." I said, "No. That's not true, that's not true. I just went there. I talked to the employees of the store and they serviced me. I left." He said, "No. The employees told us that you guys were – attempted to steal a watch." And then he said there might be some item missing. I said, "No, we didn't steal anything. I just went to see if there was something that I like, so I can buy." And he said, "Okay, pull over on the side," and then he search us. And then after they had us sat in the gutter and stuff and while they talked to the employees in the shop. Q. How many police officers were there? Approximately. A. There were between five and six. Q. Five or six? A. That's right. Yes. Q. Now, did they ask you to do anything or did they make you do anything? A. Yeah, they had us sat on, on the, on the ground and then after they searched us. Q. You went on the ground. Is that right? A. Yes, sir. That' s correct. Q. Well, I mean, by ground do you mean – do you mean the footpath or the street? A. Yes, the footpath, yeah, yeah, I'm sorry, the footpath. Q. The footpath? A Yes, yes. Q. Well, how did you get on the ground? On the footpath? A. The cops, they told us to sit on the ground. Q. Were you face down or-- A. Yes. Q. Face down on the ground? A. Oh, no. Oh, just bottom on the ground. HER HONOUR: Q. They told you to sit on the ground? A. Yes, they did, yeah. Q. So you were sitting on your bottom on the ground? A. Yeah, yeah. HER HONOUR: They weren't face down, Mr Evatt. EVATT Q. You were sitting on the ground? A. Yeah, yes. Q. And did anyone tell you to sit on the ground? A. Yes, the police officer. Q. Now, did any of the police call out or say any words? A. Yes, they did, yes. Q. We were probably given all this but I couldn't hear it. What did they say? And what sort of a voice was it? A. They were loud, very loud-- Q. A loud voice? A. Loud voices, yes. "You guys were attempting to steal this--" Q. Just take it slowly. What did they say? A. They say we were attempting to steal the watches and that we were holding on, holding on, on the glass and drawers attempting to break in and steal. Q. Yes, what else did they say? A. They said we were not allowed back in the store because we are thief and we are attempting to steal. I mean, we were acting like thieves. Q. Now, you say this was in a loud voice? A. Yes, it was a very loud – very. It was very embarrassing, very embarrassing. Very embarrassing to see. Q. Were there any people in King Street-- A. Yes, there were hundreds. Q. --standing and looking? Or passing by or what? A. Yes, sir. There were hundreds of people. Standing, looking, passing by. It was, it was very embarrassing, I mean." (T 42 line 23 – T 44 line 12) 48. Mr Lassanah was visibly upset as he described this. At T 52, he described what happened as being: "… Police said – the Manager of the store said that [not transcribable] guy was in his – in the shop, intending to steal watches, and he said "We are stopping you guys because the guy was in the shop, intending to steal", "Don't go in the shop. You guys are intending to steal". And they also said we were holding on the drawer and glasses in an attempt to steal." 49. Mr Lassanah went on to say that he was told that if he did not co-operate he would be handcuffed and have to go down to the police station, and the police officer had his hand on the handcuffs when he said this. 50. An important feature of this conversation was that the first plaintiff told the police immediately that the second plaintiff had an intellectual disability. When they were told to sit on the footpath, the second plaintiff was attempting to stand up and the police officer said: "Sit down. Do you want to be a tough guy?" To which the first plaintiff said: "No, he has an intellectual disability" (T 54). This was, or should have been, important information to police officers conscious of their obligations under the Law Enforcement (Powers and Responsibilities) Regulations 2005 (NSW) (rr 24 and 27) concerning "vulnerable persons". 51. It was necessary for the police to take the particulars of each of the persons they had detained. Mr Lassanah provided his name and address and in response to a request handed over his driver's licence. 52. The contents of Exhibit E and F set out the information the police officers notes in relation to their attendance at the scene. Constable Coates obtained the following information: "POI: Aaron ODDIE DOB: 14/02/1979 29 Years Old Rydalmere Address – Exact unknown IPED, searched, Nil find No ID" [Constable Coates explained his reference to IPED at T 342.] 53. Mr Lassanah provided his driver's licence (T 184). As for Mr Oddie, Constable Ansted explained how Mr Lassanah acted on his behalf: "Q. What about Mr Oddie? Did Mr Oddie say anything to you? A. No, because Mr Lassanah I recall spoke on behalf of Mr Oddie and I do recall him doing that, because he did say to me that Mr Oddie had a mental disability or something similar and he spoke on behalf of Mr Oddie." (T 178) 54. The information in Leading Senior Constable Ansted's notebook consisted of Mr Lassanah's address and motor vehicle licence number and the name (misspelled) of Mr Oddie together with an address. Apart from the name and address of the Tag Heuer manager, Mr Guidi, there is no other information in his notebook. 55. It is important to note a significant feature of this investigation – the total lack of any written record of any kind apart from these names and addresses. Not one of the other police officers who attended made notes of any kind of what had been alleged, or what conduct they were investigating, or of any questions that were put to the plaintiffs (in fact, no questions were put to the plaintiffs, according to the unchallenged evidence of Mr Lassanah). The COPS entry, which is Exhibit E, notes only "BONA FIDES CHECKED. SEE BELOW" but there is no further information. 56. The plaintiffs were searched and enquiries were made on the radio. It was at this stage that the police became aware that Mr Oddie's prior record consisted of Mental Health Act matters as a juvenile (Exhibit G). Mr Lassanah had no prior criminal history. 57. The police officers went inside to speak to the store staff. When the police returned, Mr Lassanah said one of the officers stated: "You guys were intending to steal again. Don't go in the shop. Don't talk to no-one. You guys just go home" (T 54). 58. Mr Lassanah replied: "Officer, can you please hear my side of the story?" This police officer said: "No. Listen mate, if you want – if you want to tell your side of the story I think you should say it in Court", to which the first plaintiff replied: "Okay, okay". 59. The following occurred at T 54: "Q. This was said to you after the police had been inside the shop, is that right? A. Yes, yes. Inside the shop, yes. Because after I said, I said, "But can I talk to one of the – can I talk to the manager and see why he accused me of trying to steal the watch?" But he said, "No, don't talk to no-one. They don't want you in the shop. Just stay here." 60. Having been ordered to go home, Mr Lassanah said he did so, although his driver's licence had not been returned to him. He said he was so distressed when he left the city that he nearly had a car accident on the way home (T 56). His state of distress in recalling these events was apparent in the witness box (T 56). The CCTV footage 61. There were considerable problems ascertaining the precise timeline of the CCTV footage because the time on the CCTV footage was incorrect. This has now been corrected by an updated index to the CCTV footage, which is Exhibit 4. 62. The plaintiffs can be seen entering the store at 13:58 hrs (the reading is 13:58:30). The first plaintiff engages in discussion with the male store employee and the second plaintiff remains close to him, although he moves, on several occasions backwards and forwards. On one occasion, according to the camera outside the store and the second defendant's written submissions, the second plaintiff can be seen to rest his hands on one of the glass cabinets. He then exits the store, at 14:03:34, and can be seen standing around outside the shop, near the front door and front window. It is at this stage that the male shop attendant opens a locked cabinet to show the first plaintiff watches (14:04:39). 63. At 14:04.54, a female shop assistant is seen going to the shop counter and appears to be reaching for something below the counter. The first plaintiff continues to have a discussion with the male shop assistant, and at 14:07:05 leaves the shop and, together with the second plaintiff, turns right and walks east towards Macquarie Street. 64. No evidence was called by the second defendant. Neither of the shop assistants who are seen in the CCTV tape gave evidence although it was made clear to the Court by Mr Rasmussen, counsel for the second defendant, that they were available; he made a decision not to call these witnesses (the hearing was in fact briefly adjourned to suit the convenience of one of these witnesses, who was then not called). 65. The precise time at which the hold-up button was pressed is unclear. Although it is put to me in submissions (paragraph 26, second defendant's submissions) that this occurs at 14:04:54 – 14:04:57, two minutes before Mr Lassanah leaves, there is no other evidence of this; the female shop assistant can be seen bending down under the register to do something at 14:12:29 and 14:13:09, both of which occur after the plaintiffs have left the store. 66. From 14:07:38, the male store employee is seen at the store entrance, looking down King Street, in the same direction as the plaintiffs had gone, for about the next 2 minutes. And at 14:10:09, he walks down King Street. There is then a gap of about three minutes. The police arrive at 14:13:21. 67. The only question put to Mr Lassanah about his conduct in the shop by counsel for the second defendant was whether, in the course of talking to the sales assistant, Mr Lassanah had asked what the best price might be on a particular watch that was being shown to him, with the intention of bargaining with him in some way (T 146). It was not put to Mr Lassanah that his conduct whilst in the shop was anything other than entirely proper. 68. Mr Lassanah was asked about the conduct of Mr Oddie, and whether he showed signs of being very restless, to which he replied "He did show signs, yes" and that this included pacing back and forth (T 146). 69. While the first defendant has made an attack on Mr Lassanah's credit, in asserting that the evidence of the police should be preferred as to the words actually spoken and the circumstances of arrest, no suggestion has been put that the Mr Lassanah's description of his own conduct in the shop, or of the conduct of Mr Oddie, was dishonest or inaccurate. Nor was anything put to Mr Lassanah during cross-examination that the conduct of either of them warranted the pressing of the hold-up button. This brings me to consideration of the issue of the police evidence generally and of Mr Lassanah's credit. The evidence of the police 70. The plaintiffs submit (written submissions page 9) that the police officers, who all stationed at The Rocks, "may have put their heads together for a cover up" on the basis that there were the following glaring discrepancies in their evidence. This is strongly disputed. I shall deal with each of the matters the plaintiffs raise in submissions: (a) Whether or not the plaintiffs were made to sit on the footpath or with their feet in the gutter : Constable Coates agreed that Mr Oddie was made to sit down, and that he was told to sit down because it was "an officer safety technique that we use" (T 347). He said he was unable to remember whether Mr Lassanah was sitting down as well. Constable Coates was the police officer whose role in the investigation was to supervise the plaintiffs. His memory as to his own activities is more likely to be accurate than the recollection of his colleagues. However, the other police officers were insistent that the plaintiffs were not made to sit down (Ansted – T 178, 225-226; Axford – T 331-332, Coates - T 344; Gibson - T 372, 378). This insistence, in circumstances where the police officers made no notes of the investigation in their duty books or notebooks beyond the names and addresses, or otherwise kept any written record of the event, is submitted by the plaintiffs to raise a doubt as to police credibility and "suggests a cover up" (written submissions page 9). For reasons discussed in more detail below, I have accepted the evidence of Mr Lassanah that he and Mr Oddie were made to sit down, and I do not accept the evidence to the contrary of these officers. (b) The failure to recognise that Mr Oddie suffered from an intellectual disability : One of the police officers, Constable Axford said that Mr Oddie's intellectual disability "was pretty easy to pick" (T 338). However, Constable Ansted said "he looked like a normal person" (T 292) and Constable Lentfer denied that any intellectual disability could be observed (T 312-313). Constable Lentfer said he was able to have a conversations with Mr Oddie: "Q. For example, what did Mr Oddie say when you asked him to-- A. I can't remember exactly the words that were said, but it was just questioning why we had stopped them and-- Q. This is Mr Oddie said this. A. Both of them were. Q. Yes, but can you remember each one by each one? That's the thing. If you can say, "Mr Oddie said this, and Mr Lassanah said that." If you can just remember-- A. I can't remember exact wording, but what they were trying to say was I can't search them. I have no reason to search them. I'm invading their rights. I can't touch them. I'm not allowed to go into their pockets." (T 301) It is clear that there must have been some conversation with Mr Oddie in order to obtain the inadequate particulars in Constable Coates' notebook of his address (Exhibit F) and the address in Leading Senior Constable Ansted's diary (Exhibit F). However, Constable Ansted agreed in cross-examination that "Mr Lassanah I recall spoke on behalf of Mr Oddie and I do recall him doing that, because he did say to me that Mr Oddie had a mental disability or something similar and he spoke on behalf of Mr Oddie." (T 178). I also note, in relation to this conversation, that it was never put to Mr Lassanah that he refused to permit the search, or that it was an invasion of his rights. The likelihood of Mr Oddie being able to articulate an invasion of his rights is implausible. Constable Coates said he could not recall what Mr Lassanah or Mr Oddie said, but said they were "argumentative" (T 340-341): "Q. Do you recall whether anything was said about identification? A. Yeah. Q. What was said? EVATT: Maybe you should just ask what was said. NEIL Q. What was said? A. I don't recall exact words. Q. Do you recall hearing and understanding any words said by Constable Ansted to the men? A. Yes. Constable Ansted told the men why they were being stopped. Q. Can you recall what he said? A. Not exact quotes, but I do recall that his explanation was that he'd been told that they were possibly attempting to steal something out of that shop; the TAG Heuer shop. Q. Did you hear anything the men said? A. I can't recall what they said, but I remember they were argumentative." In other words, Constable Axford knew from observation, Leading Senior Constable Ansted was told almost immediately by Mr Lassanah about Mr Oddie's disability, while Constables Lentfer and Coates denied any disability and claimed to have had conversations with Mr Oddie. It should have been apparent to each of these police officers that they were dealing with a person who is incapable of giving his address coherently, and Mr Lassanah, who is doing so on his behalf, was his carer. In fact Constable Lentfer said that Mr Lassanah identified himself as Mr Oddie's psychiatrist, or psychologist, and carer (T 318). As to the practical reality of Mr Oddie having a meaningful conversation with these police offices, I have the advantage of the report of Dr Reddel (Exhibit B): "On examination, he has very limited vocabulary, saying "Yeah" a lot. Occasionally, he uses short sentences. There is some stereotypical thought. He quite likes rapping knuckles with myself while saying "Life". He has occasional spontaneous movements but little by way of chorea. He has a flat affect. He was completely disoriented to place and time. Immediate recall was 2/3, short-term memory 0/3, and no recall of being asked to do so. He has no functional mathematics. There was some confabulation, for instance whether he has been here before, whether he had met me, and a few other details. He can count and did not display any field problems. Basic comprehension of sentences was very limited, saying that a daffodil was purple, before correcting when I asked him again to yellow; and saying "slug" when asked what animal has a shell. What aspect of this is simply impulsiveness is hard to tell. I could not get a fundal view. There were no long tract signs." As noted above, examination of the police notebook confirms that Mr Oddie was unable even to give the police officers his address. It should have been obvious that he was intellectually disabled. Finally, the information the police officers received over the radio indicated that they were dealing with a person who had a prior history of Mental Health Act matters which should have triggered an alarm for them that they were dealing with a person with mental health issues. They were also told this from the very beginning by Mr Lassanah. In his own evidence, Mr Lassanah said that (at T 54) when he was told to sit down (which was at the very beginning of the incident), he informed the police of Mr Oddie's intellectual disability: "Q. Now, you said something in the last answer about "sit down"? A. Yes. Q. What was that all about? A. Because Aaron has an intellectual disability and Aaron was attempting to stand up and he said, "Sit down. Sit down." Q. Is that what the police said? A. Yes. "Sit down. Do you want to be a tough guy?" I said, I said, "No, he has an intellectual disability."" Police officers receive training to enable them to identify person who are vulnerable persons. They are aware of the need for a support person to be present during investigations and enquiries and this entitlement is not limited to a formal interview or to a period in which an alleged offender had been arrested or is in custody. It applies to "any investigative procedure": Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), r 27. The police officers' denial of knowledge of Mr Oddie's intellectual disability is submitted by the plaintiffs to be further evidence that the police "put their heads together". It is hard to understand how these experienced police officers could have overlooked so many clues. (c) The discrepancy concerning the extent of conversation and volume of the words spoken by the police : The police claimed that the two plaintiffs were argumentative, wanting to know the reason for their arrest, and was speaking in loud voices (evidence of Leading Senior Constable Ansted at T 224; Constable Coates T 347). Given Mr Oddie's almost complete inability to speak, this is implausible. So is the claim by Leading Senior Constable Ansted that he was speaking probably "a bit lower than an ordinary voice" (T 255). I have set out below, in more detail, my reasons for accepting the evidence of the plaintiffs, but the similarity and precision of the evidence of tones of voices (especially in circumstances where Constable Coates, for example, could not remember what was said by the plaintiffs in their loud voices – T 341) is implausible. (d) Description of the scene in King Street : Leading Senior Constable Ansted said that it was not that busy in King Street at the relevant time (T 256) and he did not see anyone standing around looking. Constable Lentfer similarly denied that people were standing around looking (T 315). Mr Lassanah's evidence was that there were hundreds of people "standing, looking, passing by" (T 44). The CCTV footage clearly demonstrates this; 312 people were counted as having walked past (Exhibit H). The police had been called to an armed robbery scenario and would have wanted members of the public to keep away. Claims of speaking in a soft voice and that not seeing any bystanders at the time, in the context of one of Sydney's busiest streets just after the end of the lunch hour rush period, are implausible. (e) The conduct of the police towards Mr Lassanah in which Mr Lassanah was further humiliated by having his driver's licence taken from him and not returned to him : Mr Lassanah said in examination in chief (T 63): "Q. Now, did the police take any - sorry, that's leading. Did anything happen to a document you had on you with the police? A. Well, they took - one the officer took my driver's licence, and I called him, like, for years and for months, he refused..(not transcribable).. Q. They took your driver's licence at the scene of the-- A. Yes, yes. Q. --incident? A. Yeah. Q. And when did you get it back? A. Never. Q. You never got it back? A. Never, no. Q. Have you asked for it back? A. I did, I did. Q. How many times? A. I lost count, I lost count. All the time I call him. Q. And they've never returned your driver's licence? A. Never. Q. And how do you feel about that? A. I feel like he held something against me. I don't know why." It was put to Mr Lassanah in cross-examination that he was lying about this, and that his driver's licence had not been retained. Mr Lassanah said the following under cross-examination (T 67-68): "Q. Did the policeman also say to you anything about asking you for identification? A. Yes. Q. You say he didn't mention any law on which he was asking you to wait. A. No, no. Q. Did you provide some form of identification to him? A. Yes. Q. Was that a driver's licence? A. Yes. Q. Did you give it to Officer Anstead? A. Yes. Q. Did you see if he passed it on to another officer? A. No, because my back was turned. My back was turned. Q. Did you ask your solicitor, within a few days of these events, to request the police to return your licence? A. Yes. Q. Did it not come back to you within a few days? A. No. Q. Are you sure of that? A. I'm positive. Q. What did you do about getting another licence? A. As a matter of fact, a few of the..(not transcribable)..I bought a car and it's sitting there - purchased this car, I went and got another driver's licence, and I do have proof - the guy that sold me the car, he took me down to the RTA, and we got another driver's licence. Q. How soon after the events was that? A. I'm not sure. A week or two. Q. Could you have got your original licence back after going to get the new car? A. Maybe. I didn't receive anything from the coppers. Q. Did you keep asking your solicitor to make an inquiry? A. I did." After Mr Lassanah mentioned a number of letters that was sent to the police by his solicitor, this allegation was withdrawn. This correspondence was not tendered, but it was not tendered because of this concession by Mr Neil QC (at T 84): "NEIL: One thing I just want to deal with, I hope, shortly, before we play the tape, your Honour. Could I just put something? Q. Mr Lassanah, I want to withdraw any suggestion that you got back your licence. My client accepts you did not receive your licence back. Do you understand that? A. Yes." Mr Lassanah was told to go home by the police in circumstances where they must have known that to go home he needed to drive his vehicle. Whether or not Mr Lassanah was deprived of his motor vehicle licence by oversight or carelessness, as was asserted by Constable Lentfer (T 302) the failure to return this licence, especially after requests from Mr Lassanah's solicitor, is not to the credit of either Constable Lentfer or any other police officers involved. Nor was it to their credit that Mr Lassanah's account of having his licence removed and not returned was challenged in the way it was. The first defendant's submissions as to the credibility of the police 71. The submission as to credibility of the police made at page 8 of the first defendant's written submissions is as follows: "It is submitted that the police acted appropriately, in accordance with their duty. As Sgt Gibson said they acted professionally. They were highly credible. Their evidence was clear, honest and reliable. It is submitted that it should be found that the Plaintiffs were in no way mistreated, they were not ordered to sit in the gutter, nor threatened with handcuffs and the police did not use loud voices." 72. Although some brief examples were then given, this is essentially the totality of the submissions of the defendant on this issue. 73. Submissions concerning the credit of witnesses are issues which need to be dealt with carefully by the court, for the reasons explained by the Court of Appeal in Nominal Defendant v Kostic, supra. The Court of Appeal's warnings concerning the manner in which evidence on credit should be addressed by the court apply to the parties as well as to the judges whose judgments are dependent upon their submissions. A submission that a witness' evidence is "highly credible", "clear" or "reliable" is not of the same assistance to the court as a careful analysis of the evidence in order to answer the specific issues raised by the plaintiffs, discussed at [70] above. 74. The first defendant submits that any discrepancies in the police evidence are simply "indications of honest witnesses who have not put their head together" (first defendant's written submissions, paragraph 28). This is coupled with the invitation to me that, as I have "seen the police in the witness box and heard Sgt Gibson on the telephone", I could rely upon the police officers' demeanour in the witness box to disregard the matters outline by the plaintiffs in submissions. I am satisfied, however, that the matters raised by the plaintiffs cast doubt upon the accuracy and reliability of the police evidence, particularly in circumstances where it is not corroborated by contemporaneous police records of any substance. 75. There are other, less important, matters concerning the issue of credit of police. The first of these is whether or not there was racial disparagement of Mr Lassanah, who is black. It is the case that Mr Lassanah gave no evidence of any act or word of disparagement. Leading Senior Constable Ansted's answer at T 219 that he was "impartial to all cultures" misses the point; the fact that Mr Lassanah was black was a reason, albeit a very small one, for caution, especially in circumstances where it was clear from the first few moments that no robbery or attempted robbery had taken place. 76. The first defendant's explanation for the police officers missing the fact that Mr Oddie was intellectually disabled is: "The fact that Axford thought the Second Plaintiff had some problem of mental capacity merely means that she was more perceptive than the men. In any event the Second Plaintiff was not mistreated." (first defendant's written submissions, paragraph 23) 77. I assume that this is simply unfortunately drafted, but if it is seriously submitted that Mr Oddie's intellectual disability was only able to be picked up by Constable Axford because she was a woman, then that is a submission which I reject. The CCTV footage 78. An issue not raised in the plaintiffs' list of matters in written submissions, but referred to in the evidence and in oral submissions, is whether or not any of the police officers actually watched the CCTV footage of the plaintiffs in the Tag Heuer shop. 79. The only officer who claimed to have looked at the CCTV footage was Sergeant Gibson, who spent a total of five and a half minutes in the shop, in two visits. Mr Evatt put to Sergeant Gibson: "Q. Can I suggest you did not see any videotape in that shop? A. No. I did" (T 376) 80. Sergeant Gibson gave evidence over the telephone, because he was at home suffering from an injury. He had little or no recollection of the events in question and was unable to answer many of the questions. His assurance that he had seen the videotape is not supported by any contemporaneous record he made in his notebook or police diary. The timing of events, and the precision with which we can identify exactly how long the police officers were at the premises, mean that it would have been impossible for Sergeant Gibson to have seen the whole of the CCTV footage. 81. The sequence is as follows. Sergeant Gibson is seen at the western front of the shop for a few seconds at time interval 14.20.33 and he enters the shop at 14.21.03, leaving the shop four and a half minutes later at 14.25.36. He re-enters the shop at 14.27.03 for one minute only. It is not suggested he looked at the CCTV during this second brief visit. If he had, it would have been very brief. There is no evidence before the court as to how he was able to view what was on the CCTV, if I were to assume that the staff had been able to stop one of the cameras and wind it back to the incident in question. 82. If I deduct one of the four and a half minutes that Sergeant Gibson is in the shop for the first visit, to allow for introduction, discussion and the setting up of the film, that means that he had a little more than three minutes to watch the film from one or more of the cameras (I was not told which tape he saw). In view of Sergeant Gibson's inability to remember events and failure to make notes at the time, I can only speculate as to what, if anything Sergeant Gibson saw. Lack of corroborative police documentation 83. A further oral submission made by the plaintiffs is that, although three police cars attended the scene and the matter was a serious and urgent one, there is no contemporaneous note of any statement or other information made by any of the police other than the names of the parties. 84. Constable Coates' notebook (Exhibit F) notes only the name, date of birth and age for the second plaintiff, noting his address as "Rydalmere address – exact unknown", an indication of the degree of lack of communication that existed between the second plaintiff and the police officers who searched him. There is a note of "Searched, nil found" and "No ID". 85. Leading Senior Constable Ansted recorded the name and address for both plaintiffs as the persons of interest, and the name and address of the store manager, Mr Guidi. 86. The Tasking Sheet notes that between 2.50 pm and 3.10 pm they were answering an alarm at the Tag Heuer premises; there is a second sheet for Constables Lentfer and Axford, giving the times as 14:55 to 15:08. 87. Evidence was given by the police as to what occurred. However, only Sergeant Gibson saw the CCTV. The following occurred in cross-examination: "Q. What were the persons doing when you saw the screen? A. I don't recall. I can't remember. Q. Well, did you see them doing anything wrong? A. From what I recall and what I was told, I agreed with the Manager that the two males were acting suspiciously at the time in the store. But I don't recall the exact actions they were doing. Q. Was that because of what you were told by the Manager, or because of what you saw, or both? A. Both. Q. Well can you describe one thing you said you saw to justify your view that the men acted suspiciously? A. No, I can't. I can't recall. Q. When you saw the screen were both men in the shop, or only one man in the shop? A. I don't recall. Q. It would have to be both, wouldn't it, because you said you saw the two men? A. I don't remember, sorry. Q. You haven't got a clue as to what you saw, have you? A. I don't remember due to the length of time what I saw on the footage. I remember viewing footage and I remember forming the opinion that I agreed with the Manager, but I can't tell you exactly what they were going in the store, no." (T 377) 88. Particularly relevant is the lack of any inquiry of the plaintiffs as to what they were doing in the store or how they had conducted themselves. 89. The police were aware of Mr Lassanah's occupation, although it was not noted in their records; Constable Lentfer recalled (T 303) being told that the first plaintiff was the second plaintiff's "psychologist or psychiatrist", although he thought this happened towards the end of the enquiries. He clearly took the first plaintiff for a professional person. 90. I reject the submission of the second defendant, that there is sufficient material for me to make a finding that the perception of the plaintiffs' behaviour as acting suspiciously and trying to manipulate the cabinets warranted the pressing of the hold-up button. Not only is there no evidence of this on the CCTV, but it was never put to the first plaintiff in cross-examination. . 91. Viewed objectively, there is nothing in the CCTV footage to explain the conduct of the second defendant's servants or agents. There is no evidence of the plaintiffs attempting to lift the lids of cabinets. The reasons for these allegations being made against the plaintiffs are unexplained, as are the reasons for persisting with these claims after the police arrived. Whose version of events should be accepted? 92. The first defendant in written submissions (paragraphs 18 – 34) submits that I should not accept the evidence of Mr Lassanah, the first plaintiff, as to what was said. This is partly an attack on his credit and partly an assertion that his recollection was "faulty" (paragraph 18). In order to answer these claims it is necessary to refer, once again, to the evidence discussed at [70] above. 93. The difficulties with Mr Lassanah's evidence set out in the first defendant's written submissions are: (a) There are differences between his answers to interrogatories and his evidence in court, in that he said that the police only ever referred to the manager of the Tag Heuer shop once, and he does not refer in the answers to interrogatories to asking the police if he could go back to the Tag Heuer shop and ask why they called the police. Mr Lassanah's evidence was consistent with the substance of the interrogatories. It is not the purpose of interrogatories to set out the full "I said – he said" text of what was said. The portion of Mr Lassanah's evidence concerning asking the police if he could go back to the Tag Heuer shop was not part of the matter complained of, but that makes no difference to the sting of the imputations. (b) Mr Lassanah gave evidence about handcuffs (T 53 line 16) which the police "denied or it wasn't put to them" (written submissions, paragraph 19(c)) and is "also wrong that he was forced to sit in the gutter". The police officers did deny that they said they would use handcuffs (T 183, 316, 331, 344) but it is not in dispute that they were carrying them. This is a matter where the evidence is in dispute, but the fact that it is in dispute does not mean that Mr Lassanah's evidence should be rejected. As to sitting down, as set out at [70] above, all but one of the police officers, Constable Nathan Coates, gave evidence that the plaintiffs were not ordered to sit down. The one officer who did give evidence (about the second plaintiff being told to sit down) was this officer, and he was in charge of keeping the plaintiffs detained while the other officers made inquiries. Constable Coates' evidence was as follows: "Q. Did either of the men at any stage - did either of them sit down? A. I do have a memory of Mr Oddie sitting down. Q. For how long? A. I couldn't tell you exactly. Q. Can you say for what portion of the whole events it was? A. It would have been less than half I'd say. Q. Whereabouts did you see that happen? A. Up against the wall and the glass door." (T 344) Mr Evatt put to Constable Coates that both plaintiffs were sitting down, and that they were doing so because they had been ordered to: "Q. Mr Oddie was sitting down. A. For a part of it. Q. That's because he was told to sit down. A. Yes. It's an officer safety technique that we use. Q. Mr Lassanah was also told to sit down. A. I can't remember. Q. Well, he was sitting down. You can remember that. A. I remember Mr Oddie sitting down. Q. But you also remember Mr Lassanah sitting down. A. No, I didn't say that. Q. You didn't say, I know, but you remember it. A. No. Q. Do you deny he was sitting down? A. No. I just don't remember either way." (T 347; bold type added) This was repeated at T 351: "Q. What about if you answer what was your understanding of the information that meant the police said they can go? What did you understand? A. Well, I wasn't involved - my main role there was an observer, okay. Leading Senior Constable Ansted was doing the main part of the investigation, so I did not have a great deal of knowledge. My job there was to watch the two plaintiffs, for safety reasons. EVATT Q. What safety reasons? A. Whenever police deal with somebody on the street there's officer safety. We have to look out for each other and ourselves. We don't know who we're dealing with each time. Q. That's why they're often directed to sit down, is it? A. Correct. Q. And they were both directed to sit down on this occasion? A. I don't remember. Q. Well, at least one of them was. A. I remember one was sitting down. " [emphasis added] I accept Mr Lassanah's evidence that he and the second plaintiff were ordered to sit down. I also accept that it was in this context (namely being ordered to sit down) that he was told that if he did not comply then handcuffs would be used. Mr Lassanah said that he accordingly sat down. He said he was told to sit on the footpath with his feet in the gutter, and since the rest of his evidence is correct, I am prepared to accept this. The "alcove" referred to was some space in front of the wall of a shop on King Street, and the CCTV clearly shows a number of passers-by walking in this area. Another matter asserted to be incorrect is that the statement Mr Lassanah said the officer in question made when they were told to sit down, namely the statement "Do you want to be a tough guy?" (T 54 line 14), to which Mr Lassanah replied, on Mr Oddie's behalf, that he was intellectually disabled, "was not put to any of the police" (paragraph 19(e) of the submissions). Mr Lassanah did not know the identity of the police officer to whom he spoke these words. This would put the obligation onto counsel for the plaintiffs to put this to every officer. In addition, counsel for plaintiffs was not obliged to put it to these officers, as Mr Lassanah was not cross-examined about this statement. This conversation was put, albeit partially, to one of the police officers that he was told right at the outset that Mr Oddie had an intellectual disability: "Q. So are you saying that nobody asked them any questions for the period of time from 1451 to 1459, no questions were put to them? A. Well, there would be no reason to ask the question because he looked like a normal person. To look at - he didn't really speak, so it wasn't until Mr Lassanah mentioned at the time the CNIs and the identification was being requested, during that conversation, that he mentioned - of course he kept speaking over the top of Mr Oddie, who I believe spoke generally okay, he spoke on top of him and made the point that he had an intellectual disability. EVATT Q. Didn't Mr Lassanah tell you that right at the outset ? A. At that point in time, that's what he said. Q. No, no. Right at the outset when you first stopped him, soon after. A. No, I don't believe so, no." (T 292 – 293; emphasis added) Whether or not the police officer said to Mr Oddie "Do you want to be a tough guy" pales into insignificance compared to the importance of Mr Lassanah's explanation for Mr Oddie not appearing to understand why he should obey the command of this police officer to follow his orders. (c) Mr Lassanah gives "unacceptable" evidence that about 50 – 100 persons watched and heard the discussion between himself and the police. It is asserted that if there was such a crowd of persons it would be seen on the footage. The submissions state at paragraph 19(g) that Mr Lassanah "claims (wrongly it is submitted) to be accurate about these figures" Mr Lassanah was giving a general estimate. In fact the footage on the CCTV camera supports the plaintiffs' claim as to the number of persons going past as being more than this. An employee of the plaintiffs' solicitor made a statement (Exhibit H) carefully counted, on the CCTV footage, the number of passers-by for the seventeen minute period during which the CCTV footage covers the detention of the plaintiffs. A total of 312 persons walked past. The first defendant's submissions also do not take into account that the footage for the security camera for the precise place where the plaintiffs were detained is not available. The CCTV footage from the shop shows the inside of the shop and the passers-by are seen in the distance walking past who would have been able to see the plaintiffs. King Street, even after lunchtime, is a busy street. The first plaintiff's estimate that of the more than 300 persons who walked past, 50 – 100 slowed down or looked at him is not "unacceptable" evidence. The assertion by Mr Lassanah that "all" these 50 – 100 people were just standing there looking (T 44 line 46) is understandable in such circumstances, and is not "difficult to believe" (defendant's written submissions, paragraph 19(n)). Similarly, Mr Lassanah's belief that people were avoiding him 100 yards away for 5 to 6 minutes after being released is an understandable perception by a person who has just been stopped and searched by police officers and made to sit on the footpath. Mr Lassanah's heightened awareness of people avoiding him is not a perception that is "difficult to believe" and one which casts doubt on his evidence (written submissions paragraph 19(o)). (d) The next issue upon which it is asserted Mr Lassanah's evidence should not be accepted is because statements he said he made, such as "Can I talk to the manager" and "You guys just don't go in the shop, just go home" were not put to the police officers in cross-examination. Mr Lassanah did not know which police officers he was speaking to. In addition, Mr Lassanah was not cross-examined about this evidence, which was not challenged during cross-examination. Ideally the cross-examiner could have put all these statements to all the police, but the obligations of cross-examiners to put every statement to every witness in such circumstances need to be seen in light of s 46 Evidence Act 1995 (NSW) and s 56 Civil Procedure Act 2005 (NSW) and the obligations to put Browne v Dunn matters only ( Browne v Dunn (1829) 3 Sim 23; (1829) 57 ER 909) where the evidence is in dispute: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 44 ALR 607; (1983) 70 FLR 447; (1983) 83 ATC 4015; (1983) 13 ATR 825. Mr Lassanah can clearly be seen pointing a finger at the manager as he walks past the store after he is released, which I consider corroborative of his request to speak to the manager and his warning to the police that he would take the matter further, as is the evidence about the police telling him they were not interested in his side of the story, and that he could tell his story to the court. (e) The final matter raised by the first defendant is that at T 40 line 21, Mr Lassanah said that during his visit to the shop he and Mr Oddie were the only customers, while the CCTV footage shows other customers entering during this time (submissions, paragraph 19(p)). Mr Lassanah is correct in that he was the only customer being served by the Tag Heuer staff. Other persons are seen entering and leaving the shop, but they all walk past the plaintiffs and the shop staff. When the CCTV tape was shown in court, I asked who these people were, and made the following observations of the tape content: "HER HONOUR: Now, who is this lady coming in? A customer? Well, she's walked straight in and down the back of the shop. And who's this fellow? Who's that fellow now? Who's this - no? Well, who are these other people who are in the shop? EVATT: Who would know. HER HONOUR: Well, they don't seem to be being served. They seem to have walked right down the back. EVATT: ..(not transcribable)..sold too many watches. HER HONOUR: Is there another camera. RASMUSSEN: Two others. EVATT: Who's that? HER HONOUR: Is this a customer?" (T 90) This was explained to the court by Mr Rasmussen as follows: "HER HONOUR: Who's this coming in now, a customer or a shop assistant, or aren't I to know? NEIL: Your Honour would have to ask Mr Rasmussen. I can't help on that. HER HONOUR: It's difficult to see the film and not understand what's going on. Just tell me if anybody relevant comes or go. RASMUSSEN: I understand that sometimes the customers come in and out because upstairs - and this is not the evidence yet, of course - is a repair part of the shop as well, and there are offices upstairs as well, so people come in and out. HER HONOUR: I see. Thank you for that, Mr Rasmussen. That's very helpful. RASMUSSEN: That's my understanding. I think the only way they can get in is through the front entrance." (T 95-96) The first plaintiff's version of events is correct. He and Mr Oddie were the only persons in the Tag Heuer shop being served. The other persons were going to offices upstairs or to the watch repair premises at the back of the shop. 94. For the reasons set out above, none of the matters raised by the first defendant in written submissions is considered by me to be a basis upon which I should reject the evidence of Mr Lassanah. 95. This brings me to the question of the evidence of the second defendant. The evidence of the second defendant 96. The second defendant called no oral evidence and published the following apology in Court to the plaintiffs: " APOLOGY TO MR LASSANAH and Mr Oddie (to be read in Open Court by counsel) By way of explanation, we wish to indicate that the staff of Tag Heuer were very concerned about the behaviour of Mr Oddie & Mr Lassanah at the time of the incident on 10 June 2008. However now that we have become aware of the nature of his disability his perceived behaviour has been placed in its proper context. As a result, we wish to apologise unreservedly for the hurt and upset occasioned to Michael Lassanah and Aaron Oddie when members of the NSW police attended outside our shop on 10 June 2008. With the benefit of hindsight we acknowledge that neither Mr Oddie nor Mr Lassanah did anything wrong. We hope that Mr Oddie and Mr Lassanah will accept our sincerest apologies expressed through our counsel and that they will once again feel welcome in our Tag Heuer stores." (Exhibit 3). 97. However, the second defendant's version given to police on the day in question was, according to the police officers who were called and were cross-examined, very different: (a) Leading Senior Constable Ansted said that the manager of Tag Heuer told him the plaintiffs were both acting suspiciously in the shop, in that they had been tapping on the glass, trying to lift the glass of the display cabinets, and that they were about to rob or attempt to steal from the shop. (T 207, 218). It was on the basis of that information that the plaintiffs were stopped (T 207). (b) Leading Senior Constable Ansted was asked: "Q. When you went back the first time into the shop, were you told that all that information was wrong? A. No." (T 207) (c) Sergeant Gibson told Leading Senior Constable Ansted that the plaintiffs were seen on footage tapping on glass and lifting up the lids. Sergeant Gibson gave evidence but had no independent recollection of what he had seen on the CCTV footage. There is nothing in the CCTV footage to show any conduct of either of the plaintiffs lifting up the lids of the cabinets, tapping on the glass or any other abnormal conduct. Accordingly, if Sergeant Gibson told Leading Senior Constable Ansted this, the most likely explanation is that he was told this by the manager of Tag Heuer, as this is what the manager of Tag Heuer also told Leading Senior Constable Ansted. 98. The explanation that is offered for the second defendant's conduct in pressing the hold-up button was that the Tag Heuer staff, observing the second plaintiff's conduct in the store, did not appreciate that he was intellectually impaired and assumed that his conduct in the store was an indication that he was going to steal. It is asserted that while it was observed in Court that Mr Oddie was obviously intellectually disabled (page 9, paragraph 27 of the second defendant's submissions) "We were all forewarned of his intellectual disability by reason of the Statement of Claim" (paragraph 27) and were expecting to see a person who was intellectually disabled. In addition, it is submitted that he was observed in Court for a longer period, and whilst his mother was present. 99. The written submissions of the second defendant conclude: "Some people are more perceptive than others and there is no particular reason to presume that the Manager of the store or Ms Ahmet shared the perceptive powers of Constable Axford or even the lack of perception of other officers. They may well have been left in a middle state of mind, that is, in a state of puzzlement or not knowing." 100. Although the second defendant called no witnesses and puts nothing to Mr Lassanah to the effect that his conduct was in any way furtive or suspicious, reliance is placed on the "apparent perception of the plaintiffs' conduct can be gleaned from the three different CCTV footage views" (second defendant's written submissions, paragraph 24). Reliance is placed upon the fact that Mr Oddie is wearing "a dark beanie pulled down to just above his eyes" (written submissions, paragraph 24) and that he is seen "pacing about, sitting down, moving over to the same cabinet several times, standing close to Mr Guidi and Mr Lassanah, moving to the entrance to the store several times as if to leave, moving to the cabinet on the left hand side of the store and placing his hands upon it (with his back to the store manager)" (written submissions, paragraph 24). He appears to lean down and look into the cabinet. I am invited to assume, without the benefit of any evidence being called, that the conduct of Mr Oddie during the period of time that he is in the shop (a matter of four and a half minutes) was the conduct that caused suspicion and concern. It should be noted that it is not until Mr Oddie has left the shop that the male shop attendant opens the cabinet to show Mr Lassanah a watch. Mr Lassanah is shown the watch and leaves two and a half minutes later. 101. I have set out below in more detail why I do not accept the submissions of the second defendant that it was while Mr Lassanah and/or Mr Lassanah and Mr Oddie were in the shop that the alarm button was pressed. 102. I am invited to accept (second defendant's written submissions, paragraph 27) that Mr Oddie's intellectual disability would not have been apparent to the shop staff. This is despite the fact that it is conceded in written submissions at paragraph 27 that "it was observed in Court that Mr Oddie was obviously intellectually disabled", although it was claimed that everyone was forewarned by reason of the fact that a tutor was appointed in these proceedings. It is further submitted that "some people are more perceptive than others and there is no particular reason to presume that the manager of the store or Ms Ahmet shared the perceptive powers of Constable Axford or even the lack of perception of the other officers. They may well have been left in a middle state of mind, that is, in a state of puzzlement or not knowing" (written submissions, paragraph 27). 103. In circumstances where no evidence has been called, these are bold submissions in circumstances where, as the High Court stated in Insurance Commissioner v Joyce (1948) 77 CLR 39 at 49, the failure to call such evidence means that the court, not the person failing to call the witness, is entitled to be bold. 104. The conduct of Mr Lassanah in the shop, and his demeanour, is not the subject of any submissions from the second defendant, nor was he cross-examined about it. If Mr Lassanah's demeanour in the shop was the same as his demeanour in the witness box, he could not have been the subject of any of these mistaken beliefs. 105. I am not prepared to accept any of these submissions in circumstances where none of the store employees has been called to give evidence. The CCTV footage shows nothing improper in the conduct of either plaintiffs and in particular, none of the allegations made by the Tag Heuer manager to Leading Senior Constable Ansted can be made out. When was the alarm button activated? 106. Mr Lassanah left the shop at 2:07 pm. The police arrive at 2.13 pm. The police came to the scene very quickly as it was an urgent call over the police radio (T 167), which meant that lights and sirens were activated as an emergency job. 107. The discrepancy in time between the police receipt of the call at 14:14:59 has been explained as being due to the nature of CCTV footage and to inaccurate time measurements. According to the police, the call was received at 14:14:59 and they left the Tag Heuer premises at 15:11:19, meaning that the whole incident took half an hour of police time, the police were on the scene between 14:51:19 (T 171) and 15:11:19. Three cars came to the scene of the reported robbery. 108. Given the speed with which the police respond to such urgent calls, and given that there were cars in the immediate vicinity, as the emergency operator calls confirm, the time between the operator call at 14:44:20 and the response of the police (14:45:20) and the giving of the address (14:45:40) it can be seen that the police arrived at approximately 14:50 pm. By 14:51 the police were able to radio back to the operator: "Just information there's been an attempt robbery on the store we are just going to try and work out what actually happened here at the moment um and we will be speaking to two POIs who have been stopped by security so if you can let that other car keep coming and um – we will go from there." 109. At 14:51:20 the police confirmed they were speaking with the POIs. The police were therefore at the premises a matter of six minutes after the call. 110. The plaintiffs had left the shop according to the CCTV footage, at 14:07:05, walked up to Rolex, where the first plaintiff looked at some more watches, following which he walked back down King Street towards where the Department of Community Service hire car was parked. 111. At the time that the police car came past, the plaintiffs were still walking back from Rolex; they are seen walking past the shop according to the CCTV time, at 14:15:30, followed by two uniformed police, and they are apprehended just past the Tag Heuer shop. 112. The speed of the police response to the urgent call means that the time between the button being pressed and the police response is too short to be consistent with the second defendant's assertion that the button was pressed at 14:04:54, the time at which a female shop attendant is seen reaching for something below the counter. 113. For these reasons, I accept the submissions of the plaintiffs that the alarm button was most probably activated after the plaintiffs had left the Tag Heuer shop, in circumstances where there is no explanation or evidence as to why this occurred. Why did the second defendant's staff press the hold-up button? 114. Explanation of the reason for calling the police by a store assistant is of importance in cases such as these for the reasons explained by Ipp JA in Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299. 115. The police who were called said that in the majority of cases where the hold-up alarm button was pressed, it would turn out to be a false alarm. The emergency operator's report for 14:51 is revealing in that the police reported back to her: "Just information there's been an attempt robbery on the store we are just going to try and work out what actually happened here at the moment …" [emphasis added] 116. The use of the phrase "try and work out what actually happened here at the moment" is instructive. The police were aware this was not a robbery. They were not even sure there was "an attempt robbery". Secondly, it was not clear what had actually happened. In other words, there was no clear description given of what made the store think there would be "an attempt robbery". These words are important in determining the precise state of information that the police had when they first arrived at the premises. 117. If the explanation was some conduct of either or both of the plaintiffs which caused a store employee to believe a robbery was going to take place, even when they had left the shop, evidence to that effect would have been simple to call. Nor was there any evidence adduced of the robbery the second defendant's employees claimed had occurred in the shop the week before. The failure of the second defendant to call the shop assistants to explain when and in what circumstances the hold-up button was pressed, and about there being a recent robbery of the store, constitute grounds upon which I should draw the inference in Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278. 118. Having made these findings of fact, I now set out the relevant legal principles concerning the claim for wrongful arrest and false imprisonment. Does Mr Oddie's intellectual disability prevent him from making a claim for false imprisonment or defamation? 119. I briefly note a preliminary matter raised in oral submissions, namely whether Mr Oddie's intellectual disability means that he cannot make a claim for false imprisonment or defamation because he is intellectually incapable of knowing he has been restrained, or of suffering hurt to feelings. 120. The issue of false imprisonment of disabled persons was the subject of analysis in State of South Australia v Lampard-Trevorrow [2010] SASC 56 at [291] ff: "[291] In R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] UKHL 24; [1999] 1 AC 458 the House of Lords considered a claim for false imprisonment made on behalf of a man who was autistic and profoundly mentally retarded. He was unable to speak and his level of understanding was severely limited. He was incapable of consenting to medical treatment. The issue was the lawfulness of his removal to a hospital and detention there. The case turned on the application of provisions of United Kingdom legislation, and to that extent is not of any present relevance. The matter was somewhat complicated by the need to consider the question of necessity. The majority of their Lordships held, in all the circumstances, that there was not an actual detention, because the applicant had been placed in an unlocked ward and the possibility of lawful restraint, had he sought to leave, did not give rise to his detention in fact. However, we do not understand Lord Goff of Chieveley, with whose reasons the majority agreed, to have accepted that the applicant's mental incapacity, and lack of awareness of his situation, was a barrier to a claim for wrongful imprisonment succeeding: at 486. Lord Steyn dissented on the question of whether there was an actual detention, emphasising that an unconscious or drugged person can be detained: at 495. [292] In Murray v Ministry of Defence [1988] UKHL 13; [1988] 1 WLR 692 the House of Lords considered a claim for damages for false imprisonment arising from an arrest. Lord Griffiths, with whom the other members of the House of Lords agreed, denied that it was "an essential element of the tort of false imprisonment that the victim should be aware of the fact of denial of liberty": at 701. He went on to refer with approval to the following passage from the article "False Imprisonment: Consciousness of Confinement" by Professor Prosser in (1955) 55 Columbia Law Review 847 at 849: Let us consider several illustrations. A locks B, a child two days old, in the vault of a bank. B is, of course, unconscious of the confinement, but the bank vault cannot be opened for two days. In the meantime, B suffers from hunger and thirst, and his health is seriously impaired; or it may be that he even dies. Is this no tort? Or suppose that A abducts B, a wealthy lunatic, and holds him for ransom for a week. B is unaware of his confinement, but vaguely understands that he is in unfamiliar surroundings, and that something is wrong. He undergoes mental suffering affecting his health. At the end of the week, he is discovered by the police and released without ever having known that he has been imprisoned. Has he no action against B? ... If a child of two is kidnapped, confined, and deprived of the care of its mother for a month, is the kidnapping and the confinement in itself so minor a matter as to call for no redress in tort at all? [293] The analogies between the examples given by Professor Prosser and the present case are evident. As Lord Griffiths acknowledged, the Restatement of Torts had already been changed to require that the person is conscious of the confinement or is harmed by it, but Lord Griffiths said that he did not agree with that approach. [294] In Myer Stores Ltd v Soo [1991] 2 VR 597 two members of the Court said that a person can be imprisoned without knowing and appreciating that fact: Murphy J at 599, O'Bryan J at 615, cf McDonald J at 626. [295] It follows that it should not matter that the victim of the alleged unlawful restraint lacks the mental capacity, permanently or temporarily, to choose to resist the restraint in question. In Bournewood Community and Mental Health NHS Trust there is no suggestion that the plaintiff's mental impairment meant that he could not be the subject of a wrongful detention. A person who is asleep or unconscious, as postulated by Atkin LJ, is temporarily incapable of making the choice to resist or protest the unlawful restraint, but can be the subject of wrongful detention. And as Professor Prosser points out (above), surely a very young child who was kidnapped has a claim for wrongful detention. [296] Finally, we refer without setting them out to comments by Asche CJ in Go v The Queen [1990] NTSC 40; (1990) 73 NTR 1 at 20. His Honour said that there can be wrongful detention although it cannot be shown the detention was against the will of the victim, instancing as examples insane or very ill persons or very young children, each of whom might not possess the capacity to consent. [297] Although there is no case on point, in our opinion it should not matter that the person who complains of wrongful detention lacks or lacked the physical capacity to exercise the freedom of movement that was denied by the restraint in question. For example, assume a person confined to bed by reason of serious injury or illness, the person being completely unable to leave the bed in the room in which the person is placed. Assume that that person, against his or her will, is removed in the bed to another place and kept there against his or her will. Being unable to move from the bed, that person is incapable of exercising any freedom of movement. But, once again, surely the fact of removal and detention in another location would amount to wrongful detention, even though the person was incapable of moving from the bed in which the person remained at all times." 121. The question of whether a person who is intellectually disabled or otherwise incapable of reading or understanding the matter complained of can bring a claim for defamation has not been the subject of judicial consideration. I see no reason, however, why the same principles should not apply. The liability of the defendants for wrongful arrest and false imprisonment 122. Mere words may be sufficient to amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person's notice that he is under compulsion and he therafter submits to the compulsion: Lewis v Norman [1982] 2 NSWLR 649 at 655E per Enderby J. If there has been an arrest, the onus to prove its lawfulness will shift to the defendant: Zaravinos v State of NSW (2004) 62 NSWLR 58 at 63. 123. However, as set out in more detail below, I am satisfied that the plaintiffs were not in fact arrested. 124. There is no need for an arrest for an imprisonment to exist: Coles Myer Limited v Webster; Coles Myer Limited v Thompson [2009] NSWCA 299 at [35] per Ipp JA. False imprisonment occurs when a defendant's actions directly, intentionally or negligently cause the confinement of the plaintiff, for however short a period of time: Goldie v Commonwealth [2004] FCA 156 at [17] per French J. A person may be "imprisoned" without realising it (Myer Stores Ltd v Soo [1991] 2 VR 597 at 599 per Murphy J); the restraint may be sufficient if the plaintiff has a justified apprehension that if he or she did not submit, force could be used: Myer Stores Ltd v Soo at 625 per McDonald J. 125. The place of the arrest can be "in the open field, or in the stocks, or in the cage in the streets or in a man's own house" (Myer Stores Ltd v Soo at 599 per Murphy J, citing Meering v Grahame-White Aviation Co Ltd (1919) 122 LT Rep 44). 126. Fault and malice are irrelevant to questions of liability: Ruddock v Taylor (2003) 58 NSWLR 269 at 272. The elements of the tort of false imprisonment 127. The elements of the tort of false imprisonment have helpfully been summarised by the Victorian Court of Appeal in McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; [2007] VSCA 289 (McFadzean) (special leave to appeal to the High Court was refused: see McFadzean v Construction, Forestry, Mining and Energy Union [2008] HCATrans 213). These principles were reduced to a series of statements of principle in Whittaker & Anor v Child Support Registrar & Anor [2010] 264 ALR 473. I gratefully adopt the principles drafted by counsel for the respondent in those proceedings, as set out by Lindgren J at [177]: "(a) the plaintiff bears the onus of proof to establish that what happened (having regard to any restraints and any possibilities of egress) can be constituted as imprisonment; (b) false imprisonment is constituted by unlawfully subjecting another to total restraint of movement; (c) the restraint must be total but it need not involve the use of force – it is sufficient if there be submission to the control of another after being given to understand that without submission there will be compulsion; (d) the restraint may be comprised of a threat against the person or valuable property; (e) the restraint must be imposed contrary to the person's will; (f) where there is no application of force there must be evidence of complete submission by the plaintiff; (g) there is no false imprisonment if there is only partial obstruction of the will, whatever inconvenience it may bring, if the means of escape are available; (h) the submission by the prisoner must be in response to duress sufficient to make any consent given ineffective to bar the action; (i) it is not sufficient in law that conduct of the defendant has contributed to or influenced the plaintiff's decision to remain, the conduct must have overborne the plaintiff's will; (j) in each case, it is a question of fact whether a restriction is so severe as to be characterised as false imprisonment; (k) whether [sic – where] there is a reasonable means of egress, it does not matter that the plaintiff did not use it – there can be no false imprisonment; (l) there are four factors to be considered in determining whether any ability to leave was a reasonable one: (i) threat or danger to self; (ii) threat or danger to property; (iii) distance and time; and (iv) legality; (m) there may need to be a serious risk (possibly even life threatening) before a means of escape is considered to be unreasonable; (n) an avenue of egress may be reasonable even if it requires a plaintiff to commit a minor trespass; (o) a mere partial interference with freedom to travel by one route does not compel a person to remain." 128. Persons may not feel free to leave, or not be able to leave, in circumstances falling short of actual false imprisonment, as the court pointed out in State of South Australia v Lampard-Trevorrow [2010] SASC 56: "[282] We agree with counsel for the State that the fostering of Bruce Trevorrow does not readily fall under the heading of false imprisonment or wrongful imprisonment. In part this is attributable to the use of the word "imprisonment" to capture the factual essence of the cause of action. The factual essence of the cause of action is the placing of a "total restraint" on the plaintiff's movement. That restraint need bear no similarity to what one would normally describe as imprisonment. The law has moved on from any such limitation. [283] But the restraint must be total. For example, an available means of escape from a restraint might mean (depending on the circumstances) that the restraint is not total." 129. In such circumstances, any such restraint is not confinement or imprisonment, because the person is in reality free to leave: Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 at 387; 13 ALR 249 at 252; McFadzean at [54]–[89]; State of South Australia v Lampard-Trevorrow [2010] SASC 56. 130. The responsibility of the first and second defendant for the plaintiffs being detained is the next issue for determination. The relevant legal principles concerning the first defendant 131. The first defendant accepts (written submissions) that it has the onus of proving that the stop search and detention of justified, submitting that it has discharged this onus by establishing that the plaintiffs were detained pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which provides as follows: " 21 Power to search persons and seize and detain things without warrant (1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists: (a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained, (b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence, (c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence, (d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985 , a prohibited plant or a prohibited drug. (2) A police officer may seize and detain: (a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and (b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and (c) any dangerous article, and (d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985 , found as a result of a search under this section." 132. The police stopped, searched and detained the plaintiffs because, it is submitted, they suspected on reasonable grounds that the plaintiffs had in their possession or under their control something stolen or otherwise unlawfully obtained and/or something used or intended to be used in connection with a relevant offence, namely an indictable offence for the purposes of s 20. 133. What were those reasonable grounds? Leading Senior Constable Ansted said at T 172: "The man said, the manager said to me that there were two males in the shop. There they are down the road. They were walking away. He said they were in the shop to me. They were acting suspiciously. They were lifting the cabinets on the - sorry, the glass tops on the cabinets and he identified them to me walking down the road and they were walking away from the Tag shop, so he pointed out their identification to me, described them. I noticed them walking away from the Tag Heuer shop. He then said they were attempting to rob the store. He believed they were going to steal something. Further, he said to me that there was a hold-up the previous week in the shop." 134. At T 211, it was put to Leading Senior Constable Ansted that he did not believe what the manager said, to which Leading Senior Constable Ansted said "That was the information he told me." Leading Senior Constable Ansted considered that the information given to him by the manager constituted "reasonable grounds to stop those persons to find out exactly what they did at the store, not that they robbed the store, attempted to rob the store." He said he believed that he had reasonable grounds (T 217-218) on the basis of information he had from the manager. He agreed that he told the radio operator that "two male persons have been in the shop behaving suspiciously" and that they had been "in the shop looking around suspiciously" and that this was what the manager told him "a couple of times" (see cross-examination at T 217-218). 135. Constable Lentfer said at T 297: "…the manager had told Chad Ansted that there were two males previously in the store that had been acting suspicious and they were tapping - or being very hard on metal casings which enclosed watches and trying to pull panels of the glass apart with their hands. The manager thought that they were either going to try to rob from him or steal from him, and he indicated that the two men that were stopped by police and we were talking with were the males the manager had indicated too." 136. Constable Lentfer described how he carried out the search at T 298, where he said he told each of the plaintiffs: "I said that, "My name is Constable Greg Lentfer and I'm from The Rocks police. We've got information from the manager of the store at TAG Heuer that youse have been acting suspiciously, banging on the glass cabinets and trying to pull the panels apart, and he felt like youse were trying to steal from him or rob him. This is the reason why I want to search you, just to see if youse have anything that might have been stolen, unlawfully obtained in your possession, or any implements that may be used to commit an offence."" 137. Constable Lentfer said he was told by Leading Senior Constable Ansted that the plaintiffs were acting suspiciously by "being quite hard on the glass cabinets which contained watches and - And they were attempting to pull panels of the glass panels apart." (T 309) 138. It is submitted that the police were responding to a hold-up button having been activated in circumstances where the store manager provided this information and that the plaintiffs were stopped, although not arrested, pursuant to the provisions of s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). 139. The submissions of the first defendant are predicated upon there having been no arrest. At paragraph 126 of its submissions, the first defendant states that "all police officers said there was no arrest" (see the evidence of Leading Senior Constable Ansted at T 285 line 20; Constable Lentfer at T 314 line 17; Constable Coates at T 343 line 45; Sergeant Gibson at T 380 line 29 and Constable Axford at T 335 line 30, who refer to the plaintiffs being "stopped", not arrested). The plaintiffs were merely stopped, it is submitted, and that the plaintiffs claim of an arrest "must fail" because the preamble to the Law Enforcement (Powers and Responsibilities) Act 2002 states that it is an Act to permit the stopping and searching of persons in circumstances where an arrest has not occurred. 140. The plaintiffs submit that at common law it has been held that if a person is not free to go, then they have been arrested, referring to R v O'Donoghue (1988) 34 A Crim R 397: "An arrest occurs whenever it is made plain by what is said and done by the police officer that the suspect is no longer a free person. Words may be sufficient: Alderson v Booth [1969] 2 QB 216 at 220-221; but they are not always necessary - what must be done is what is reasonable in the circumstances: Tims v John Lewis & Co Ltd [1951] 2 KB 459 at 466; Wheatley v Lodge [1971] 1 WLR 29 at 36." 141. It is submitted that nothing in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) alters the common law definition of arrest. It is further submitted that these arrests were unlawful. The powers of the police to stop and search under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) 142. Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which includes s 21, refers to a variety of powers including not only arrest but stopping, detaining and searching without arrest. It is Part 8 which deals with the power of arrest, which is a different concept from the power of stop, search and detention set out in Part 4. 143. I am satisfied that the plaintiffs were not in fact arrested. They were stopped and searched under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) because of the very serious allegations made by the servants and agents of the second defendant, namely that they had been behaving suspiciously in the circumstances where these persons believed that an armed robbery was being attempted. 144. The question of what amounts to reasonable suspicion has been set out by the High Court in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266: "In the first place, the precise force of the word "suspect" needs to be noticed. A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence." 145. I am satisfied that the police did not arrest the plaintiffs, either at common law or pursuant to Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). They were called to the scene to investigate a potential robbery of a store and were exercising their rights to stop and search under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). That is not an arrest. The relevant legal principles concerning the second defendant 146. The first question is whether the restraint occurred as a result of the conduct of the second defendant's servants or agents. 147. In Ruddock v Taylor [2003] NSWCA 262 Spigelman CJ explained the correct interpretation of Myers Stores Limited v Soo [1991] 2 VR 597 as follows: "[29] In Myers Stores Ltd v Soo at 629, referred to with approval in Spautz at 26 and Cubillo at [250], McDonald J said: "To be liable for false imprisonment it must be the act of the defendant or his agent that imprisons the plaintiff or the defendant must be active in promoting and causing the imprisonment; Aitken v Bedwell (1827) Mood. & M 68; 173 ER 1084; Warner v Riddiford (1858) 4 CBNS 180; 140 ER 1052 and Halsbury , 4th ed, vol. 46, para 1326, para 1327. The act of imprisoning a person either personally or by an agent or by being active in promoting and causing the imprisonment thereby is the proximate cause of the imprisonment and is distinguished from the mere giving of information to a police officer or the mere signing of a charge sheet." [30] The terminology of "proximate cause" is sometimes used in other areas of the law, e.g. insurance, to mean the "dominant" or "effective" or "direct" cause. (See e.g. Halsbury's Laws of England (4th ed) Vol 25, para 175.) The applicable terminology with respect to the tort of false imprisonment is "direct cause". (The Australian texts are unanimous on the need for directness. See Balkin and Davis, Law of Torts (2nd ed) Butterworths, 1996, p 59; Fleming, The Law of Torts (9th ed) LBC Information Services, 1998, p 36; Trindade and Cane, The Law of Torts in Australia (3rd ed) OUP, 1999, p 50.) There must be "direct violation of the protection which the law throws round the person" ( Williams v Milotin (1957) 97 CLR 465 at 474). [31] In Aitken v Bedwell (1827) Mood & M 68; 173 ER 1084, which McDonald J applied in Myer Stores Ltd v Soo , a captain of a merchant ship in a foreign port had a seaman flogged and imprisoned by the port authorities. Lord Tenderden CJ's full charge to the jury was: "The plaintiff contends that what was done on shore was the act of the captain, the defendant says it was the act of the Russian authorities only. The question for you is, whether the punishment inflicted on shore was done by the constituted authorities, on the mere complaint of the defendant, or whether the defendant was the actor and immediate promoter of it? If you think the defendant merely preferred his complaint, and left the constituted authorities to act as they thought fit, the defendant is entitled to your verdict; if, on the other hand, you think he did more, and was active in promoting and causing the punishment to be inflated, then he is answerable in this form of action." [emphasis added] [32] The italicised words indicate that the Lord Chief Justice's concluding reference to "promoting and causing" should be understood in terms of whether the trespass by way of battery and imprisonment was, as a matter of substance, the act of the captain. In Myers Stores v Soo , O'Bryan J at 616, referred to the formulation "actor and immediate promoter" from Aitken v Bedwell and posed the issue in terms of whether "an act of [the instigator] caused the unlawful imprisonment". In the event his Honour concluded that on the facts of that case the instigator participated with certain police officers in "a common design to detain" the plaintiff. [33] It is not the case that an act indicating a wish or expectation that another should be imprisoned establishes liability for the tort. There will be such liability if the person who ultimately confines the plaintiff would not have acted at all but for the urging on the part of another. (See e.g. Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 at 595-596; Pike v Waldrum and Peninsular & Oriental Steam Navigation Co [1952] 1 Lloyd's Rep 431 at 454-455.) It is otherwise if the ultimate actor exercises an independent discretion. (See e.g. Davidson v Chief Constable of North Wales [1994] 2 All ER 59.) See generally Clerk & Lindsell on Torts (17th ed) Sweet & Maxwell, 1995 para [12-23] to para [12-32]. On the distinction between direct and consequential injury see Hutchins v Maughan [1947] VLR 131 at 133; Platt v Nutt (1988) 12 NSWLR 231 at 244-246. [34] The element of directness - the sufficiency of the nexus between the Defendant's act and the imprisonment - is satisfied, in the present case. The detention was, as her Honour found, "an inevitable consequence". The issue is whether the element of intention has been satisfied. [35] In this line of case law, the person who instigated the sequence of events which culminates in an imprisonment, has generally actively sought that result. In that way, the person manifested an intention that there be an imprisonment. In the present case, her Honour's finding that detention was the "inevitable consequence" of the Ministerial decision - or at least of its "communication" to the relevant officer - does not encompass a finding that the Minister intended the particular result of imprisonment. [36] The tort of trespass requires a wilful or negligent act. ( Stanley v Powell [1891] 1 QB 86; Williams v Milotin at 474; McHale v Watson (1964) 111 CLR 384 at 388). The relevant intention for false imprisonment is the intention to detain. ( Cowell v Corrective Services Commission at 743E). [37] There can be no doubt that each Minister had an intention that the Respondent be removed from Australia. That was the very point of the decision to cancel the visa and whether or not that should occur was the substance of the departmental paper before each Minister. Detention was an inevitable step brought about by the self-executing operation of the statute, of which the Ministers must have been aware. [38] American case law has developed a "doctrine of substantial certainty" to the effect that knowledge of a high level of certainty is sufficient to amount to intent for purposes of the tort of trespass. (See Trindade and Cane p 30 – p 36; Francis A Trindade, "The Modern Tort of False Imprisonment" in Nicholas Mullaney (ed), Torts in the Nineties Law Book Co, 1997 p 235 – p 236; William Prosser, Law of Torts (4th ed) West Publishing Co, 1971 p 31 – p 32). In the present case the questions of degree that may arise in applying a doctrine of substantial certainty are not present. Here detention was certain. [39] The position is similar to the well known case where a person threw a lighted squib into a market, where it was tossed from one stall to another in an automatic reflex action by two stallholders, Messrs Willis and Ryal. The leading judgment said: "That the natural and probable consequences of the act done by the defendant was injury to somebody and therefore the act was illegal at common law ... Being therefore unlawful, the defendant was liable to answer for the consequences, be the injury mediate or immediate ... I do not think to maintain trespass, it is necessary that the defendant should personally touch the plaintiff; if he does it by a means it is sufficient ... He is the person who, in the present case, gave the mischievous faculty to the squib. That mischievous faculty remained in it till the explosion. No new power of doing mischief was communicated to it by Willis or Ryal". ( Scott v Shepherd (1773) 2 Wm BI 892; 96 ER 525.)" 148. In Ruddock v Taylor [2005] HCA 48, McHugh J at [152] – [153], referred to "police informant cases" setting out the circumstances in which a person who gives information to police that leads to a wrongful arrest may be liable to the plaintiff for false imprisonment. The liability of the informant who brings about the arrest by doing more than simply provide information is clearly demonstrated in this case: "[152] Similar conclusions are also demonstrated by the long line of "police informant" cases. These concern the circumstances in which a person, who gives information to police that leads to a wrongful arrest, will be liable to the person falsely imprisoned for false imprisonment. The liability of the informant remains open although the police officers concerned may be immune from liability under statutory provisions authorising them to arrest persons on the basis of reasonable suspicion. [153] A clear example of this differentiation is Davidson v Chief Constable of North Wales . The plaintiff in that case was arrested by police on suspicion of theft after police received information from a store "detective". The plaintiff had not committed any offence. She subsequently brought an action for false imprisonment against the police and the employers of the store detective. The English Court of Appeal held that the police involved in the arrest and imprisonment were not liable. They were protected by s 24(6) of the Police and Criminal Evidence Act 1984 (UK). However, the Court considered separately the liability of the store detective. The outcome ultimately turned on factual questions concerning causation. However, the Court of Appeal was not in doubt that it was necessary to consider the distinct liability of those who initiated the steps leading to imprisonment and those who effected it. This approach is obviously correct in principle. The submission of the appellants, that there is a general principle of law that whoever causes imprisonment cannot be liable if the conduct of the detaining officer is authorised by statute, must be rejected as inconsistent with authority and legal principle." 149. By pressing the emergency hold-up button, identifying the plaintiffs as the reason for this and persisting in those allegations, the second defendant's servants or agents (see Martin v Watson [1996] AC 74) did not merely provide information but are the sole motivating force putting the prosecution in train. What is more, as was the case in Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299; Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123, the second defendant's servants or agents appear to have adhered to what was claimed, judging by the police witnesses' accounts of their conversations with these persons. 150. The second defendant submits that the police were acting on their own initiative. Examination of the timeline shows that the police could not even have had the time to look at the whole of the CCTV footage from one camera, let alone all three. The police realized almost immediately that they had to work out what had really happened, and told the radio operator this. Nonetheless, as was the case in Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson, supra; Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd, supra, the second defendant's servants or agents appear to have persisted in claiming that the plaintiffs had been tapping on and trying to open the glass cabinets in their store. 151. The second defendant is vicariously liable for the conduct of its employees even for unauthorised acts, if they are sufficiently connected with authorised acts so as to be regarded as modes (although improper modes) of doing them: New South Wales v Lepore (2003) 212 CLR 511 at [42]. 152. Whether an employer is vicariously liable is a question of fact in the circumstances of each case: Bugge v Brown (1919) 26 CLR 10. In broad terms, what the courts interpreting Lepore have done is to compare the wrongful conduct with the type of conduct the employee was engaged to perform and if there is a "sufficient connection" (Gleeson CJ at [40], [42], [52], [54], [67] and [74]), "sufficiently close connection" (Kirby J at [315] - [316], [319] - [320]) or a "close connection" (Gaudron J at [131] - [132], Gummow and Hayne JJ at [213]) the court may conclude the wrongful act was done in the course of employment, although in an "improper mode", to use Gleeson CJ's description at [2]. 153. The decision in Lepore was referred to by Basten JA in Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354; [2007] NSWCA 106 at [23]. In Lepore at [50], Gleeson CJ considered the liability of an employer for an employee's "act of personal retribution" and "spontaneous act of retributive justice". His Honour noted (at [54]), that where acts of physical violence are concerned, the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal, independent act of the perpetrator or whether it is within the scope of employment. 154. The pressing of the hold-up button, which is provided by the second defendant for use by its staff, clearly falls within the definition of conduct in ostensible pursuit of the employer's business activities. 155. Accordingly I am satisfied that the second defendant's servants or agents promoted and caused the plaintiffs being stopped, detained and searched by the police, and that their continued insistence that the plaintiffs had misconducted themselves in the store after the police arrived unnecessarily prolonged the plaintiffs' detention, in that the police were obliged to investigate the store employees' mischievous claims. I say "mischievous" because I am satisfied from the evidence that the button was pressed well after the plaintiffs left the store, in circumstances where there was no threat, and where it is clear from the CCTV footage that nothing untoward had occurred. The relevant facts 156. When the police came to the Tag Heuer store, they did not necessarily suspect a hold-up. Leading Senior Constable Ansted said that 99% of the time when he is called to answer a hold-up alarm it is a non-event (T 222). Although the store manager told him he thought there had been an attempt at a planned robbery, he was sceptical; at T 205 he said he was not prepared to say that the plaintiffs had been pointed out as the potential robbers. He did not believe that the two plaintiffs were about to rob or attempt to rob or steal from the shop (T 211). Nor did he believe, from what the manager had told him, as opposed to of his own belief, that the two men were about to rob or had attempted to rob the shop (T 212). 157. Constable Lentfer gave a similar account: "Q. So you suspected them of having stolen goods? A. Well, possibly, yes, from the information I obtained from the Manager. Q. So you searched them? A. I wouldn't have stopped them otherwise. Q. They were pointed out to you as potential robbers, is that right? A. No, I wouldn't say that, no." 158. In addition, the emergency operator records the police arriving at 14:51:00 and saying "There has been an attempt robbery at the store", qualified with "We are just going to try and work out what actually happened here at the moment um and we will be speaking to two POIs who have been stopped by security." 159. No security staff employed by the second defendant were called, and there was no cross-examination about the plaintiffs being apprehended by security men, so this reference is unexplained. 160. The plaintiffs were stopped and detained for between 8 and 9 minutes, while Leading Senior Constable Ansted went to the store to obtain further information. During this time it was clear to him that there was no armed robbery and there had been no watches stolen. 161. Leading Senior Constable Ansted considered (T 211) that he had "reasonable grounds to stop those persons to find out exactly what they did at the store, not that they robbed the store, attempted to rob the store". He did not believe, either of his own account or from what the manager told him, that the two men were about to rob or attempt to steal from the shop. 162. However, this does not entitle a police officer to stop and search unless there were reasonable grounds. There was no evidence the plaintiffs had any item in their possession which was stolen as there was nothing taken, and no evidence that the plaintiffs had used any items in the store in any attempt to open any of the cabinets. 163. Furthermore, there were reasons not to stop and search the second plaintiff other than in accordance with the regulations concerning persons with disabilities. Regulations 24 and 27 – Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) 164. Regulation 24 Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) provides: " 24 Vulnerable persons (1) A reference in this Division to a vulnerable person is a reference to a person who falls within one or more of the following categories: (a) children, (b) persons who have impaired intellectual functioning, (c) persons who have impaired physical functioning, (d) persons who are Aboriginal persons or Torres Strait Islanders, (e) persons who are of non-English speaking background, but does not include a person whom the custody manager reasonably believes is not a person falling within any of those categories. Note: If a person falls within more than one of the above categories, each provision of this Division relating to any category within which the person falls applies in relation to the person. (2) Pursuant to section 112 (1) of the Act, the application of Part 9 of the Act to vulnerable persons is modified by this Division." 165. Regulation 27 Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) provides: " 27 Support person may be present during investigative procedure (1) A detained person who is a vulnerable person is entitled to have a support person present during any investigative procedure in which the detained person is to participate. (2) However, a detained person who is a vulnerable person solely as a result of being a person of non-English speaking background is entitled to have a support person present only if an interpreter is not required to be arranged under section 128 (1) of the Act solely because of section 128 (3) (a) of the Act. (3) Before any such investigative procedure starts, the custody manager for the detained person must inform the person that the person is entitled to the presence of a support person during the investigative procedure. (4) If the detained person wishes to have a support person present, the custody manager must, as soon as practicable: (a) give the detained person reasonable facilities to enable the person to arrange for a support person to be present, and (b) allow the detained person to do so in circumstances in which, so far as practicable, the communication will not be overheard. (5) The custody manager must defer for a reasonable period any such investigative procedure until a support person is present unless the detained person has expressly waived his or her right to have a support person present. (6) An investigative procedure is not required to be deferred under subclause (5) for more than 2 hours to allow a support person to arrive at the place of detention. (7) A custody manager is not required to comply with subclauses (3)-(5) if the custody manager believes on reasonable grounds that: (a) doing so is likely to result in an accomplice of the detained person avoiding arrest, or (b) doing so is likely to result in the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or (c) doing so is likely to result in hindering the recovery of any person or property concerned in the offence under investigation, or (d) doing so is likely to result in bodily injury being caused to any other person, or (e) the safety of other persons requires that the investigative procedure be carried out as a matter of urgency." Conclusions concerning liability for first and second defendants for false imprisonment 166. The circumstances under which a person who gives information to the police that leads to wrongful detention will be liable to the person wrongfully or falsely detained have been explained by the Court of Appeal in Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262 and more recently in Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 at [104] per Ipp JA. What is necessary is for the person to be active in promoting and causing the imprisonment as opposed to the mere giving of information to a police officer. 167. In Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123, the store employee gave evidence which I, as the trial judge, did not accept and this finding was upheld on appeal. In the present case, the store employees have elected not to give any evidence. 168. The presence of a "mischievous quality" (see Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 at [113]) is not something that is limited to clear evidence of dishonesty or invention of the kind that occurred in Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd. If that were the case, liability could be avoided merely by not calling evidence of the intention, dishonest or otherwise. 169. The deliberate giving of wrong information should be treated differently, whether or not there is evidence of it or not from the store employees in question. On any analysis, there is no conduct of the plaintiffs on the CCTV tape which could possibly lead to any suspicion that they were tapping on the glass or attempting to open the glass cabinet, and in particular no evidence that they were using any implement to do so. As was the case in Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd, Mr Lassanah was not cross-examined about his conduct in the store. 170. In conclusion, I am satisfied that the second defendant or its servants or agents made false accusations about the plaintiffs to the police as follows: (a) The hold-up button was wrongly activated, after the plaintiffs had left the store premises and on any reasonable analysis, there was no question of there being any reason for concern. (b) The manager of the store told Leading Senior Constable Ansted that the plaintiffs were acting suspiciously in the shop, tapping on the glass, trying to lift the glass of the display cabinets and attempting to rob or steal from these cabinets when it is clear from the CCTV that no such conduct occurred (T 217-218). (c) These statements were repeated to Sergeant Gibson (T 262) and in particular Leading Senior Constable Ansted said that Sergeant Gibson was told that the plaintiffs had been "lifting up the lids" (T 265). The CCTV footage confirms that no such conduct occurred and Mr Lassanah was not cross-examined. (d) Mr Lassanah was not cross-examined on his evidence that he was treated well in the shop and was not cross-examined on his evidence that as he left the manager said "Goodbye nice seeing you" (T 40). (e) I accept the submissions of the plaintiffs that if the manager or other employees of the second defendant had really suspected the plaintiffs, they should have kept the door closed and rung for the police either when the plaintiffs were in the premises or shortly thereafter, and they should not be encouraging other persons to enter the store. No explanation has been provided as to why the alarm was activated after the plaintiffs left the shop. The submissions of the second defendant that the CCTV footage of one of the staff members bending over means that the alarm must have been activated in the shop while the plaintiffs were in the shop is incorrect as the times for the calling of the police demonstrate. The speed with which the police arrived after the alarm and the times on the radio call records for the police confirm that the alarm was activated after the plaintiffs had left the shop. It was simply coincidence that the plaintiffs were walking down the street from the Rolex shop when the police arrived. (f) Nor do I accept the assertions that the second defendant's premises had been robbed the week beforehand. No material was put before the court to demonstrate that this had in fact occurred. 171. The facts of this case are very unusual. Unlike Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd, there is CCTV footage of the whole of the event, and there is objective evidence that no criminal offence of any kind took place. Whatever the reason for pressing the hold-up button (and I decline to speculate as to what that may be), the claim that the plaintiffs were lifting up or trying to open the cabinets amounts to the giving of information that is so far removed form what occurred that it must have been false, in circumstances where it was virtually impossible for the police officers to do anything to exercise independent discretion or judgment, other than to detain the plaintiffs. 172. I also find it would have been apparent to the second defendant's staff, whether or not they knew of Mr Oddie's intellectual disability, that it was not possible to conduct a conversation with him. The essence of selling goods in a shop is oral communication with a customer. A customer who cannot speak, or with whom conversation is very limited, is clearly someone with a disability. Whether or not Mr Lassanah told the staff in the shop that Mr Oddie was intellectually disabled, his inability to speak and the unmistakable affect of his demeanour would make it very hard to miss that he is intellectually disabled. Neither he nor Mr Lassanah could have been mistaken for potential store robbers. 173. I am satisfied that the second defendant, by the conduct of its servants or agents, caused and procured the wrongful detention of the plaintiffs. 174. Accordingly I am satisfied that each of the first and second defendants are liable for the false imprisonment of each of the plaintiffs. I have considered issues of damages and the cross-claim separately. I shall next consider the claim for defamation. The claim for defamation 175. The first issue for determination is publication. The question of proof of publication of a slander has been discussed in a number of decisions. In Sinclair v Bjelke-Petersen [1984] 1 Qd R 484 at 495-496, Kelly J noted that it was necessary for the plaintiff to establish the substance of the words complained of in the statement of claim were used, citing Lamb v West (1894) 15 NSWLR 120 at 126 per Darley CJ. 176. Even if words said to be spoken by the defendant are different to those pleaded, if they are capable of carrying some or all of the pleaded imputations, this may be sufficient to prove that the words spoken were substantially as alleged in that the same defamatory sting was conveyed: Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1; (1987) 86 FLR 343. 177. A crucial question, where there has been publication concerning such a limited audience, is whether or not the words spoken were heard by a third party. In the present case, the words that was spoken about each of the plaintiffs was heard by either of them, as well as by other police officers, and also by passers-by. 178. The first thing to determine is what was said and the second thing to determine is whether it was heard by a third person. What was said 179. I have earlier set out the initial description given by Mr Lassanah as to what was said by the police officers (T 42 line 3). After Mr Oddie was interposed, I asked Mr Lassanah to repeat again what he had said, and I had difficulty understanding, given his strong accent, a number of things he had said, including in particular whether the police said to him "intending to steal" or "attempting to steal" (T 52). 180. At T 52, Mr Lassanah gave the following description of what was said: "Police said - the manager of the store said that..(not transcribable)..guy was in his - in the shop, intending to steal watches, and he said, "We are stopping you guys because the guy was in the shop, intending to steal." "Don't go in the shop. You guys were intending to steal." And they also said that we were holding on the drawer and glasses in an attempt to steal." 181. In cross-examination, it was apparent that this discussion was not a single discussion followed by silence for the rest of the time that the plaintiffs were being detained by the police officers. Mr Lassanah agreed with Mr Neil QC that the police initially said they were coming because of something that was said to them by the store manager, or somebody in the store, and that he denied doing anything wrong, handed over his driver's licence, was searched and that some time after this he and Mr Oddie were released (T 70). A more complete version appears at T 116-118: "Q. Did Mr Ansted say to you that the manager had said that you and Mr Oddie had been trying to lift the glass on the top of the display cabinet? A. Yes. Q. Did Mr Anstead say to you that the manager had said to you - said to him that it was his view - the manager's view - that you and Mr Oddie were about to steal something, or that the shop was about to be held up? A. No, no. Q. Did Mr Anstead say to you, "The manager has alleged that some of the cabinets were attempted to be opened in the store"? A. No. No. Q. Let me ask you this. I'm coming to the matter complained of, your Honour. Did Mr Anstead say to you, "The manager of the Tag shop said you're intending to steal from the shop"? A. He did not use the term, "manager", all the time we're there. "Oh, you guys were intending to steal - acting like thief." Q. Do you say that Mr Anstead did not say to you anything using the nomination of the position as manager? HER HONOUR: No, he said those phrases, Mr Neil WITNESS: He didn't say "the manager", yeah. NEIL Q. Did Mr Anstead say to you that the manager of the Tag shop had said things to him about you and Mr Oddie? A. It was once, and the rest of the time he said, "You guys were acting like thief. Doing this, doing that." He did not use the "manager" term always, just once. Once he used the "manager" term. Q. I think you just said he did not say to you - is this what you're saying? HER HONOUR: No, Mr Neil. He said he used the phrase "manager" once. The rest of the time, this witness said, he said, "You guys are acting like thieves." That's what he said, Mr Neil. NEIL Q. Did he say to you these words - did Mr Anstead say these words to you: "The manager of the Tag shop said you were intending to steal from the shop"? A. Yes, he said one-- Q. Did Mr Anstead say these words to you: "We are stopping you because you guys were in the Tag shop, intending to steal"? A. Yes, yes. Q. Did he say following that, anything further about, "You were intending to steal"? A. Yes. He said, "Don't go into the shop. You guys were intending to steal. Don't go in the shop." Q. Did he say to you the manager had told him that you and Mr Oddie had been intending to steal? A. He just said, "You guys were intending to steal," as..(not transcribable).. "You guys were intending to steal, so don't go in the shop. You guys were intending to steal." Q. Did he say to you he'd got that information from the manager? A. No, he didn't. Like I say, he used the "manager" just once, when he said, "The manager says..(not transcribable).." then the rest of the thing, "You guys were intending to do this. You guys were intending to do that. Don't go in the shop. Go home."" 182. It is clear from the evidence of all of the witnesses that Mr Lassanah was told to go home (without his driver's licence which was retained by the police) only after the enquiries had finished. In other words, the accusations about being a thief and intending to steal from the Tag Heuer boutique shop were not made once, but several times. 183. The first point that the first defendant make in written submissions is that the "very first version in evidence" (first defendant's written submissions paragraph 3) should be accepted. The first plaintiff has used the word "employee" three times, twice being what he said the police told him the employee said to him and once about himself talking to the employee. Similarly, the passage at T 52 line 20 referred in the first line to the manager. However, the second version, which was given after Mr Oddie left the court (it having been apparent that he was very frightened), does not refer to the manager as being the source of the allegations. In addition, when the first plaintiff was taken through evidence with some care by Mr Neil QC in cross-examination, he gave the third and more comprehensive version set out above. The first defendant does not refer to the version of the matter complained of given in cross-examination in its written submissions. 184. The first defendant's submission is that the matter complained of, in the version given by Mr Lassanah, is so different in substance from what was said that the publication pleaded was not made, and the imputations cannot therefore be conveyed. 185. I do not accept this submission. It is clear from the second and third account given by Mr Lassanah of his conversation with the police officers that the police officers were stating that he was a thief and that he intended to steal from the Tag Heuer shop. This is particularly the case in relation to the conversation in the course of which he was told to "go home". Any initial reference to the manager or some other unidentified store employee as being the source of the allegations was not, I find, made other than in the opening words of the police officers when they first arrived on the scene. 186. However, even if it were the case that the police were merely repeating what the store manager said and were using either the phrase "employees" or "manager", the substance of the allegation was that the plaintiffs were thieves and were attempting to steal from the Tag Heuer shop. The fact that words spoken by the police officers differ in some respect to the words pleaded is not sufficient to deny publication, for the reasons explained in Lamb v West, supra and Smith v John Fairfax & Sons Ltd, supra. 187. It is asserted that the first plaintiff's version of events using the word "manager" is consistent with the answer to interrogatory 8. The fact that the police officers said both employees had accused him of intending to steal from the Tag Heuer shop does not mean that the police officers did not directly accuse the plaintiffs of stealing. The answer to interrogatory 8 needs to be seen in its context. Nor is the alleged error of counsel for the plaintiffs in cross-examining Leading Senior Constable Ansted at T 221-222 (written submissions paragraph 10-11) of any significance. The actual words of Mr Lassanah should be preferred to a summary of them given by his counsel in cross-examination of Leading Senior Constable Ansted. 188. Fundamentally, the question of whether or not the police were merely repeating words that the manager had said concerning the manager's suspicions or directly accusing the plaintiffs is a distinction without a difference. Even in the version given by the police officers, it is clear that the police officers conducted the detention and search of the plaintiffs the way they did. For example, Constable Lentfer gave as his reason for wanting to search the plaintiffs as being "just to see if youse [sic] have anything that might have been stolen, unlawfully obtained in your possession, or any implements that may be used to commit an offence". 189. I have rejected the attack on Mr Lassanah's credibility made in paragraph 19 of the first defendant's written submissions. The police made no records of any kind during their visit to the premises, including a notation of what allegations, if any, were in fact made by store employees, and the store employees who spoke to the police were not called by either defendant to give evidence. 190. The next issue is, having found that the words were spoken, they can be proved to have been spoken on an occasion amounting to publication. Publication 191. The first defendant in written submissions complains there is no evidence from any bystander who heard the publication and that the court is not allowed to speculate that the publication was heard by any third person. 192. First of all, the words spoken were in the hearing of each of the two plaintiffs (Zarth v Williamson [2006] NSWCA 246) and to the other police officers (Trantum v McDowell [2007] NSWCA 138). Publication to other potential tortfeasor, such as the other police officers, is itself a publication (Trantum v McDowell at [50] per Tobias JA). Secondly, Mr Lassanah said the words were spoken by the police in loud voices (T 45) and that these were within the hearing of passers-by although standing nearby. It is clear from the video and also the number count of the passers-by seen in the video tendered on behalf of the plaintiffs that many persons passing by would have heard what was said. 193. The first defendant in written submissions assert that the police spoke in a normal voice (Constable Axford at T 333; Constable Coates at T 347, Leading Senior Constable Ansted at T 183, 223-224; Constable Lentfer at T 301-305; and Sergeant Gibson at T 372). Constable Axford said that the words were not heard by any passers-by (Constable Axford at T 333). It is submitted that the plaintiffs were in an alcove on the footpath and therefore out of the pedestrian flow. It is therefore highly unlikely that any passer-by would have heard or absorbed the matter complained of. 194. These were police officers responding to an armed robbery alert that was urgent. The likelihood is that their tone of voice and manner was appropriate for a police officer responding to an urgent call. 195. Leading Senior Constable Ansted did say that it would be wrong to make accusations in an extremely loud voice so that everyone in the vicinity can hear as the accusations "should only be heard to the accused person you are speaking to" and that this was part of his training. Given the factual circumstances in which the police were called, I accept Mr Lassanah's evidence that this did not occur in this case. 196. Everything points to the police having been summoned by an urgent call and responding as promptly as possible. The likelihood that they would keep their voices down is low. This was a very busy city street, shortly after or at the end of the lunch hour peak period of time. If there had really been an armed robbery going on, it would have been a matter of vital importance for the police to make sure that members of the public kept away and speaking so that only the plaintiffs could hear them would not have been part of this scenario. Identification 197. A further allegation is that because neither of the plaintiffs is named in the matter complained of, each of the plaintiffs has to prove that the words complained of were published of and concerning each of the plaintiffs in question: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 89 per Jordan CJ. 198. This claim was abandoned in oral submissions. It is an incorrect submission: Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192. Identification was not challenged in the pleadings, or the subject of a request for particulars; if it had been, the usual request for particulars of identification could have been sought and obtained. Whether the imputations were conveyed 199. The first defendant submits that the context and circumstances make it clear that this was a situation of police investigation, not one of arrest and charge. Accordingly, the imputations would be those of suspicion only and not guilt: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; (1982) 42 ALR 487; (1982) 56 ALJR 808; [1982] HCA 50. 200. Part of the problem with the conduct of this litigation has been that the first defendant elected to deny that the words in the matter complained of were spoken at all or that there was any intention to convey the imputations. This means that there is no alternative version of the matter complained of for me to determine whether or not it was clear, from the context of what was said, that the plaintiffs were released and that the ordinary reasonable person seeing these events, knowing the presumption of innocence, would understand that even if they had been arrested that did not mean that they were guilty. 201. The ordinary reasonable person in the street, seeing a police officer saying to a member of the public that they were intending to steal, and that they should not return to a shop, is in a very different position from a person reading a newspaper article about the circumstances leading to a person's arrest where the information which would give rise to the suspicion would be available. The dramatic circumstances of the police stopping two persons outside a shop and searching them and making these statements would be enough to the person who heard these words spoken to think that the plaintiffs had been caught red-handed. The language is not the language of suspicion but of guilt. Accordingly, the imputations that I find that have been conveyed are that each of the plaintiffs was an attempted thief and that each of the plaintiffs had intended to steal from the Tag Heuer boutique shop. 202. However, the imputations were of being an attempted thief, and of intending to steal, not of actual stealing. Accordingly the imputations I find to be conveyed for each of the plaintiffs is: (a) The plaintiff is an attempted thief. (b) The plaintiff intended to steal from the Tag Heuer boutique shop. 203. The first defendant does not submit that such imputations could be anything other than defamatory. 204. Having determined issues of publication and imputations, I now consider the defences to the defamatory publications. The first of these is qualified privilege. Qualified privilege 205. Communications are protected at common law where a person has an interest or duty of a legal, social or moral nature to make a statement on an occasion and the recipient has a corresponding interest or duty to receive it: Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; (2004) 204 ALR 193; (2004) 78 ALJR 346; (2004) Aust Torts Reports 81-727; [2004] HCA 5 at [9]-[10] per Gleeson CJ, Hayne and Heydon JJ. 206. What has been called the "guiding principle" of reciprocal duty and interest is a broad and general one, based on public utility: Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 657 per Evatt J. 207. It is because of the width of the principles concerning the principles of reciprocal duty and interest, which are broad and general, that there must be a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication: Bashford v Information Australia (Newsletters) Pty Ltd, supra, at [10]. 208. I have set out the circumstances of the detention of each of the plaintiffs in the section concerning false imprisonment. I shall not repeat them again. 209. The question of duty and interest was considered at length by Ipp and Campbell JJA in Bennette v Cohen [2009] NSWCA 60. At [25](d) Ipp JA warned that the close scrutiny required meant that the following six factors needed to be given great weight when carrying out the necessary scrutiny: (i) As a matter of public policy, it must be in the general interest of the whole community that the type of material in question be published, notwithstanding that it is defamatory of a third party; (ii) The occasion must not be used for some purpose or motive foreign to the interest that protects the making of the statement. Further, there must be a significant connection between the defamatory material and the privileged occasion; (iii) The interest that gives rise to qualified privilege must be real and direct; (iv) Ordinarily, a volunteered statement is privileged only where there is a pressing need to protect the interests of the defendant or a third party, or where the defendant has a duty to make the statement; (v) If a publication is made to a large audience, a claim of qualified privilege at common law will fail unless the members of the audience all have an interest in knowing the truth, and; (vi) The interest should not give officious and interfering persons a wide licence to defame. Relevance to the occasion of qualified privilege 210. The parties agree (Bashford v Information Australia (Newsletters) Pty Ltd at [54]) that the court examines all the circumstances of a case, including the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of and reason for the publication. After considering these matters, the court makes a judgment as to whether the publisher had a duty or interest that justify the making of the publication and whether the recipients, or some of them, had a duty to receive or an interest in receiving it. 211. The first defendant submits (written submissions, paragraph 91), that the touchstone is public policy, which determines issues of duty and interest. The concept of public policy or common convenience and welfare of society means "that the interests of society in general require that a communication made under the particular circumstances to the particular person should be protected": Howe & McColough v Lees (1910) 11 CLR 361 at 368-369. 212. The first defendant also draws my attention to the statement of the High Court in Mann v O'Neill (1997) 191 CLR 204; (1997) 145 ALR 682; (1997) 71 ALJR 903; [1997] 12 Leg Rep 21; (1997) Aust Torts Reports 81-436; [1997] HCA 28 and to statements to the effect that authorities and organisations charged with the investigation and prosecution of crime such as the police usually enjoy the protection of common law qualified privilege. 213. When considering whether or not a defence of qualified privilege at common law actually attaches, I must consider the whole of the publication. This was not a publication where the police officers told the plaintiffs that they were investigating allegations, and having done so, told the plaintiffs what they were, invited a response, or otherwise processed the allegations which were made by the store employees. Mr Lassanah's evidence was that for the whole of the time that the police were there, right up until the time that he was told to "go home", he and Mr Oddie were told the words that are set out in his evidence in chief and cross-examination in more detail above. 214. The parties did not address me as to how I should deal with a slander where the evidence of the plaintiffs was that words were spoken not once but several times. Nevertheless, it is clear from the evidence of Mr Lassanah that at all relevant times, the police made the same statements and, towards the end of the interview, if not at the beginning, were adopting what was said by the store manager. In circumstances in which Mr Lassanah was told to "go home" without his driver's licence being returned, was not conduct which was consistent with having satisfactorily concluded an investigation; the ordinary reasonable bystander hearing these words and seeing the context in which they were spoken (the context being relevant to the defence, even where that context includes conduct that is not part of the matter complained of) would be left with no doubt that the police had investigated the matter and had formed certain views. 215. The bases upon which the plaintiffs had attacked the defence of qualified privilege at common law are two-fold. Firstly, it is asserted that there was no reciprocity, in that members of the public had no interest in receiving the false accusations of criminality in circumstances where the police used a loud voice (written submissions, 16 September 2010). Secondly, it is submitted that as the police had no intention to convey the imputations, the defence must fail. 216. In Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9, McClellan CJ at CL stated at [80]: "80 However, the defence will be made good if it can be shown that the defamatory matter, which gave rise to the imputation, was published on an occasion of qualified privilege and the matter was relevant to the privileged occasion. I do not understand Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; (1997-1998) 193 CLR 519, (particularly at [8]) to say anything to the contrary. Although the imputation must be defended, the occasion which may attract the privilege is when the matter which gives rise to the imputation is published." 217. The duty of the bank to communicate (Aktas v Westpac Banking Corporation Ltd at [86]) was a duty to communicate the statement "Refer to Drawer". However, McClellan CJ at CL explained the difference between a statement "Refer to Drawer" and a statement "drawer is a thief" at [75] as follows: "75 The issue can be readily understood by a variant of the present case. If a bank returned a cheque to the payee having correctly determined that there were insufficient funds with two endorsements, one being "Refer to Drawer" and the other, the "drawer is a thief", the imputations arising from the publication of the first statement, made necessary by the bank's decision to refuse payment, will be an occasion of qualified privilege. The publication of the second will not, there being no interest or duty on the part of the bank to publish that the drawer is a thief, with whatever defamatory imputation may be found to arise from the publication of that statement. An occasion on which matter which gives rise to defamatory imputations is published may not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement: Roberts v Bass (at [62])." 218. While it was relevant to the privileged occasion for the police to repeat, at the commencement of the interview, at least some of the allegations made by the store manager, when it became apparent that there was no substance in the complaint and that Mr Lassanah was angry and upset and wanting to speak to the store manager, as well as considering legal avenues, it was not appropriate for the police officers to repeat the matter complained of and to state that the plaintiffs had in fact been intending to do what they were accused of doing, or to order them not to return to the shop, or to tell them to "go home". 219. The occasion of qualified privilege was lost once the police went from repeating the allegations of the store manager to making allegations, particularly in circumstances where it was, by that time, clear that the store manager's allegations were at best misconceived or at worst mischievous or false. 220. Accordingly, the publication was made on an occasion which is not protected by a defence of qualified privilege at common law. 221. I should briefly note some discussions of reciprocity where allegations of criminality are made. Reciprocity where allegations of criminality are made 222. Gatley on Libel and Slander (11th ed, 2008) notes at [17.11]: "Charges of crime… will only be privileged if made with the honest desire of promoting investigation into the alleged crime, or prosecuting the alleged offender or, it is submitted, recovering property or proper compensation." 223. In Aktas v Westpac Banking Corporation Ltd, supra, McClellan CJ at CL referred at [39] to Bashford noting that two questions arise, namely, whether the occasion of publication was one where the necessary reciprocality existed and whether the matter defaming the plaintiff was sufficiently relevant to the privileged occasion to attract the defence. While a communication made to ensure the detection of crime may be protected (Aktas at [43]) it is not the case that all publications to the police are made on an occasion of qualified privilege: Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299; Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123 at 199. 224. The submissions of the plaintiffs that there is no reciprocity of interest between members of the public and the police is misconceived and I reject it. The police are not obliged to lower their voices while apprehending persons in case the allegations of criminality are unfounded in the course of attending to an urgent call for assistance of the kind that has occurred here. 225. I have taken into account, when considering the issue of qualified privilege at common law, these issues of reciprocity. As to intention to convey, I agree with the submission of the first defendant that if a defendant does not intend to convey an imputation the defence is still available in some circumstances: see Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387-388. What may be more relevant in the present circumstances is whether or not the police officers had belief in the truth of what was said. The persisting with allegations throughout the interview, in circumstances where these allegations are put as coming from the police as well, is what causes the occasion of qualified privilege to be lost. 226. Before considering the issue of malice, I shall consider the issue of the statutory defence of qualified privilege. The statutory defence of qualified privilege 227. Section 30 Defamation Act 2005 (NSW) is as follows: " 30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the "recipient") if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward." 228. The first defendant submits (written submissions paragraph 68) that the three limbs of s 30(1) are satisfied as the plaintiffs had an obvious interest in having information as to why the police were speaking to them and detaining them. 229. The first defendant further submits that ss 30(3)(a), (b), (d), (e) and (g) are of particular relevance in circumstances where in the course of a police operation in the streets of Sydney the police were urgently responding to a hold-up alarm and that these were police operations "at the coalface" (written submissions paragraph 71). It is asserted that the police were performing one of the most important government functions, namely the prevention, detection and investigation of crime and that the criminal justice system is very important. Where police are in the field, some degree of latitude should be given to them where an offence of a serious nature may have been, or is about to be, committed, as otherwise the effective performance of police work, which is an essential part of the administration of law, cannot occur: State of New South Wales v Tyszyk [2008] NSWCA 107 at [80] and [84] per Campbell JA. The police have a duty to the public at large to prevent and detect crime, both at common law (R v Metropolis Police Commissioner; Ex parte Blackburn [1968] 2 QB 118; [1968] 1 All ER 763; [1968] 2 WLR 893) and pursuant to s 6 Police Act 1990 (NSW). 230. The plaintiffs' written submissions on qualified privilege generally are as follows: (a) three sentences in the plaintiffs' submissions served after the hearing (see page 5); (b) a request dated 23 July 2010 not to hand down judgment by reason of reserved cases in the Court of Appeal, notably Radio 2UE Sydney Pty Ltd v Chesterton and Channel Seven Sydney Pty Ltd v Mohammed ; (c) submissions dated 16 September 2010, provided in response to my complaint about the inadequacy of the plaintiffs' submissions concerning qualified privilege, and in particular the failure to differentiate between the statutory defence and the defence at common law (as to the dangers of which, see Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 86A and 100A). These submissions merely repeat reliance upon lack of intention to convey and lack of reciprocity. They do not refer to s 30 Defamation Act 2005 (NSW). 231. Doing the best I can with the submissions that have been provided, what is clear from the evidence is that no attempt was made to obtain the plaintiffs' side of the story (s 30(h)), even when it was offered, and that the allegations made by the store employees were uncritically adopted by the police officers even though it was no more than suspicion (s 30(d) and from a source whose accuracy was under question (s 30(g))). 232. I am satisfied that no defence is being made out under s 30 of the Defamation Act 2005. One of the reasons why I am satisfied that no defence has been made out is that I am satisfied that the dominant motive for the publication was malicious. Malice 233. In Roberts v Bass (2002) 212 CLR 1; (2002) 194 ALR 161; (2002) 77 ALJR 292; (2003) Aust Torts Reports 81-683; [2002] HCA 57 Gaudron, McHugh and Gummow JJ at [76] that "mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice". 234. Views which are "wrong-headed, or prejudiced, or carelessly formed, or even irrational" will not constitute or demonstrate malice (per Gleeson CJ at [5] and [13]). What is necessary is "a purpose or motive that is foreign to the occasion [of qualified privilege]" which actuates the making of the statement (at [75] per Gaudron, McHugh and Gummow JJ). 235. The police were investigating the making of a very serious allegation against one person who was clearly intellectually disabled and another person who was a responsible member of the community, namely the person who identified himself as Mr Oddie's carer. Mr Lassanah wanted to go into the store to find out why these allegations had been made about him, in circumstances where it was obvious that at best these allegations were frivolous or erroneous and at worst they were actively mischievous. The purpose or motive that was foreign to the occasion of qualified privilege was that for a number of reasons, including concern about a respectable member of the public who is threatening to complain, which caused the police to use bullying techniques, namely to order the plaintiffs to "go home". I have not accepted the evidence of the witnesses called by the first defendant, and I find their explanation for failing to keep any record of the circumstances in which they detained and searched the plaintiffs implausible. The police officers clearly realised that there had been a mistake and that they had detained and searched a responsible member of the community and the disabled person in his care. Rather than attempt to resolve the situation, they repeated the allegations made by the store manager as if they were true. The assertion (written submissions, paragraph 114) that the police were acting reasonably and doing their job in performing their duties in accordance with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Police Act 1990 (NSW) needs to be measured against the facts in the case, including the matters raised by the plaintiffs as set out at [70] above. 236. The likelihood is that the police officers realised, almost from the very first, that there had been a mistake, and that they were dealing with an intellectually disabled person and his black American carer. Even the notation of the names of the plaintiffs seem to have been done towards the end of their detention, as Leading Senior Constable Ansted says that these names were noted just before he did the CNI checks, which occurred towards the end of their period of detention (Ansted T 200-201). 237. The police officers' lack of belief in the truth of the imputations is another issue relevant to malice. They did not tell the plaintiffs what was happening, and they ordered them to go home in such terms that the ordinary bystander would believe the allegations were still on foot. 238. Accordingly, if I have erred in holding that the matter complained of was not published on an occasion protected by qualified privilege, I would be satisfied that the occasion of qualified privilege was lost by reason of the malice of the first defendant's servants or agents in publishing the matter complained of. 239. The defence of triviality is also pleaded. Defence of triviality 240. The first defendant makes the following submissions concerning the defence of triviality pursuant to s 33 Defamation Act 2005 (NSW): (a) The publication is extremely limited. (b) It is oral. (c) The ordinary reasonable listening would at best get a few words spoken in normal voices in a noisy street, couched in terms of allegations. (d) There is "substantial antidote outweighing the bane" (written submissions, paragraph 119). (e) The words were not spoken loudly. (f) It was not a publication to anybody who knew either of the plaintiffs. 241. I was addressed on this defence as if s 33 is identical to its predecessor (s 13 Defamation Act 1974 (NSW)) and that the relevant principles are set out in Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439. It is conceded the allegations were allegations of seriousness. 242. I note that this defence was considered by McCallum J in Papaconstuntinos v Holmes à Court [2009] NSWSC 903 at [102]-[105]: "[102] The alternative defence relied upon by Mr Holmes à Court is the defence of triviality under s 33 of the Defamation Act 2005, which provides: "It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm." [103] The defence focuses on the circumstances of the publication. That must be the factor which renders it unlikely that the person defamed will suffer harm. The test is not whether the plaintiff did in fact suffer harm but the prospective likelihood of the publication causing harm in the circumstances in which it was published: Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 799E. [104] As noted by the court in Morosi , the defence is directed to trivial actions for defamation, such as "where a slightly defamatory statement is made in jocular circumstances to a few people in a private home": Morosi at 800D. I do not think that the publication complained of in these proceedings could fairly be described as trivial or assessed as unlikely to cause harm in the circumstances in which it was published. It was a carefully drawn written complaint by a prominent businessman stating his concerns as to the conduct of the plaintiff. [105] It must be borne in mind that the defence requires the defendant to show not merely that there is unlikely to be great or substantial harm but that there is unlikely to be any harm at all: King and Mergen Holdings v McKenzie (1991) 24 NSWLR 205 at 309G per Mahoney JA." 243. In the present case, the imputations were very serious and harm by the publication was likely to result. These were allegations of criminal conduct by police officers. The fact that a publication is made even to only one or more persons, where those persons may not believe what was said, is not sufficient to invoke the defence: Jones v Sutton, supra. 244. In particular, there was no antidote at all to outweigh the bane, contrary to the submissions of the first defendant. The plaintiffs were not offered an opportunity to explain themselves or told that they had been exonerated. 245. This is a clear case where a s 33 defence could not apply on the facts of the case. 246. All of the defences to the defamation have failed. I now consider the issues relating to the cross-claim. The coherence argument 247. The first defendant during oral submissions relied upon a defence of "coherence". I note that: (a) this defence was not pleaded or particularised prior to the hearing; (b) it was not raised during the trial; (c) it is not referred to in the first defendant's initial written submissions; and (d) no application has been made to amend the defence at any time. 248. As this defence was also raised in another hearing involving the first defendant, I directed the first defendant to serve submissions in these proceedings which outlined the nature and extent of this defence. In submissions served on 17 May 2010, the first defendant submits (paragraph 14) that the High Court has "ruled that potentially inconsistent legal principles and duties have to be applied consistently and coherently". Accordingly, it is argued "when there is legislation requiring the police to publish words that could defame the legal duty to publish should be accommodated by upholding one of more defences through the principles of common law qualified privilege and/or Mirror Newspapers v Harrison and/or pursuant to sections 30 and/or33 Defamation Act". 249. The first defendant initially relied on this coherence argument as an absolute defence in itself (relying upon Tame v State of New South Wales (2002) 211 CLR 317; (2002) 24 NSWCCR 385; (2002) 191 ALR 449; (2002) 76 ALJR 1348; (2002) 23(15) Leg Rep 2; (2002) 36 MVR 1; (2002) Aust Torts Reports 81-672; [2002] HCA 35 and Sullivan v Moody (2001) 207 CLR 562; (2001) 183 ALR 404; (2001) 75 ALJR 1570; (2001) 22(17) Leg Rep 2; (2001) 28 Fam LR 104; (2001) Aust Torts Reports 81-622; [2001] HCA 59), and then modified its position to assert that the court should "take into account" these principles in order to uphold one or more of the three defences to the defamation and/or find that the matter complained of did not convey the imputations. The position the first defendant took in relation to its impact on the cross-claim was never explained. 250. No explanation is provided for the delay in raising this "coherence" defence (AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27) or for failing to plead or particularise the way in which this principle interacts with these defences, or to advise me how I am to deal with it in relation to the cross-claim. 251. In response to these submissions I asked counsel for the first defendant to consider State of Victoria & Ors v Richards [2010] VSCA 113 where the Court of Appeal considered and rejected an argument that a claim for negligence against the police should be struck out on the basis that the duty to take care to avoid injury was inconsistent with the general duty of the police to investigate crime and enforce the law. A short note was provided which essentially restated the first defendant's position. 252. In State of Victoria & Ors v Richards, supra, the Court of Appeal of the Supreme Court of Victoria declined to strike out a claim for negligence brought by a bystander sprayed with capsicum spray during a police arrest. The appellant contended that the duty to take reasonable care to avoid injury was inconsistent with the general duty of the police to enforce the criminal law and in particular to arrest the suspected offender (at [10]). It was argued that the circumstances identified in Sullivan v Moody would not support such an inconsistent duty of care and further, at [13], that the need for coherence should be considered. 253. Redlich J observed, at [29] – [30]: "29. Sullivan v Moody does not lay down a new approach to the assessment of conflicting duties. The High Court in Sullivan referred to Hill as an example of circumstance were [sic] the proposed duty of care might be in conflict with the broader duty of the officers in the circumstances. In Zalewski Hansen J applied Hill as part of a broader assessment of whether a duty of care ought be recognised in the circumstances. Hansen J referred to policy concerns about the use of resources and the risk that police might carry out their duties 'defensively' to avoid liability- factors specifically considered by Lord Keith in Hill . These considerations underpin the 'inconsistent duties' analysis undertaken in Sullivan and by those members of the High Court who adopted an 'inconsistency' analysis in Tame . The reasons in Zalewski are in conformity with that analysis. The obiter comment by Young CJ in Klein which suggests the contrary is not justified. No sound reason has been advanced why Zalewski should be overruled. 30. If contrary to my opinion, the plaintiffs' claim is not arguably covered by any accepted category of liability, a consideration of the facts bearing upon the relationship between the plaintiffs and the police and an analysis of the salient features, such as legal policy, coherence of the law, conformity with other duties and obligations, foreseeability, degree of harm, and vulnerability do not compel the conclusion that the plaintiff must fail in her claim that such a duty exists." 254. For the reasons explained by the High Court in AON Risk Services Australia Ltd v Australian National University, supra, the first defendant should not be permitted to take the plaintiffs and cross-defendant by surprise by a defence which is not only not pleaded but was never raised during the trial or even in written submissions in these proceedings. 255. I do not propose to permit reliance upon this defence in those circumstances. The cross-claim 256. Both the cross-claimant and the cross-defendant ran the cross-claim on an "all or nothing" basis. No submissions were made that a proportion of the liability, as opposed to the whole of the liability, should be awarded. In personal injury and other tort claims, such submissions are commonly made and it puts me in a difficult position that neither of these parties made such a claim here. 257. The first defendant submits that in accordance with the principles set out in Webb v Bloch (1928) 41 CLR 331; (1928) 2 ALJR 282, that the second defendant should bear complete responsibility for the defamation and similarly in accordance with the principles of Speight v Gosnay (1891) 60 LJQB 231 it was a natural and probably consequence of their making these statements that they would be repeated. The circumstances in which the second defendant activated the hold-up button made it inevitable that any allegations they made concerning the conduct of the plaintiffs would be repeated and that the plaintiffs would be stopped and searched. No evidence had been called on behalf of the defendants in relation either to this issue or in relation to the false imprisonment claim, for which the same principles of responsibility, broadly speaking, apply: Ruddock v Taylor, supra, at [29]-[39]. 258. The first defendant submits that if there has been any wrongdoing on the part of the police, it was brought about by the conduct of the second defendant in pressing the alarm button to activate a hold-up alarm, which was a publication to the police to the effect that an armed robbery was taking place. The first defendant relies upon the failure of the second defendant to call the shop manager, Mr Michael Guidi, although he was available to give evidence, the female employee of the shop, Ms Ahmet, the security man, the two other male persons who were employees present at the store as is clear from the CCTV footage or indeed any evidence: Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278. 259. As to the failure of the second defendant to call evidence, Rich J in Insurance Commissioner v Joyce, supra, at 49 observed: "… when circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness box a court is entitled to be bold." 260. It is submitted that the second defendant had the power to produce evidence disputing any matters pleaded against it in the cross-claim and that the failure to do so would enable a finding against the second defendant on the cross-claim: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371. 261. The second defendant submits, in its defence (there being no cross-claim by the second defendant), that the police independently came to a view that the plaintiffs had "possibly done something adverse inside the store" (second defendant's written submissions paragraph 17) which required further investigation. It was submitted that there was evidence of the police having an "independent mind" (written submissions paragraph 19). 262. An analysis is provided of the CCTV footage and it would be fair to say that if anything critical could be said against the plaintiffs arising from this footage, the second defendant has drawn it to my attention. For example, much is made of the fact that Mr Oddie can be seen entering the store "with a black beanie pulled down to just above his eyes". Mr Oddie is certainly wearing a cap of some kind. However, none of this was put to Mr Lassanah. 263. The pressing of a hold-up button produced an inevitable strong response from the police officers who raced to the scene to deal with a potentially highly dangerous criminal activity. This is particularly the case where such a call was made from a shop in one of the busiest streets in Sydney towards the end of the lunch hour period, with a potential of risk to innocent bystanders. 264. Although it is asserted in written submissions that information about the plaintiffs "appears to have been given" (written submissions paragraph 10) to Leading Senior Constable Ansted by Michael Guidi outside the store, and inside the store, as well as providing the CCTV footage, there is in fact no evidence of what the police were told apart from the statements made by the police without the benefit of any contemporaneous notes to refresh their memories. In any event, what the police seem to have been told was that the plaintiffs were acting suspiciously in some way and had been invited to look at some of the tape. It is apparent from the first words of the police officers to the radio operator that they were trying to work out what had really happened, and that it tends to suggest that they were given less than helpful information. 265. Given the "all or nothing" approach the cross-claimant and cross-defendant have taken to the cross-claim, and the fact that I have not been addressed at all as to whether a percentage should be awarded, I do not propose to speculate on what percentage of liability should be sheeted home to the cross-defendant but to make an order for 100% indemnity or contribution. 266. I note that if I had been asked to apportion this indemnity, I would have made the same finding. The cross-defendant's servants or agents were entirely responsible, on the facts of this case, for the police being called, for the identification of the plaintiffs as potential robbers and for the persisting nature of these allegations which appear to have ended only when the police decided not to investigate the matter further and to leave the store. 267. Nor do I consider that the cross-defendant should receive any credit for the apology read out in court. It was a very late apology, and I note the evidence of Mr Lassanah that he thought this apology inadequate. He was not consulted as to its contents. It would have meant nothing to Mr Oddie, who was not only no longer in court (having been excused) but who would not have been able to understand it. 268. The cross-defendant submits it cannot be held liable for the damages for the defamation because the defamation case brought against it has been dropped: written submissions paragraph 32. This misconceives the nature of the cross-claim. It is not necessary for the cross-defendant to be sued for defamation for the first defendant/cross-claimant to bring a cross-claim. 269. Accordingly I have made an order in the cross-claim that the second defendant/cross-defendant should indemnify the first defendant/cross-claimant for 100% of the judgment in these proceedings. Damages 270. Mr Lassanah is a man of the highest reputation. He served his country for a decade with distinction as a member of the navy; he has no criminal record of any kind; he is a responsible professional with tertiary qualifications, carrying out a difficult and emotionally demanding profession; he is a middle-aged man who is entitled to assume that he would be treated with dignity and respect. 271. As for Mr Oddie, his intellectual disabilities, which are profound, should excite compassion and concern, and he and the family members who love and cared for him should be entitled to expect that police will deal with an obviously disabled person in accordance with the provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) that were enacted for his protection. I note with concern that as a teenager Mr Oddie was in fact arrested for his conduct in circumstances which drew some strong criticism from Dr Reddel (Exhibit B). I understand from Mr Evatt that Mr Oddie found simply coming to court for these proceedings to be a frightening experience, and for this reason he was excused from attendance at the hearing. 272. The submissions of the parties in relation to damages are short and not very helpful: (a) The plaintiffs, in seven sentences, refer mainly to the claims for aggravated and punitive damages. (b) The first defendant, more helpfully, refers to Coyle v The State of New South Wales [2006] NSWCA 95 and Hage-Ali v The State of New South Wales [2009] NSWDC 266 and asserting that the damages should be "very low or modest" (written submissions, paragraph 174). (c) The second defendant asserts that no damages are available as the only persons who heard and understood the matters complained of related to the plaintiffs were the five police officers present. Alternatively, damages should be very low. 273. These submissions do not deal with the difficult issues of the correct approach to damages to be awarded in a claim for defamation and false imprisonment. The overlap between general damages and aggravated compensatory damages for defamation and general, aggravated and exemplary damages for false imprisonment was considered by me in Webster v Coles Myer Limited; Thompson v Coles Myer Limited [2009] NSWDC 4 at [291]ff. I have adopted the same procedure for these causes of action, firstly noting (as to defamation) the cap on damages and statutory provisions, as well as the principles set out by Hayne J in Rogers v Nationwide News Pty Ltd (2003–4) 216 CLR 327 and (as to the false imprisonment claim) by Bergin J in Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 at [87]–[106]. As to the overlap between defamation and false imprisonment, I have used the procedure I adopted for damges for these torts in Photi v Target Australia Pty Ltd [2007] NSWDC 265 at [167]–[178]. Damages issues concerning the claim for defamation 274. By way of general comment, in these proceedings, as was the case in Webster v Coles Myer Limited; Thompson v Coles Myer Limited, supra, and Photi v Target Australia Pty Ltd, supra, there was an extremely limited publication, and this is a matter of very great weight. 275. These were slanders to one or more police officers. However, as I note in Webster v Coles Myer Limited; Thompson v Coles Myer Limited, supra, at [295] they are a very special kind of publication, in that the natural and probably consequence of the making of an allegation of criminal conduct to the police means that records are made and kept and also that bystanders may see and hear about the publications in question. 276. There is a claim for aggravated compensatory damages. Damages issues arising from the claim for false imprisonment 277. As was the case in Webster v Coles Myer Limited; Thompson v Coles Myer Limited, supra, and Photi v Target Australia Pty Ltd, supra, this was a period of false imprisonment of very short duration. In fact, the duration of this arrest was a matter of minutes. This must be given great weight in any assessment of general damages. 278. There is a claim for aggravated and exemplary damages. 279. Having made these general comments, I consider the quantum for these claims. General and aggravated compensatory damages for defamation 280. Mr Lassanah gave the following evidence about hurt to feelings from the defamation (T 43-45): "Q. Yes, what else did they say? A. They said we were not allowed back in the store because we are thief and we are attempting to steal. I mean, we were acting like thieves. Q. Now, you say this was in a loud voice? A. Yes, it was a very loud - very. It was very embarrassing, very embarrassing. Very embarrassing to see. Q. Were there any people in King Street-- A. Yes, there were hundreds- Q. --standing and looking? Or passing by or what? A. Yes, sir. There were hundreds of people. Standing, looking, passing by. It was, it was very embarrassing, I mean. … Q. Were all the people nearby - were they all walking or what? A. They were just standing there looking. Q. Standing looking? A. Yeah, looking. Q. And how did you feel about all this? A. I don't think I can describe the way I felt. I was upset, upset. Very upset, very upset. Q. But were you happy? A. Absolutely not, absolutely not. Q. Well, what were you? A. I was angry actually, angry. Very angry, because I have never stole in my life. Q. Well, you did say before "embarrassed". Q. I was embarrassed, angry. Humiliated. Q. Humiliated? A. Very humiliated, very, very. Q. Were you upset at all? A. Very upset, very upset." 281. I accept the evidence that the circumstances in which Mr Lassanah was stopped, made to sit on the footpath, searched and the subject of allegations of robbery, all in a public place, were matters of very great hurt to feelings. 282. It is not possible to know how Mr Oddie felt. All I know about his feelings is that he is frightened to be at court because he thinks he has done something wrong. The parties could not direct my attention to any cases where the person defamed has not been able to understand the matter complained of. However, Mr Oddie knew what a police officer was, and he appears to have known people thought he had done something wrong. 283. When awarding general damages, where there is a claim for aggravated compensatory damages, damages should be awarded at the upper end of the scale. 284. In relation to each of the plaintiffs, the claim for aggravated compensatory damages comes more from the conduct of these proceedings than from the conduct of the police officers. I shall deal with each of these in turn. Aggravated compensatory damages – Mr Lassanah 285. There was a call to the first defendant to make an apology to Mr Lassanah which the first defendant elected not to make (T 59). Instead, Mr Lassanah was vigorously cross-examined. One of the matters about which he was cross-examined was his evidence that his driver's licence was taken and not returned (T 67-68). In addition, the hurt to his feelings was aggravated by his knowledge of their falsity. 286. Failure to apologise may, in certain circumstances, amount to grounds for the award of aggravated compensatory damages. The first defendant did not apologise and the second defendant's apology (which was not in relation to the defamation, as it has not been sued for defamation) is wholly inadequate. 287. Section 20 Defamation Act 2005 provides as follows: " 20 Effect of apology on liability for defamation (1) An apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person: (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and (b) is not relevant to the determination of fault or liability in connection with that matter. (2) Evidence of an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter. (3) Nothing in this section limits the operation of section 38." 288. In the Second Reading speech of the Defamation Bill, Mr Bob Debus commented on the function of what is now s 20 Defamation Act 2005: "Still on the subject of apologies, clause 20 expressly provides that an apology does not constitute an admission of liability. This is designed to encourage defendants to say sorry. Sorry is a singularly powerful word that is capable of vindicating a defamed person's reputation, and healing the hurt caused by an ill-conceived or careless publication. Clause 20 is in similar terms to section 69 of the New South Wales Civil Liability Act 2002. Another modification to the existing "offer of amends" procedure is that clause 14 allows publishers to seek further particulars from an aggrieved party. Without the ability to obtain further information, publishers could otherwise be forced to respond to very general assertions that their publications are defamatory. If publishers are to take full advantage of the "offer of amends" provisions they will need to be able to frame offers that address the particular parts of publications that are alleged to be defamatory." (NSW Parliament, Legislative Assembly, 13 September 2005) 289. In the present case, an apology from the police to both the plaintiffs would have been a more appropriate way for this litigation to be conducted. In addition, Mr Lassanah should not have been challenged in his evidence about the driver's licence when this was clearly wrong. For these reasons, an award of aggravated compensatory damages is appropriate. Aggravated compensatory damages – Mr Oddie 290. A defence of contextual justification was brought, on the basis of Mr Oddie's prior arrest for offences. It was abandoned on the day of the trial. 291. Prior to the hearing the defendants were served with a medical report (Exhibit B) explaining not only the profound intellectual disability of Mr Oddie but also the circumstances in which, in less enlightened times when he was a young teenager, he had been arrested for conduct which was clearly related to his mental health problems. For the defendants to persist in their defence of contextual justification after service of that report is conduct warranting the award of aggravated compensatory damages. Quantum for general and aggravated compensatory damages 292. I have had regard to a number of comparable verdicts drawn to my attention by senior counsel for the first defendant as well as to the comparable verdicts to which I referred in Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123. 293. Taking all of the above factors into account, I am of the view that the amount of the damages for each of the plaintiffs should be $10,000 general damages and $5,000 (in the case of Mr Lassanah) and $10,000 (in the case of Mr Oddie) for aggravated compensatory damages. General damages for false imprisonment 294. Mr Lassanah and Mr Oddie claim general damages for the harm caused by the wrongful acts of the defendants in causing his false imprisonment. Such damages are to compensate each of them for the injury to liberty, being the loss of time considered from a non-pecuniary viewpoint, as well as the injury to feelings, namely the indignity, mental suffering, disgrace and humiliation caused by the false imprisonment. It is in relation to this latter category that there is an overlap with defamation damages which I have taken into account in the manner I adopted in Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123. 295. Compensatory damages are general in nature, but they may be increased by the conduct of the defendant in circumstances which would justify an award of aggravated or exemplary damages. 296. As to general or compensatory damages, I take into account the whole of the conduct of the defendant from the time of the incident up until the time of the verdict: Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 at [89] per Bergin J. I have adopted the same method of comparison of awards of damages in false imprisonment cases and note (Vignoli at [93]) that there should be an appropriate and rational relationship between the award of damages and the harm suffered by each of the plaintiffs. 297. I have also had regard to awards of damages which have been approved by the Court of Appeal. Some of those decisions, however, are ten or more years old (see, for example, McDonald v Coles-Myer Limited (trading as K-mart Chatswood) (1995) Aust Torts Rep, 62,692, where the Court of Appeal found that $12,500 damages was not "significant" and increased the damages award to $27,000). I note the quantum of damages in Webster and Thompson was not the subject of any appellate comment and have had regard to the factors relevant to quantum in that case. 298. However, the quantum of damages for false imprisonment here are considerably more modest, because the shorter length of time, the place and the general circumstances are of a considerably less distressing nature. 299. Taking all the above into account, I am of the view that the amounts awarded for the false imprisonment, including the search of each of the plaintiffs and the fact that they were made to sit on the footpath, should be for a similar amount as that awarded for the defamation. 300. Unlike defamation awards, which have a statutory cap, awards of damages for false imprisonment are at large. However, the hurtful part of the incident for Mr Lassanah appears to have been the accusation, rather than the conduct of the police. It was the false accusation of intending to steal that was his greater source of distress. 301. In addition to there being no statutory cap, exemplary as well as aggravated damages are available. I shall consider each of these in turn. Aggravated compensatory damages 302. The circumstances in which Mr Lassanah was made to sit on the pavement and be searched in public were humiliating. The police could have undertaken these steps in the store, or used their common sense and not searched the plaintiffs when it was apparent from the CCTV that no attempt to steal had taken place. The same applies to Mr Oddie. 303. In Mr Oddie's case, there is an additional concern. It is a serious matter that he was not accorded the statutory protection available to persons with an intellectual disability. It was clear that at least one police officer had noticed his disability, and the police were told of his disability by Mr Lassanah. Exemplary damages 304. Exemplary damages are not compensatory in nature but punitive: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 at 471. They are "to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace" and "to mark the court's condemnation of the defendant's behaviour" (Lamb v Cotogno (1987) 164 CLR 1 at [9] and [10]). They are an exceptional remedy, rarely awarded. They are not awarded in defamation actions and I must take care to ensure any exemplary damages relate to the false imprisonment claim. 305. In Riley v New South Wales [2003] NSWCA 208 the NSW Court of Appeal at [136] ff explained that such damages are only rarely awarded (Gray v Motor Accidents Commission (1998) 196 CLR 1 at [12] and [20]. where there is "high-handed, insolent, vindictive or malicious conduct" amounting to or exhibiting a "conscious wrong-doing in contumelious disregard of another's rights": Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 77, Gray at [14]. 306. The plaintiff in Riley was an emotionally disturbed person whose conduct was asserted to have contributed to the circumstances in which he was arrested. While that is not the case here, I am satisfied that the conduct of the police did not go beyond "ordinary human fallibility" (Riley at [142]) and accordingly these damages should not be awarded. 307. However, I do not consider that this is an appropriate case for exemplary damages. There is no evidence the store employees' conduct in pressing the button was high-handed, insolent, vindictive or malicious. The police were in a very difficult position, with the staff of the shop having pressed the hold-up button and insisting that the plaintiffs had attempted to rob the store. They did their best to bring the whole incident to a close reasonably quickly. This is not a case of misconduct of the kind described in New South Wales v Delly [2007] NSWCA 303. 308. I propose to award Mr Lassanah the sum of $15,000, including an amount of $5,000 for aggravated compensatory damages, and to award Mr Oddie the sum of $20,000. 309. Finally, as Mr Oddie is a disabled person, appropriate orders will have to be made for the damages to be paid into court for investment pending orders of the Supreme Court or Guardianship Tribunal, unless such orders are already in existence, and I have made orders accordingly. Orders (1) Judgment for the first plaintiff for defamation in the sum of $15,000. (2) Judgment for the second plaintiff for defamation in the sum of $20,000. (3) Judgment for the first plaintiff for false imprisonment in the sum of $15,000. (4) Judgment for the second plaintiff for false imprisonment in the sum of $20,000. (5) The judgment sum referred to in orders (2) and (4) above is to be paid into court for investment pending orders of the Supreme Court or Guardianship Tribunal. (6) The parties have liberty to bring in Short Minutes of Order reflecting the mathematically agreed calculation of interest on the judgment sums. (7) Judgment for the first defendant/cross-claimant on the cross-claim of 100% indemnity and contribution against the second defendant/cross-defendant, including an indemnity for the costs of these proceedings. (8) Defendants pay the plaintiffs' costs of these proceedings. (9) Second defendant/Cross-defendant pay the first defendant/cross-claimant's costs of the cross-claim. (10) Liberty to apply in relation to costs and interest. (11) Exhibits retained for 28 days. ****** 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.