New South Wales Court of Appeal CITATION : Woodley v Boyd [2001] NSWCA 35 FILE NUMBER(S) : CA 40728/99 HEARING DATE(S) : 9 February 2001 JUDGMENT DATE : 2 March 2001 Geoffrey Arthur Woodley (Appellant) PARTIES : Brian Brederick Boyd (First Respondent) Christopher David Caldwel (Second Respondent) State of New South Wales (Third Respondent) JUDGMENT OF : Heydon JA at 1; Davies AJA at 92; Foster AJA at 98 LOWER COURT JURISDICTION : District Court LOWER COURT DC 5625/97 FILE NUMBER(S) : LOWER COURT Dent DCJ JUDICIAL OFFICER : COUNSEL : L T Grey (Appellant) P J Saidi (Respondent) SOLICITORS : Pappas J - Attorney (Appellant) Crown Solicitor's Office (Respondent) CATCHWORDS : Tort - Whether unlawful arrest - Whether assault - Damages sought - Whether collateral purpose of arrest - Police conduct - Use of force by police during arrest - Whether excessive force used - Resistance of arrestee - Effect of trial judge's rejection of plaintiff as witness of truth on claim for unlawful arrest and assault. D LEGISLATION CITED : Prohibited Weapons Act 1989 Abalos v Australian Postal Commission (1990) 171 CLR 167 Alderson v Booth [1969] 2 QB 216 Dellit v Small, ex p Dellit [1987] Qd R 303 Gibson v Green 10 S & R 16 (1823) Grainger v Hill (1838) 5 Scott 561 Greenwood v Ryan (1846) 1 Legge 275 Hardy v Merill 56 NH 241 (1875) CASES CITED: Lindley v Rutter [1981] QB 128 Ludlow v Burgess (1971) 75 Cr App R 227 McIntosh v Webster (1980) 43 FLR 112 R v Hoare [1965] NSWR 1167 R v Thomas (1992) 65 A Crim R 269 R v Turner [1962] VR 30 Warner v Riddiford (1858) 4 CB (NS) 180 Wiltshire v Barrett [1966] 1 QB 312 Zecevic v DPP (Vic) (1987) 162 CLR 645 DECISION : Appeal dismissed; the appellant is to pay the costs of the defendants. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40728/99 DC 5625/97 HEYDON JA DAVIES AJA FOSTER AJA 2 March 2001 WOODLEY v BOYD Tort - Whether Unlawful arrest - Whether Assault - Damages sought - Whether collateral purpose of arrest - Police conduct - Use of force by police during arrest - Whether excessive force used - Resistance of arrestee - Effect of trial judge's rejection of plaintiff as witness of truth on claim for unlawful arrest and assault. The appellant had an encounter with two policemen (the first and second respondents) on the night of 18 December 1991. The appellant was driving his car and was stopped by the policemen. An altercation ensued resulting in the breaking of the appellant's arm. The appellant alleged that the policemen assaulted and unlawfully arrested him, and he sued them (and the third respondent, the State of New South Wales) in the District Court for unlawful arrest, assault and malicious prosecution. The claim of malicious prosecution related to charges brought against the appellant in relation to his behaviour on the night in question. At trial, the plaintiff and the respondents proffered different versions of the events that occurred on 18 December 1991, but the trial judge accepted the respondents' version. The appellant's claims failed at trial and the judge entered verdicts for the defendants. This is an appeal from those orders on the grounds that even if the trial judge was correct in accepting the respondents' version of events, the appellant should nonetheless have succeeded at trial. Held by Heydon JA (Davies and Foster AJJA concurring), dismissing the appeal: 1. The trial judge did not err in concluding that the arrest was lawful and fully justified and no undue force was used. Nor did the trial judge err in failing to consider a submission to the contrary, which was put to the trial judge. The Court of Appeal is at liberty to reverse the trial judge's conclusion since it was a conclusion of mixed fact and law. Abalos v Australian Postal Commission (1990) 171 CLR 167, referred to. However, the Court of Appeal will not do so because the trial judge did not err in this regard for the following reasons: (a) The trial judge had made findings unfavourable to the appellant in relation to the question of whether the arrest was lawful and for a bona fide purpose. (b) Evidence existed that was unfavourable to the appellant in this regard. (c) There were no admissions by the police that favoured the appellant's claim of collateral purpose, and this claim was not put directly to the policemen by counsel for the appellant at trial. (d) The action of the police in applying restraint and pain to the appellant was not excessive in the circumstances and therefore the appellant was not entitled to use reasonable force to resist. Any evaluation of police conduct must be made with "the pressure of the events and the agony of the moment" in mind and not by the application of hindsight. McIntosh v Webster (1980) 43 FLR 112 and R v Turner [1962] VR 30, referred to. 2. The trial judge did not err in finding that the injuries suffered by the appellant were the result of his own "violent and irrational" response to being placed under handcuffed arrest. This is because the evidence strongly supports a finding that the appellant had made a "sudden and violent" move, which was sufficient to fracture his own arm. 3. The trial judge did not take into account irrelevant considerations or conclusions of fact unsupported by evidence, and hence did not err in this regard. The trial judge may have made errors in relation to the diagnoses of Drs Lee and Knox and the applicability of those diagnoses to the plaintiff at the time of the police encounter. However, such errors were immaterial and did not alter the trial judge's findings on the appellant's credibility or the evidence that pointed to the appellant's violent tendencies. ORDERS: 1. Appeal dismissed. 2. Appellant to pay respondent's costs of the appeal. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40728/99 DC 5625/97 HEYDON JA DAVIES AJA FOSTER AJA 2 March, 2001 WOODLEY v BOYD JUDGMENT 1 HEYDON JA: Background This is an appeal from orders made by Dent DCJ, QC, made on 25 August 1999 after a long trial. The primary orders complained of are the verdicts which he found for the defendants. 2 On 18 December 1991 the plaintiff was driving north near Cundletown, a small village about 7 kilometres north of Taree. He was stopped by two police officers (the first two defendants). The plaintiff alleged that he was physically assaulted by the police officers after they had arrested him unlawfully, and was also the victim of malicious prosecution. The last-mentioned complaint arose in part out of the acquittal of the plaintiff by a magistrate on 28 August 1992 on four charges brought arising out of the events of 18 December 1991. No case based on malicious prosecution was pressed on the appeal. 3 The proceedings have had an unfortunate history. A Statement of Claim was filed on 7 June 1993. Particulars were requested by, and the form of the Statement of Claim was criticised in, a letter of 7 September 1993 from the defendant's solicitors to the plaintiff's solicitors. That was not replied to until 14 September 1994, when a draft Amended Statement of Claim was sent. An Amended Statement of Claim was filed on 22 September 1994. On 9 February 1998 a trial commenced before Vincent ADCJ and a jury. On the twelfth day of the trial, 24 February 1998, Vincent ADCJ acceded to an application that the jury be dispensed with and that he proceed to determine the case alone. Written submissions were filed thereafter. Vincent ADCJ died on 5 June 1998 without delivering a judgment. 4 On 9 November 1998 the trial resumed before Dent DCJ. He read the transcript, and the trial then resumed again on 29 April 1999. The evidence continued until 14 May 1999. Addresses, which included reliance on detailed written submissions, were fixed for 17 May 1999. The trials were bitterly fought, the parties did not exhibit much testimonial self-denial, and the materials to be considered by the trial judge were very substantial. The trial judge delivered judgment on 25 August 1999. The Reasons for Judgment of the Trial Judge 5 After setting out the issues as they appeared from the pleadings (Red 15-17), the trial judge set out the plaintiff's evidence in summary (Red 18-25). So far as Grounds 1 and 3 in the Notice of Appeal are concerned, it is not necessary to examine this evidence in detail in view of the following paragraph in the appellant's Written Submissions, which is a realistic statement of one aspect of the difficulties facing the plaintiff's case, and which corresponds with the structure of the Notice of Appeal (para 2.1): "His Honour was faced with two versions of what happened in the space of about two minutes on a night nearly eight years in the past. Clearly, his Honour had to decide whether either version was completely true, or whether the truth was somewhere between the two versions, and in the face of past authority the Appellant does not seek to re-agitate in this Court his Honour's finding that the account given by the Respondents was true, even though it was heavily contested." In a nutshell, the plaintiff's case (on Grounds 1 and 3, but not 2 and 4-5) now is that even if the version of events contended for by the first and second defendant is correct, the plaintiff's case must still succeed. 6 The balance of what the trial judge said after dealing with the plaintiff's evidence is as follows (Red 25.8-39.1): "Senior Constable Brian Frederick Boyd gave evidence in the proceedings before the late Acting Judge Vincent and before me. The substance of his evidence was that he had been a policeman since 1975, and at the time of giving evidence before me and before the late acting Judge, he was attached to the Kuring-Gai highway patrol at Hornsby. He had since December of 1991 been certified by the Commissioner of Police to operate a microwave speed detector in the State of New South Wales. Before going on shift on the day in question this equipment was checked. He went out on shift at about 5pm on the 18th December 1991 using police vehicle serial number 32450 which to his recollection was a straight coloured brown goldy bronze sort of colour. He explained the testing procedures in respect of the microwave speed detector unit and swore that at about 10.45pm he was patrolling in the subject car in the company of Constable Caldwell in the Pacific Highway at Cundletown travelling in a southerly direction. He explained Cundletown was six to seven kilometres north of Taree. He swore he observed another vehicle travelling towards the police vehicle in a northerly direction in front of the Cundletown Motor Lodge and explained the relative positions by exhibiting a diagram to the court. He says that the police vehicle was approximately 300 metres south of the commencement of the 60km/h zone when he saw an oncoming vehicle and estimated its speed as being well in excess of 60km/h. He saw the numerals appear in the target display, window '96' in the display window of the detector. After hearing a tone he checked the patrol speed against the speed indicated on the checked police speedometer and found that they were co-related. He swears that the oncoming vehicle was checked for four seconds and a speed of 96 km/h was displayed on the target display while the tone emitted remained constant. He explained that the pitch of the tone emitted is directly proportionate to the speed of the vehicle coming towards the police vehicle. … He observed that the detector fitted in the police vehicle was giving a positive signal indicating that the oncoming vehicle was fitted with a radar detection device which was on and that the signal continued getting stronger until what turned out to be Mr Woodley's vehicle passed them in the opposite direction. He explained that the vehicle was in the vicinity of Dennison Street, Cundletown when first seen, which was approximately 300 metres from the police vehicle, and that just on the southern side of Dennison Street and its intersection with what is the highway, there is a crest in the road reducing visibility of oncoming vehicles. He says that he made a U-turn and pursued the plaintiff's vehicle. He says that both the vehicles entered into the 100km/h area north of Cundletown and he signalled to the plaintiff's vehicle to stop which it did and he observed that while it was in the process of stopping the radar detector detection element in the police detector suddenly ceased to emit the audible and visual readings which would indicate to him that the plaintiff had turned his radar detector off at that point of time. He says he made a U-turn in the highway to follow at Arcarma Avenue and thought that the distance from the point of that turn to the sign to the north of Cundletown changing the speed limit to 100km/h would be approximately 400 to 500 metres and that this was an estimate based upon recollection going back some years. He says that the plaintiff's vehicle came to a stop roughly 400 metres north of the 100km/h sign, and that after stopping the police vehicle he walked to the plaintiff's vehicle with Senior Constable Caldwell. The plaintiff was still seated in the driver's seat. He says that he said 'Good evening sir. Your speed has just been checked on radar at 96 km/h in the 60 km/h area, and the instruments in the police vehicle indicate that your vehicle is fitted with a radar detector. Would you please produce your licence and the radar detector'. The plaintiff got out of his vehicle and said 'I don't have a radar detector'. The plaintiff produced his licence. Boyd observed that he was holding in his hands a set of keys with a pocket knife attached to it and he said to the plaintiff 'Put them on the floor'. He felt that the plaintiff was in some way threatening him with that knife and he then saw Senior Constable Caldwell reach into the plaintiff's vehicle and remove nunchakus. Caldwell said to the plaintiff 'Did you know that these were illegal, a prohibited weapon in this State'. The plaintiff replied 'Well [they're] not in the ACT' [(Black 7/1153 line 4)]. Boyd noticed that Woodley was agitated and on edge and obviously not pleased to be in the position he found himself in, and he thought he appeared to be very nervous. The plaintiff was asked to produce the radar detector in his vehicle. The plaintiff replied 'I don't have a radar detector'. The plaintiff was asked to open the bonnet of his vehicle. This was done. At this point of time Senior Constable Boyd was of the opinion that he could ask the plaintiff to surrender the radar detector device. The engine compartment of the plaintiff's vehicle was searched. The plaintiff said 'Do you have a warrant to search my vehicle' and Boyd said 'No I don't need one. I have already found a prohibited weapon in your car, this gives me the power to search your vehicle'. Boyd believed that he had the power to search the vehicle both under the Firearms and Dangerous Weapons Act and the Motor Traffic Act, having detected the radar detector. The plaintiff then slammed shut the bonnet of his vehicle and hurried around to the driver's side and reached in and grabbed the keys from the floor, closed and locked the driver's side door and placed the keys of the vehicle in his right rear trouser pocket, and in performing these actions he appeared to be agitated and becoming aggressive towards the Police. At this point the plaintiff said 'You show me my speed on the radar' and the trio walked back to the police vehicle. Boyd said to Woodley 'That's your speed there. The 95 flashing on the left hand side. The other speed is on the right hand side and that is the speed of the police vehicle' and then said to the plaintiff 'I am now going to search your vehicle for any other prohibited weapons'. The plaintiff then reached into his rear trouser pocket and turned and threw his keys into the paddock on the western side of the Pacific Highway. The plaintiff then turned back to Boyd and yelled 'You cannot search my car' in a very much raised tone of voice. Boyd said 'You are now under arrest for a prohibited weapon' and took hold of the plaintiff's right arm around the wrist area to control the situation which was the plaintiff's agitated state. He did not wish to give the plaintiff any chance of assaulting Senior Constable Caldwell or himself and he did not wish Mr Woodley to walk away from the situation. The plaintiff tried to pull his arm away from something between a tug of war and an arm wrestle. Shortly after this struggle commenced Boyd placed a wrist lock on Woodley as taught to members of the Police Service by Police Survivor Trainers at the Police Academy. He explained that this is still a current technique which is taught to trainees now. The hold was demonstrated. Boyd explains that when applied it causes acute pain in the area which is usually enough to control a person and if the person continues to struggle more pressure could be applied. Boyd explained that the plaintiff continued to struggle after the application of the wrist lock either because he had not applied it correctly or had not got the pressure to actuate the nerve pain. The plaintiff continued to struggle and pull away. The plaintiff said 'What am I being arrested for?' Boyd said "I have already told you for possession of the nunchakus'. A short time after that Boyd decided to swap from a wrist lock to a full arm lock to control the plaintiff who was still trying to pull away. Caldwell at that time was on the opposite side of Woodley and had taken hold of his left arm. Boyd successfully applied a wrist lock which was demonstrated. The plaintiff continued to struggle and tried to shift his weight around to try and straighten his arm out and release himself from the hold and he was applying a great deal of force. He described the plaintiff as a strong man. Boyd then said to Caldwell 'I am going to handcuff him'. He took his handcuffs out and started to put them on and the plaintiff shouted 'You are not putting them on me' and then made a sudden move of his body both forwards and down and a snapping sound was heard by Boyd. Boyd described this as a move with as much force as the plaintiff could muster, a sudden and violent move. He did not move forward that much bearing in mind that Boyd had a firm grip and that Caldwell had a grip on the other side. The parties were at the passenger side of the police vehicle when the incident occurred. Immediately after the snapping sound Woodley said 'You have broken my arm and I hope you are pleased with yourself'. He says that the torch that he carried in the police vehicle and used to search the engine compartment of the plaintiff's vehicle was on its ring on the appointments belt while he was applying the arm lock to the plaintiff. The plaintiff said 'Get an ambulance right away'. Boyd said 'We can take you to hospital it will be quicker'. The plaintiff attempted to get into the rear of the police vehicle and said 'I can't get in it hurts too much'. The Taree Police Station was radioed for an ambulance to attend at the location and for the shift supervisor to attend the location as the patrol commander's representative. Their call was recorded in the police radio log at Taree Police Station at the hour of 22.50. Whilst the parties were waiting for the ambulance Caldwell searched the paddock and found the keys. Boyd said to the plaintiff 'What's in the car you are trying to hide. Don't tell me it is just the radar detector'. The plaintiff said 'I have $11,000 in cash in the boot'. Boyd said to the plaintiff 'Don't tell me you thought we were going to rip you off' and the plaintiff looked at Boyd and made no reply. Boyd said to the plaintiff 'What are you carrying that amount of cash with you'. The plaintiff said 'I am on my way to Grafton to pick up a mate and we are going to Brisbane to go to an auction'. Boyd said 'What type of auction'. The plaintiff said 'A general auction'. Boyd said 'What are you going to buy'. The plaintiff said 'Anything that takes my fancy'. Boyd said 'Well you get the money out of the boot and take it with you to hospital because I don't want the responsibility of having it left here'. The plaintiff was handed his keys and he opened the boot of his vehicle and removed a yellow envelope from between a stack of clothes in the boot. Boyd said 'Give me a look'. The plaintiff showed him an unsealed yellow envelope containing a large amount of 100 dollar notes. The plaintiff placed the envelope in his rear left hand trouser pocket. Shortly thereafter an ambulance arrived and the plaintiff was treated at the scene. A Sergeant Scotcha of Taree police had come to the scene, the plaintiff was conveyed by ambulance to Manning Base hospital and the plaintiff's vehicle was searched in the presence of Sergeant Scotcha and the offending radar detector which the plaintiff denied having was found concealed in the dash board of the subject vehicle. It was operated by a toggle switch on the right hand side of the steering wheel under the dash. The vehicle was taken to Taree Police Station to a secure yard and further searched. Constable Boyd made his entries in his notebook and other departmental documents and associated paper work and at five in the morning of the day following the arrest he again checked the radar equipment in the police vehicle as that was the end of his shift. He had sought advice from the most senior detective at Taree Police Station relating to the charges that ought to be laid on the recorded facts and he acted in accordance with that advice. In March 1992 he was required to make a statement in relation to the matter as was Constable Caldwell. They nominated the vehicle they used by its police serial number at that time. It was an unmarked vehicle but the radar speed detecting device was one which was removed at the end of every shift. In due course as was police practice he consulted with a Police Prosecutor about the charges that should go forward, and abided by the prosecutor's decision. He was cross-examined at length in the hearing before Judge Vincent and in the hearing before me and the plaintiff's version of events was put to him strongly and firmly and where that version was inconsistent with his version he denied it. The defendant Senior Constable Christopher David Caldwell gave evidence before Judge Vincent and before me and his account corroborated the account of his fellow officer. He was closely cross-examined and the defendants case put forcefully to him and he [rejected] that case in his testimony. Sergeant Graeme Robert Scotcha was called and gave evidence before me. He was the officer who was called from Taree Police station to go to the scene of the incidents out of which this litigation arise. His only ultimate relevance from the plaintiff's and the defendants' point of view was that in Sutherland Local Court when giving evidence in August 1992 he had expressed the view that the car in which the defendant was patrolling was a marked police car although he did not know the make or model. This view was based upon his recollection that at that time there were only marked Highway Patrol cars at Taree. That recollection I am satisfied was incorrect and Sergeant Scotcha recanted it before me and when challenged as a person who was giving answers so as not to be in conflict with his fellow officers he replied in a fashion which confirmed my overall impression of him that he is an honest witness who was honestly mistaken when he gave the particular answers in Sutherland Court in August 1992. Between the plaintiff's and 1st and 2nd defendants' accounts of the occurrences on the relevant night there is no grey area. The plaintiff's attack on the 1st and 2nd defendants' credibility is centred around the postulation that he was not stopped for speeding in a built up area but stopped because of his having a radar detector and that the scene which unfolded after he was stopped was as he described it and that even if his arrest was justified in the circumstances, which he disputes, that arrest was performed with unnecessary and in effect brutal force causing the fracture of his arm without advising him of the reasons at the time. He asserts that in furtherance of the malice displayed towards him the 1st and 2nd defendants and others have conspired since shortly after his arrest to nominate an unmarked police vehicle as the one in which they were patrolling and to destroy or asport vehicle use diaries that would have proved that the vehicle in which they were patrolling was in fact marked and by implication to suborning Sergeant Scotcha to change his recollection given in Sutherland Court during the hearing before the magistrate. I have considered all this at great length and I firmly reject this account as untrue. I am of the view that where the evidence of the plaintiff conflicts with the evidence of the defendants as to events on the evening in question the evidence of the plaintiff is false and the evidence of the police is true. This impression is overwhelming. Counsel for the defence in a spirited defence declared his purpose as to unmask the plaintiff as a person in whom the court could place no credence whatsoever. Counsel has achieved that effect. The psychiatric evidence that I have heard from Doctor Lee who was the plaintiff's treating psychiatrist in Canberra prior to the events in question convinces me that at the relevant time the plaintiff was a diagnosed psychopath with paranoid features focused towards Police in general. At the very time that the events occurred he was fighting for a disability pension based upon his assertion that he suffers uncontrollable rages that would preclude his employment because a direction to that which he did not want to do would pitch him into such a state. He was supported by social security prior to, at the time of and subsequent to the events which give rise to this cause of action. He was nonetheless able to maintain a very heavy addiction to cannabis which he admits to being twenty cigarettes per day. His explanation to Doctor Lee was that he supported the habit by growing his own. On the evening of his arrest he lied to the police about his radar detector, he lied to the court when he asserted that at the time he was uncertain that they were illegal in New South Wales. He was on the clearest notice of that illegality from a pending prosecution for the offence at the time. His insistence on seeing the recorded speed on the Police detector is entirely inconsistent with his own version of events because it would have been irrelevant as on his version it was recorded outside of the 60 kph area. His presentation to the court as to his level of claimed back disability I am convinced is a gross exaggeration to seek to mulct the defendants in damages. In the course of the evidence in this court he twice referred to the incident of his arm fracture as an accident. A Freudian slip to say the least. Other lay witnesses were called to support the plaintiff's claim as to damages and his credibility. Having seen and heard those witnesses I am firmly of the mind that their calling failed to achieve that object. His common law spouse was one such witness. She was happily there to support his claim in the most obviously biased fashion despite the fact that she more than anyone is aware of the plaintiff's violent and irrational nature. Her motive revealed in cross-examination is of course founded in the hope of monetary gain. I do not intend to pass judgment in what I regard as red herring issues in the trial, such as the source of the cash carried by the plaintiff and the purposes of his carrying it on the evening in question other than to say my disbelief of the plaintiff and his lay witnesses is so profound that I am not persuaded by the explanations offered. The above findings have clear consequences. I am satisfied that the plaintiff's arrest was lawfully executed and fully justified in the circumstances using no more force than was necessary given the aggressive and agitated state that the plaintiff was in as described by the first and second defendants. The cause of action based upon assault and battery accordingly fails. The injuries sustained by the plaintiff in my judgment [were] caused by his violent and irrational reaction to the process of placing him under handcuffed arrest which in my view of the evidence was completely justified in the circumstances. I am quite satisfied that the actions of the plaintiff at the side of the police vehicle as described by the 1st and 2nd defendant was an intended course of conduct to resist an arrest which was perfectly justified in the circumstances. Being of the above mind it follows that to the extent that the plaintiff asserts malice and absence of reasonable and probable cause in respect of the commencement and prosecution for charges of resist arrest of which he was acquitted. Those causes of action fail and I enter verdicts for the defendants. I am completely satisfied that the Police radar speed calculation demonstrated to the Constables as the speed of the plaintiff's vehicle in the limited area of Cundletown was in fact demonstrated and in fact remained to be inspected by the plaintiff after he had been brought to a halt. The plaintiff has failed to demonstrate that prosecution for that offence was commenced and or maintained maliciously and without reasonable and probable cause and the causes of action based upon that assertion accordingly fail. I am quite satisfied on the evidence that the plaintiff in confronting the 1st and 2nd defendants holding the closed lock-blade knife in his hand so displayed it to them as to cause them to reasonably interpret that display as an offensive use of the implement. It accordingly follows that the plaintiff has failed to demonstrate that in prosecuting and maintaining the prosecution of the charge relating to the implement, the 1st and 2nd defendants acted maliciously and without reasonable and probable cause. I hardly need add that the 1st and 2nd defendant were dealing with this plaintiff for the first time and had no prior knowledge of his violent and irrational dispositions so clearly established in the evidence in this case." 7 Of the pocket knife attached to the set of keys, the trial judge said earlier (Red 18.7): "The knife is Exhibit A in the proceedings and I note that whilst it is a pocket knife it is of a lock-blade variety which gives it certain advantages if one uses it vigorously." It was described as an "eight centimetre silver noose lock blade knife" (Black 6/1178 line 55). The "nunchakus", according to the plaintiff, had been made up by him for use in martial arts routines (Red 18.4). They are weapons which the plaintiff's counsel described as Japanese fighting sticks, being two lengths of black wood joined by a piece of chain. Grounds 1 and 3 8 These grounds are as follows: "1. His Honour erred in finding that rejection of the Appellant as a witness of truth had the clear consequence that the arrest of the Appellant by the First and Second Respondents was lawfully executed and fully justified in the circumstances and used no more force than was necessary. 3. His Honour erred in failing to consider the submission put to him that rejection of the Appellant's evidence and acceptance of the evidence of the First and Second Respondents would still result in a verdict for the Appellant on the causes of action in assault and wrongful arrest." 9 These grounds are directed at the trial judge's conclusion (Red 37.8-38.2): "the plaintiff's arrest was lawfully executed and fully justified in the circumstances using no more force than was necessary given the aggressive and agitated state that the plaintiff was in as described by the first and second defendants … The injuries sustained by the plaintiff in my judgment [were] caused by his violent and irrational reaction to the process of placing him under handcuffed arrest which in my view of the evidence was completely justified in the circumstances. I am quite satisfied that the actions of the plaintiff at the side of the police vehicle as described by the 1st and 2nd defendant was an intended course of conduct to resist an arrest which was perfectly justified in the circumstances." The plaintiff submitted that the conclusion that no more force had been used than was necessary was an inference or a conclusion of mixed fact and law which an appellate court was completely at liberty to reverse. It is true that no restriction of the type discussed in Abalos v Australian Postal Commission (1990) 171 CLR 167 applies in relation to that conclusion. 10 The plaintiff's submissions on these grounds commenced with the contention that the corresponding submissions had been made to the trial judge but had been ignored. They continued with a detailed examination of the police officers' evidence. However, essentially two arguments were put. The first was that the initial arrest of the plaintiff was unlawful; hence the physical acts of the police officers in holding him were batteries. The second was that even if the arrest of the plaintiff could have been lawfully effected, the manner in which he was arrested and the manner in which he was treated while under arrest involved an excessive use of force entitling the plaintiff to use reasonable force to resist it, and the injury he suffered was caused by the unlawful conduct of the police officers. 11 The arrest was effected just after the plaintiff threw his keys into an adjoining paddock and yelled "You cannot search my car". After analysing the evidence up to that point, the plaintiff's Written Submissions proceed as follows (paragraphs 2.11-2.14 and 2.16): "2.11 There was no further discussion between the Police and the Appellant about retrieving keys, or unlocking the vehicle, and Boyd said to the Appellant 'you are now under arrest for possessing a prohibited weapon': Black AB 459.16-22. No other offence (such as failure to surrender a radar detector, possession of an offensive implement or hindering the police in their duty) was mentioned at that time: Black AB 458.54-459.14. There was also no discussion about whether the Appellant would come quietly, even though up to this point the Appellant had given no indication, verbally or otherwise, that he would not be prepared to accompany the Police back to the station to deal with the matters of concern: Black AB 1274.16-25. The demeanour of the Appellant at that time was nervous and agitated, and a little bit shaky, but he was not shouting, swearing, or making any kind of threatening motion towards the Police: Black AB 457.30-43. The nunchakus were in the possession of the Police, and the knife was somewhere in the paddock with the keys. However, the Police gained the impression that there was something in the car that the Appellant did not want them to see (which was true - the Appellant had $11,000 in cash that he had won on the Melbourne Cup in the boot of his car, and was concerned about its safety): Black AB 457.45. 2.12 Having told the Appellant that he was under arrest, Boyd took hold of the Appellant's right arm just above the wrist with his right hand: Black AB 459.35-46. The only response of the Appellant was to pull his arm back: Black AB 460.112-28. When the Appellant pushed his arm back, Boyd immediately set about putting a wristlock on him without further word to the Appellant. This involved putting the left hand on the Appellant's elbow, then putting his right hand on the Appellant's wrist and pushing it downwards: Black AB 460.34-40. The object of this hold is to apply pain: Black AB 463.45-38. The Appellant tried for a few seconds to 'shake off' the wristlock: Black AB 460.53-54. Around the same time, Caldwell took hold of the Appellant's left wrist and possibly elbow: Black AB 414.10-18. While this was happening, the Appellant asked 'what am I being arrested for?', and Boyd said 'I have already told you, for possessing the nunchakus': Black AB 1161.16-20. Boyd then decided to put an arm lock on the Appellant in order to 'control' him: Black AB 460.56, 1161.23. There was considerable evidence about the nature of the arm lock and whether differing demonstrations of it were done at different times in an effort to mislead the Court as to its nature, but the final and most precise description is that set out at Black AB 461. It resulted in the Appellant's arm being behind his back and 'past the horizontal going towards 45 degrees': Black AB 462.13-18. Once again, the object of this procedure is to apply pain. Caldwell was at the same time attempting to get the Appellant's left arm up behind his back as well: Black AB 414.21-25. 2.13 While the Police were attempting these manoeuvres, the Appellant was attempting to straighten his arm: Black AB 460.58-461.1. Boyd clearly understood this was to reduce the pain: Black AB 1240.39-50. There was no suggestion that the Appellant was shouting or swearing while this was happening. Neither was he attempting to kick or make any other violent action. In fact, although the Police evidence was that the Appellant was "struggling violently', when questioned in detail this amounted only to the Appellant moving his upper body and not his feet, except 'shuffling' possibly: Black AB 414.41-53. During the 'struggle', the distance between the Appellant and the Police vehicle did not vary at all, although the officers disagreed on how far that was: Black AB 415.28-39, 470.45-53. Boyd thought that the distance was a metre, even though the Appellant had been examining the radar display immediately before the interaction began: Black AB 487.56-59. In any event, if the evidence is true that the Appellant hardly moved his feet, and the distance between him and the Police vehicle (whatever it was) did not vary, it is completely inconsistent with a 'violent struggle'. Note that it was put to the Police officers that they had in fact pushed the Appellant up against the car, this being the obvious way to apply leverage to the arm lock, but this was denied: Black AB 469.43-470.10. 2.14 After some short period, Boyd had the hold applied so the Appellant could not go forward, backwards or sideways and he was 'pretty well contained': Black AB 463.10-19. Boyd then told Caldwell that he intended to handcuff the Appellant, and reached around behind his back and removed the handcuffs from the pouch with his right hand: Black AB 462.35-39. The Appellant then said 'you are not putting them on me', and then 'dropped his weight' and lurched 'forward and down': Black AB 416.38, 462.42-43. Even though he fell 'forward and down', there was no contact between the Appellant and the Police vehicle when this happened: Black AB 496.3-6. It was this self-inflicted action that the Police said led to the Appellant's arm being broken, not any application of excessive force by them. Following the injury, no first aid was rendered by the Police: Black AB 1262.14-26. 2.16 On that evidence, it was submitted to his Honour in summary that: (a) the central intention of the Respondents was to locate the radar detector and take possession of it, and the possession of the knife and the nunchakus was of no real consequence in determining the sequence of events; (b) the Respondents had no clear idea about the extent or source of their power to search the vehicle for a radar detector, and Caldwell may even have believed at the time of the incident that he did not have the power; (c) in fact the Respondents did not have the power to search the vehicle for a radar detector, or for prohibited weapons, in the circumstances then prevailing; (d) the Appellant was entitled to refuse permission for the Police to search his car, and in that context, throwing the keys into the paddock, even though it may have been an objectively silly action, and irritating to the Police, was not conduct of any criminality justifying arrest; (e) the power to arrest came, if at all, from s.352 of the Crimes Act and from the common law. An arrest will be wrongful if not authorised by law. Section 352(2) of the Crimes Act does not authorise arrests if they are not made in good faith for the purposes contemplated by the relevant enactment relied upon. A Police officer does not act in pursuance of a statute or carry a statute into effect if there is an absence of a bona fide intention of discharging his duty under the statute or if his acts are done only in pretended execution of the statute: Drymalik v Feldman (1966) SASR 227 at 231; Pirani & Diggins v Hardy , SCNSW, 9.9.94, unreported, per Smart J. The arrest immediately after the Appellant threw his keys in the paddock, allegedly for possession of nunchakus, was not effected for that reason, but for an unauthorised collateral purpose, namely to detain the Appellant so that a search of his car for the radar detector (and anything else of interest that might turn up) could be carried out, and was unlawful; (f) the restraint then applied to the Appellant was therefore itself not authorised, and amounted to assault and battery, and the Appellant was entitled to use reasonable force to resist it, especially as the Police were deliberately attempting to inflict pain on him when the occasion for so doing had not arisen: see also McLiney v Minster [1911] VLR 347 (FC); (g) furthermore, not every resistance of a lawful arrest will necessarily be unlawful. The circumstance of an arrest made lawfully may be such that the person being arrested genuinely and reasonably believes in the need for forcible resistance, such as where the Police use excessive force. In such a case the forcible resistance (if not excessive) is not unlawful: R v Thomas (1993) 65 A Crim R 269 (CCA NSW). In this case, it is clear that the question of whether any force at all was required to get the Plaintiff to accompany the Police to the station was never explored, even on the Police version. If the fact was that he was prepared to accompany the Police, then the process of putting him [in] an arm lock was totally unnecessary. It is absurd to suggest that any person conveyed to the Police Station in a Police vehicle has to [be] handcuffed for safety reasons. Even if the arrest had been otherwise valid, the immediate action of the Police to apply restraint and pain to the Appellant was excessive in the circumstances and the Appellant was entitled to use reasonable force to resist it; (h) the subsequently dismissed charges of hindering Police officers in their duty, and possession of an offensive implement (the knife attached to the key ring), were unsubstantiated and evidence of malice in an attempt to lend authority to their dealings with the Appellant." Was There a Power to Arrest? 12 The heart of the plaintiff's submission is paragraph 2.16(e). It states the effect of the authorities correctly. 13 Section 352 provides: "(1) Any constable or other person may without warrant apprehend, (a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act, (b) any person who has committed a serious indictable offence for which the person has not been tried, and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law. (2) Any constable may without warrant apprehend, (a) any person whom the constable, with reasonable cause, suspects of having committed any such offence, (b) any person lying, or loitering, in any highway, yard, or other place during the night, whom the constable, with reasonable cause, suspects of being about to commit any serious indictable offence, and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law." The possession of nunchakus was an offence punishable after trial on indictment or on summary conviction under the Prohibited Weapons Act 1989 s 5. The plaintiff was later charged with that offence and pleaded guilty to it. 14 Did the police officers lack any bona fide intention of discharging their duty under s 352(2)? Were their acts done only in pretended execution of it? Did they effect the arrest for the purpose only of searching for the radar detector? The plaintiff submitted that these questions should be answered affirmatively. The trial judge made no positive finding favourable to the plaintiff on these questions. In particular, he made no finding that the police officers' purpose was to detain the plaintiff so that the car could be searched. Nor did he make any finding to the contrary, and the plaintiff argued that this revealed a failure to grapple with the essential issue. 15 However that may be, the plaintiff's submission is rejected for six reasons. 16 First, the trial judge did make findings, which, indirectly, are unfavourable to the plaintiff on these questions. (a) He found that Constable Boyd told the plaintiff: "You are now under arrest for a prohibited weapon". That suggests that the state of mind accompanying that statement was an intention to arrest on the stated ground (Red 29.9). The trial judge's finding that "the evidence of the police is true" (Red 35.9) entails an acceptance of the sincerity of that statement. (b) A little later the plaintiff said: "What am I being arrested for?" and Constable Boyd said: "I have already told you, for possession of the nunchakus" (Red 30.8). That too suggests that Constable Boyd's intention was to arrest for possession of the nunchakus. Again, the finding that "the evidence of the police is true" entails an acceptance of the sincerity of what Constable Boyd said. 17 Secondly, the plaintiff's submission pointed to the evidence of police interest in the radar detector, and they unquestionably were looking for it. But Constable Boyd believed he had power to search the vehicle for the radar detector because a prohibited weapon (the nunchakus) had already been found in it, and he told the plaintiff that (Red 29.2.4; Blue 1/16.4.9; 2/8, 13 and 20; Black 6/1156 lines 25-45, 1211 lines 11-14, 25-28 and 39-59, 1214 lines 14-21, 1220 lines 13-19, 1221 lines 21-52; Black 2/451 line 41-452 line 21; cf 1220 line 43-1221 line 1). If he had that belief, which he must be taken to have had in view of the trial judge's acceptance of his evidence, there would have been no point in his effecting an arrest in order to give him a power which he already believed he had. (Whether, as the plaintiff submitted, that belief was wrong, is immaterial.) 18 Thirdly, just before informing the plaintiff that he was under arrest, Constable Boyd said to the plaintiff: "I am now going to search your vehicle for any other prohibited weapons" (Red 29.8; Blue 2/8, 13, 16 and 21). There is no reason to doubt that that was a sincere expression both of his intentions and of his belief that he had a right to carry out the search. If that was his mental state, there was no room for the collateral purpose, in effecting the arrest, of giving himself a power to search which he did not otherwise believe he had. 19 Fourthly, the endeavour of the cross-examiner appeared to be directed not towards establishing a desire to search the car as a purpose of the arrest, but more towards establishing that the arrest was unnecessary because the plaintiff was not out of control or unduly threatening and because some means of calming him down by persuasion should have been tried (Black 6/1223 line 41-1226 line 20). Even if the propositions advanced to Constable Boyd were sound, they would not have made the arrest unlawful if it were otherwise lawful (as counsel for the plaintiff conceded before this Court: transcript page 13 lines 1-6). 20 Fifthly, the plaintiff pointed to no evidence of any admission by the police officers favourable to his argument. Were there any such admissions, the trial judge's acceptance of the police evidence as true would be powerful support for the plaintiff's argument. The absence of any admissions of a collateral purpose creates a major obstacle to the success of the plaintiff's argument that the making of the arrest was unlawful. 21 Sixthly, one reason why there were no admissions was that counsel for the plaintiff, though he approached the question of the alleged collateral purpose of the police officers, did not directly put it. As he frankly conceded, he did not put the collateral purpose alleged "as clearly as I might" (transcript page 55 line 7). Members of the court asked to be referred to any passages where this had been done. In Constable Boyd's evidence, the following was referred to (Black 7/1275 line 35-1277 line 45): "Q. … until you placed your hand on his arm there was no reason for you to think, I suggest, that he would not comply with … a direction to get in the police vehicle and accompany you back to the station? A. No. Q. You see, what I suggest to you, Constable, is what Mr Woodley resisted was the fact that you were applying force to him, that's what he resisted, isn't that the case? A. No. Q. And that you had no reason until you applied force to him to believe that he would not, if told he was under arrest, accept that and go with you to the station? A. No, I don't agree with that statement. Q. But it's the case, isn't it, that neither you or Constable Caldwell asked him - I withdraw that. After you said you were under arrest, and I appreciate you say you also indicated a charge at that point, after that point neither you nor Constable Caldwell asked the plaintiff to get into the police vehicle for the purposes of accompany[ing] you to the station before you took hold of him, is that right? A. That's correct. Q. And at no point up until the time you indicated that he was under arrest or, sorry, up until the time you took hold of him did he attempt to flee from the scene? A. That's correct. Q. Indeed, at the point when you took hold of him his keys were, of course, in the paddock, that's correct, isn't it? A. That's correct. Q. So that if he had attempted to flee from the scene it would have been on foot? A. That's correct. Q. You saw nothing, did you, that indicated to you that he might be about to do that? A. No, I disagree with that statement. Q. Well, you've told us what you saw, I'll leave it at that. See, I'm suggesting to you that you've told us a number of times now that you were concerned about losing control, you agree with that? A. Yes. SAIDI: I don't think so, your Honour, I think his concern was about the situation getting out of control. HIS HONOUR: I think that's how it was expressed, Mr Grey. [He] was concerned the matter was getting out of control. SAIDI: The situation getting out of control. WITNESS: That's correct. GREY: Q. See you've questioned many motorists over years, haven't you? A. Yes. Q. And I take it on a number of occasions you've asked them to allow you to search their motor vehicle, have you? A. Yes. Q. You're used to citizens simply complying with requests that you make of them, aren't you? A. The reactions vary. Q. But you see, 99 people out of 100 faced with a man in blue like yourself asserting a power to do something will not argue, do you agree with that? A. I'd agree with that. Q. Indeed, your confidence in that in your dealings with the public is such that you have some difficulty attributing your powers to any particular legislation, don't you, because you've never been put in the position where you have to justify yourself? A. I'd like to hear the question again. Q. What I'm saying is, if it were common that members of the public questioned your power to search a vehicle then over a period of service in the Police Force as long as yours, Constable, you would have been very clear, you would have made yourself very clear in your own mind about what specific powers you had and when they were properly exercisable, wouldn't you? A. Most people enquire basically whether we have the power or not. I've had very, very few people ask me to quote the section in an act of any power that I say that I have. Q. And when people ask you, you assert that you have the power and as I say 99 people out of 100 will simply accept your statement won't they? A. Correct. Q. And every so often somebody comes along who says, I'm not satisfied with your statement. I want you to show me or I want to get some advice. Every so often someone like that comes along, isn't that right? A. As I've already stated very rarely yes. Q. See the difficulty I suggest you had on this night was you were actually not sure about what your powers were? A. No that's incorrect. Q. And that you find it very irritating when you knew that there was, in your own mind you knew there was a radar detector in this car that this man didn't want you to search his car until he took some advice about whether you were entitled to? A. No sir, that's incorrect. Q. And that it annoyed you a great deal that he was not accepting your authority? A. No sir, that's incorrect. Q. And that when he locked the car up and threw the keys over the paddock you became quite angry indeed that your intention to search the car was being thwarted? A. No sir. Q. I put to you that when you told him he was under arrest he actually went to get in the police car and go with you? A. No sir that did not happen. Q. And you regarded his behaviour as you losing control of the situation and that really annoyed you didn't it? A. No sir. Q. And so you took it out on him I suggest? A. That's incorrect sir." 22 In Constable Caldwell's evidence the following was referred to (Black 7/1357 line 11-1358 line 37): "Q. I appreciate you say he said also something else. But in terms of the first statement about being under arrest, it was made after the keys were thrown into the paddock? A. Yes. Q. And what I suggest to you about what Constable Boyd said was at that time that there was no mention at that point of any charge that would justify the arrest? A. Yes there was. Q. And you say the charge was possession -- A. – of prohibited weapon. Q. Was it then just coincidental that that statement was made at the moment that Mr Woodley - or immediately after Mr Woodley threw his keys into the paddock? A. Could you just repeat that? Q. Do you agree with this proposition that the statement 'You are under arrest' together you say with words about possession of a prohibited weapon were made immediately after Mr Woodley threw his keys in the paddock? A. Very soon after, yes. Q. There was no other discussion that took place -- A. No. Q. – between the throwing of the keys and the making of the statement that he was under arrest? A. No, no. Q. Is it just coincidental that statement was made at that time and not earlier when the nunchakus were found? OBJECTION. NOT EVIDENCE OF WITNESS. QUESTION REJECTED. Q. Can I suggest to you that you and Constable Boyd were annoyed with the plaintiff at this point because he had prevented you from searching the car and that's why you wanted to arrest him? A. Not entirely, no." 23 That last answer was not clarified, and the matter was not taken further. 24 In the absence of any direct evidence favourable to the plaintiff's contention that the police officers had a collateral purpose, it must rest on inferences from circumstantial evidence. The circumstances, when taken with the findings and evidence referred to above, do not permit the necessary inferences to be drawn. 25 In my opinion the plaintiff has not demonstrated that the trial judge erred in not holding the original arrest to be unlawful. 26 There is one submission of the plaintiff which was directed both to the question just discussed and the question about to be discussed. It is convenient to indicate its irrelevance to both of them at this point. The plaintiff submitted that the issue of whether the police actually had power to search the car without effecting an arrest was relevant in two ways. First, if the police lacked power to search the car without effecting an arrest, it was submitted that that supported the plaintiff's argument that the arrest was for the collateral purpose of giving them a power to search it. Secondly, if the police lacked a power of search, "then very little criticism can be directed at the appellant for the way he behaved" (transcript page 10 line 30-31). The first way of putting the matter is irrelevant, because the moving party in the decision to arrest was Constable Boyd, and while a belief that there was no power of search without arrest would assist the plaintiff, Constable Boyd repeatedly and consistently averred his belief that he did have a power of search without arrest. In either event the actual legal position does not matter. The second way of putting the matter is irrelevant, because what matters in judging how the plaintiff behaved at each particular stage is whether the police conduct in arresting him, and then in applying increasing amounts of force, was lawful. The legality of the use of force rests on criteria quite distinct from the legality of the search. Excessive Force in the Course of the Arrest: General 27 The plaintiff's argument had a second limb: "Even if the arrest had been otherwise valid, the immediate action of the Police to apply restraint and pain to the Appellant was excessive in the circumstances and the Appellant was entitled to use reasonable force to resist it (paragraph 2.16(g)). As the matter developed in oral argument, it became apparent that there were several stages at which the legitimacy of the police use of force would have to be evaluated. 28 The first stage was the moment when, as the trial judge found, Constable Boyd said: "You are now under arrest for a prohibited weapon" and "took hold of the plaintiff's right arm around the wrist area to control the situation which was the plaintiff's agitated state. He did not wish to give the plaintiff any chance of assaulting Senior Constable Caldwell or himself and he did not wish Mr Woodley to walk away from the situation" (Red 29.9-30.1). 29 The second stage was when, shortly after a struggle began in which the plaintiff began to pull his arm away from Constable Boyd's and "a cross … between a tug of war and an arm wrestle" commenced (Black 6/1157 lines 48-58), Constable Boyd placed a wrist lock on the plaintiff. 30 The third stage was when, after the struggle continued, Constable Boyd applied the arm lock to the plaintiff. 31 The fourth stage arose when Constable Boyd said he was going to handcuff the plaintiff. 32 The firth stage concerns events from the time when the decision to handcuff the plaintiff was announced until the time when the plaintiff's arm broke. 33 Before considering the law and the evidence that is relevant to each stage, some preliminary matters can be noted. 34 The first is that at the time of the events in issue, the plaintiff was aged 35 (Blue 1/82), he was "very well musculatured" (Blue 1/1), "very strongly built" (Blue 1/4), and "of average/tall height and of strong build" (Blue 1/5). Constable Boyd perceived him to be "a very strong man" (Blue 1/11) and said: "Mr Woodley was, on that particular evening, was a strong man" (Black 6/1162 lines 8-9). Constable Boyd was 6 feet 3 inches tall and in 1998 weighed over 100 kilos. There is no evidence of Constable Caldwell's build. 35 The second matter relates to questions of time. The period which elapsed from when the cars stopped to the moment of arrest cannot have been long and appears to have been less than four minutes. At the hearing of the appeal counsel for the plaintiff estimated that the period that elapsed from the time when the cars stopped to the time when the plaintiff broke his arm was "five minutes, or possibly less" (transcript page 2 lines 21-22). There is evidence that the time which elapsed between the arrest and the breaking of the plaintiff's arm did not exceed sixty seconds (Blue 1/11.5). The "events happened very quickly" (Black 2/387 line 25). Another estimate was that the time from the cars stopping to the arrest "may have been up to five minutes" (Black 2/458 lines 39-40). 36 Thirdly, though the trial judge's findings on what happened are clear, it is convenient, as counsel did on appeal, to go to the detail of the evidence underlying them. It is convenient to analyse events in the first period of four minutes or so up to the arrest and the later one minute period by reference to the trial judge's findings, and then the contemporary or near contemporary police records, the police evidence to the magistrate on 27-28 August 1992, the police evidence at the first trial and the police evidence at the second trial. In conducting that analysis, the plaintiff submitted that one ought to ignore generalised words of characterisation used by the police officers and picked up by the trial judge, and rather concentrate on the detailed primary facts the police officers described, so far as they did describe detailed primary facts. It was said that "it becomes important … to move from the terms which process the information - words like 'violent' and 'irrational' are processing words - to what the actual evidence was from the police about what the appellant did" (transcript page 10 lines 49-52). It was said that "it is important to get past the adjectival descriptions to exactly what happened" (transcript page 11 lines 37-39). While the plaintiff is certainly correct that attention must be paid to the specific detailed observations of the police officers, I do not think the generalised words they also used should be ignored. They record impressions which the plaintiff's conduct caused to be imprinted on their minds. In assessing how a reasonable police officer would have behaved in the circumstances in which they found themselves, their characterisations of the plaintiff's conduct have significance. Those parts of their evidence in which they used general words of characterisation were both admissible and weighty. The impressions recorded were based in some measure on facts which were likely to have been too evanescent and complicated in their nature to be noticed, recollected and separately and distinctly related to the court. In the words of the 17th Report of the English Law Reform Committee: "Unless opinions, estimates and inferences which men in their daily lives reach without conscious ratiocination as a result of what they have perceived with their physical senses were treated in the law of evidence as if they were mere statements of fact, witnesses would find themselves unable to communicate to the judge an accurate impression of the events they were seeking to describe" (paragraph 3). J H Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (Boston, Little Brown & Co, 3rd ed, 1940), volume 7, para 1918, p 12, quoted Gibson J in Cornell v Green 10 S & R 16 (1823) to the following effect: "… every man must judge of external objects according to the impressions they make on his senses; and after all, when we come to speak of the most simple fact which we have witnessed, we are necessarily guided by our impressions. There are cases where a single impression is made by induction from a number of others, as, where we judge whether a man is actuated by passion, we are determined by the expression of his countenance, the tone of his voice, his gestures, and a variety of other matters; yet a witness speaking of such a subject of inquiry would be permitted directly to say whether the man was angry or not …". At p 13 he quoted Foster CJ in Hardy v Merrill 56 NH 241 (1875): "… In the investigation of mental and psychological conditions, - because it is impossible to convey to the mind of another any adequate conception of the truth by a recital of visible and tangible appearances, - because you cannot, from the nature of the case, describe emotions, sentiments, and affections, which are really too plain to admit of concealment, but, at the same time, incapable of description, - the opinion of the observer is admissible from the necessity of the case; and witnesses are permitted to say of a person, 'He seemed to be frightened'; 'he was greatly excited'; 'he was much confused'; 'he was agitated'; 'he was pleased'; 'he was angry'." The opinions of Gibson J and Foster J, approved as they were by Wigmore, are directly relevant to the observations made by the police officers of the plaintiff's mental state. 37 According to some writers, at common law, which applies in New South Wales, a person effecting an arrest may use whatever force is "reasonable" in the circumstances (Archbold: Criminal Pleading Evidence and Practice 2000 para 19-39) or "reasonably necessary" (Wiltshire v Barrett [1966] 1 QB 312 at 326 and 331). "Thus if the arrestee offered resistance, the arrestor could increase his force in proportion to the force of that resistance": R W Harding, The Law of Arrest in Australia (eds Duncan Chappell and Paul Wilson) The Australian Criminal Justice System (2nd ed, Butterworths, 1977) p 254. A more elaborate test has been propounded in the context of whether the killing of a felon in the course of committing a felony is a justifiable homicide, or manslaughter, or murder. It was put thus by the Full Court in R v Turner [1962] VR 30 at 36: "When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (i.e. the commission of a felony or the escape of the felon)." It may perhaps be questioned whether the tests stated apply where the arresting party causes injury to the arrested party, as distinct from death. However, for present purposes it is convenient to assume, as counsel for both the plaintiff and the defendants did, that R v Turner states the law in that context as well. In evaluating what is reasonable, necessary or reasonably necessary the duties of police officers must be remembered. In Lindley v Rutter [1981] QB 128 at 134 Donaldson LJ said: "It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case." The same duties and considerations apply where a police officer is deciding how to effect an arrest. And, in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J said: "[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances." 38 Fifthly, the question of whether touching is necessary and lawful when effecting an arrest arose. If a police officer touches but does not arrest a suspect, the conduct will be unlawful if, for example, it was designed to effect a detention against the suspect's will (Ludlow v Burgess (1971) 75 Cr App R 227). But it will not be unlawful if the goal was to attract the suspect's attention: it may be an interference with the suspect's liberty, but it is a trivial one which does not take the officer out of the course of his duty (Donnelly v Jackman (1970) 54 Cr App R 229). It is possible to effect a lawful arrest without touching the arrested person: Grainger v Hill (1838) 5 Scott 561 at 575; Greenwood v Ryan (1846) 1 Legge 275; Warner v Riddiford (1858) 4 CB (NS) 180; Alderson v Booth [1969] 2 QB 216; Dellit v Small, ex p Dellit [1987] Qd R 303. Glanville Williams, "Requirements of a Valid Arrest" [1954] Crim LR 6 at 11 summarised the law as follows: "An imprisonment, or deprivation of liberty, is a necessary element in an arrest; but this does not mean that there need be an actual confinement or physical force. If the officer indicates an intention to make an arrest, as, for example, by touching of the suspect on the shoulder, or by showing him a warrant of arrest, or in any other way by making him understand that an arrest is intended, and if the suspect then submits to the direction of the officer, there is an arrest. The consequence is that an arrest may be made by mere words, provided that the other submits." The difficulty of the field is illustrated by the fact that Glanville Williams' example of "touching" is, while not "physical force", nonetheless technically a battery unless it is otherwise justifiable. It is also possible to effect an arrest without using words of arrest, though it is desirable to use them if possible ( R v Hoare [1965] NSWR 1167). The First Stage: Events Before the Arrest 39 The question is whether, when Constable Boyd took the plaintiff by the wrist, he committed the tort of battery rather than lawfully using force while effectuating an arrest he was entitled to make. In answering that question it is necessary to examine whether Constable Boyd's and Constable Caldwell's reactions were within the range of reactions of a reasonable police officer faced with the circumstances with which each of them was faced. Counsel for the plaintiff conceded that it was "undoubtedly open to conclude that [the plaintiff] became agitated and upset and possibly even in his manner appeared aggressive in the course of the interaction, that he was unwilling to agree to a search of his car and with the benefit of hindsight that he told at least one deliberate lie to the police, [but] at no time in the interaction preceding the injury did he attempt to strike the police, insult them, swear at them or decamp from the scene" (transcript page 2 lines 23-31). He submitted that all threats from either the knife or the nunchakus had ceased, and there was no reason to suppose that the plaintiff could not have been arrested by a simple polite command that he enter the police car and accompany the officers to the police station. 40 The events can be divided up as follows. 41 The first event was the formation by the police of the belief that the plaintiff had been driving at 96 kilometres per hour in a 60 kilometres per hour area, that belief being based on the microwave speed detector unit in his vehicle (Red 26.9-27.1; Blue 2/7, 13, 16, 19 and 26; Suppl Tab 31 para 4; Black 6/1149, 1206, 1211 lines 2-4; Black 7/1313 lines 36-56). 42 Secondly, that unit caused them to conclude that the plaintiff's car had been fitted with a radar detector device which was on, but which was turned off at the moment when the plaintiff's vehicle stopped after the police signalled to the plaintiff that he should do so (Red 27.7; Blue 2/7, 13, 16, 19 and 26; Suppl Tab 31 para 5; Black 6/1150-1151 line 22; Black 7/1313 line 56-1314 line 9, 1336 lines 53-55). 43 Thirdly, when the plaintiff was asked to produce the radar detector, the plaintiff said he did not have one (Red 28.3; Blue 2/7, 13, 16 and 20; Suppl Tab 31 para 7; Black 6/1152 lines 30-44; Black 7/1314 lines 38-53). The making of this statement was in substance admitted by the plaintiff: see Red 20.1. That statement was a lie, on the plaintiff's own later admission: he pleaded guilty to a charge that he did have a radar detector. A police search conducted later that evening located the radar detector (Black 6/1166 lines 54-1167 line 30; 1209 lines 55-57). 44 Fourthly, when the plaintiff produced his driving licence, which had expired, to the police officers, Constable Boyd observed that he was holding in his hands a set of keys with a pocket knife attached. He felt the plaintiff was threatening him with that knife, and he told the plaintiff to put it on the floor of the car (Red 28.5). It was an eight centimetre lock knife (Black 2/7, 13 and 16; see also 20 and 26; Suppl Tab 31 para 7; Black 6/1152 lines 44-55; 7/1265 line 55-1267 line 5). Constable Boyd said (Black 6/1173 lines 4-5): "I believe that he had threatened me or held it in a threatening manner, the implement, that is the knife" The following then appears (Black 6/1173 lines 6-18): "Q. When you say you believe that he had threatened or held it in a threatening manner would you be kind enough to explain to the members of the jury what it was that led you to that belief? A. It is the total the circumstances. The fact that Mr Woodley was agitated, that he was on edge, that he had, in my opinion, lied blatantly to police. He was holding the knife in such a position as to - in clear sort of view of me but at me and I was a very short distance from Mr Woodley at that time. I held the belief that he was in some way trying to intimidate me and that's why I asked him to put the keys on the floor of the vehicle." In cross-examination Constable Boyd said (Black 6/1215 lines 42-44): "A. Certainly. The keys he had in the palm of his hand with the knife coming through between the fingers and the thumb so as to project knife forward." Later he said (Black 6/1216 line 29-1217 line 26): "Q. Well he didn't ever make any move before you touched him, to strike you did he? A. That's correct. Q. And he didn't make any move to kick you? A. No. Q. Or to hit you with any object? A. That's correct. Q. And yet you tell us do you that you formed the view that he was for example in some way threatening to you in the way that he held the knife? A. Yes. Q. That's absurd isn't it constable? A. No sir. Q. Now just tell us how tall you are? A. Six three. Q. And what do you weigh? A. In excess of 100 kilos. Q. And you're telling us you felt threatened by the way this man held the knife attached to his car keys? A. It wasn't the car keys I was concerned with sir, it was the knife, Q. You could see from where you were that this was a folding pen knife? A. It's a large pocket knife sir. Q. It wasn't a flick knife to your observation was it? A. No that's correct. Q. It would have required another hand to move over and pull the blade out wouldn't it. It was obvious to you at that time? A. Well I don't know, I didn't know at that stage whether the - you can modify knives sir in all sorts of circumstances. Q. Well subsequently when you examined this knife it wasn't modified was it? A. No. Q. And right up until the time Mr Woodley was conveyed away in the ambulance he'd never tried to do anything threatening with it other than the thing that you've just described, the way he held the knife in his hand? A. That's correct. Q. And yet do you say that you had a belief in its offensive nature that justified in your view taking the matter to the stage of a charge being laid against him? A. Correct." 45 Constable Caldwell regarded the knife as "offensive", and as held in a way which "posed a potential threat"; it appeared that it could have been the plaintiff's intention to use it; he was "holding it in a threatening manner" (Black 7/1349 line 41-1350 line 26, 1351 lines 11-28). At the second trial Constable Boyd said (Black 2/446 lines 3-4): "He was holding the keys basically in the palm of his hand with the knife protruding through the fingers." He said, after the keys had been placed on the car floor: "what I perceived to be a threat or an intimidatory action by Mr Woodley had ceased" (Black 2/447 lines 56-57). The evidence continued (Black 2/448 lines 1-30): "Q. You say intimidatory action. He didn't push the knife or the keys towards you in a way that suggested he wanted to strike you, did he? A. No. Q. Just had them in his hand? A. Yes. Q. What is intimidatory about that? A. It is the total circumstances. Q. Well, we haven't got to the total circumstances. SAIDI: Your Honour, I am not sure the witness completed his answer. GREY: Q. Did you want to add something to the total circumstances? A. The circumstances are the fact that Mr Woodley was - appeared to be very agitated, that he had just blatantly lied to what I perceived to be a complete lie to us, he seemed very displeased to be in the position that he found himself in and that he was holding, as I said, the knife was out in front, I found it to be intimidatory if you like. I wasn't sure what - it's not something that I had struck that much before if you like. You can only treat the circumstances how you find them. The alarm bells as far as I was concerned were starting to ring and that is why I asked him to separate himself from the keys which he did." 46 Fifthly, Constable Caldwell then removed, and Constable Boyd saw him remove, the nunchakus from the car (Red 28.6; Blue 2/7, 13, 14, 20 and 26; Suppl Tab 31 para 7; Black 6/1152 line 56-1153 line 5 and 1155 lines 11-17; 7/1314 line 58-1315 line 3). 47 Sixthly, Constable Boyd perceived the plaintiff to be agitated and on edge, obviously not pleased to be in the position he found himself in. He thought he appeared to be very nervous (Red 28.8). Constable Boyd perceived the plaintiff to be "very agitated and on edge" according to his notebook (compiled at 5.15 am on 19 December 1991: Blue 2/7 and 13) and according to his statement of 21 March 1992 (Blue 2/220). So did Constable Caldwell (Suppl Tab 31 para 8). Constable Boyd perceived the plaintiff to be "very agitated" according to the report he made to his patrol commander on 19 December 1991 (Blue 2/16) and to the fact sheet he signed on 10 January 1992 (Blue 2/26). See also Black 6/1155 lines 19-31. Constable Caldwell "noticed that Mr Woodley was becoming agitated and on edge". He was asked: "Q. What led you to form that belief? A. Just by his manner. He was - appeared nervous" (Black 7/1315 lines 16-20). 48 Seventhly, the plaintiff was asked for a second time to produce the radar detector. For the second time, as the police officers would have perceived and as was the case, he lied in denying that he had one (Red 28.9; Blue 2/8, 13, 16 and 20; Suppl Tab 31 para 8; Black 6/1156 lines 1-5; 7/1315 lines 21-28). Constable Boyd "firmly believed that [the plaintiff] had a radar detector" (Black 6/1156 line 24). 49 Eighthly, the plaintiff asked whether the police had a warrant and Constable Boyd said: "No, I don't need one. I have already found a prohibited weapon in your car, this gives me the power to search your vehicle" (Red 29.2; Black 7/1315 lines 35-39). In cross-examination Constable Boyd gave the following evidence (Black 6/1215 lines 21-30): "Q. Now Mr Woodley you said seemed agitated and I think you said aggressive? Is that correct, about this point? A. At which point? Q. The point at which there was a discussion about whether he needed - whether you needed a warrant and you telling him, I don't need one? A. After that point it appeared to me that he became more agitated and yes it is my opinion that he adopted an aggressive manner about him." The word "him" appears to be a transcription error for "then". 50 Ninthly, after Constable Boyd had told the plaintiff that he had power to search the vehicle because he had found a prohibited weapon in it, the following events happened: "The plaintiff then slammed shut the bonnet of his vehicle and hurried around to the driver's side and reached in and grabbed the keys from the floor, closed and locked the driver's side door and placed the keys of the vehicle in his right rear trouser pocket, and in performing these actions he appeared to be agitated and becoming aggressive towards the Police" (Red 29.4-.5; Black 6/1156 line 46-1157 line 6 and 1219 line 35-1220 line 11). The police officers' evidence was that the plaintiff: (a) "slammed shut the bonnet" (Blue 2/20.9; Suppl Tab 31, para 8; Black 6/1156 line 48; 7/1315 lines 40-43; 2/452 line 57) in a "deliberate way" (Black 6/1157 line 3); (b) "rushed" or "hurried" or "walked in a quick manner" from the bonnet to the driver's door (Blue 2/8, 13, 20.9 and 26; Suppl Tab 31 para 8; Black 6/1156 line 49, 1157 line 4; 7/1315 line 44; 2/452 line 57-453 line 9); (c) "grabbed" his keys from the floor (Black 6/1156 line 50); and (d) "closed the door" in an aggressive way (Black 6/1157 lines 4-5). In these actions the plaintiff "became aggressive", "became more upset and aggressive", "appeared to become even more upset and became aggressive in his manner" (Blue 2/8, 13, 16, 21.1 and 26; Suppl Tab 31 para 9), "appeared to get more aggressive in his manner" (Black 7/1315 line 49), "was becoming very aggressive" (Black 7/1339 line 9; 2/332 line 59); "getting agitated [and aggressive]" (Black 2/333.2), "raising his voice" (Black 2/333.2) or "appeared to be more - more agitated, and he appeared to become aggressive towards the police" (Black 6/1156 lines 54-58). He was aggressive in the "manner in which he looked at us" (Black 2/333.5). He did so in "a threatening manner" and was "becoming very agitated" (Black 2/334 lines 16-45). In cross-examination Constable Boyd was asked (Black 6/1216 lines 14-28): "Q. Constable you must deal with many many people in your work as a highway patrolman where people feel they are being [un]justly accused of speeding or upset because they're going to get fined or because they're late for some appointment that they're going to be [late] for, where they demonstrate behaviour like that. Isn't that right? A. Motorists demonstrate all sorts of behaviour. Q. I mean there's nothing out of the ordinary given what Mr Woodley was being asked to do, in slamming the bonnet or walking quickly or the manner in which he closed the door was there? A. That doesn't take away from my belief that he was agitated and had started to become aggressive." 51 Tenthly, after Constable Boyd had complied with the plaintiff's request to show him his speed on the radar equipment, and Constable Boyd had said he was now going to search the car for any other prohibited weapon, the following happened. "The plaintiff then reached into his rear trouser pocket and turned and threw his keys into the paddock on the western side of the Pacific Highway. The plaintiff then turned back to Boyd and yelled 'You cannot search my car' in a very much raised tone of voice" (Red 29.8-.9; Blue 2/9, 13, 21 and 26; Black 6/1157 lines 20-28; 7/1316 lines 5-6). Constable Boyd said the plaintiff "yelled" that the police officers could not search his car (Blue 2/16; Black 6/1157 line 25; 2/443 line 25 and 455 line 7) in "a very much raised tone of voice" (Black 6/1157 line 27; "it probably wasn't as loud as he could possibly yell, but it was certainly a raised voice" (Black 2/458 lines 23-24); it was "loud" (Black 2/438 lines 41-42). Constable Boyd gave the following evidence in relation to the point of time when he told the plaintiff he was going to search the car (Black 2/456 line 39-458 line 11): "Q. … it is no surprise to you that people do not want you going through their vehicle if they don't have to allow you to? A. No. Q. No? A. But to be upset, to seem to be so upset and so sort of agitated was unusual. Q. Well, you say he was so upset and so agitated. At this stage, that is before the moment when he threw his keys away, just describe what you mean by agitated? A. Well, it's very hard to put it into words. Q. Please try? A. He was visibly upset in the fact that he was - he appeared to me to be that agitated that he was almost to the point of physically shaking. Q. So he wasn't actually shaking? He was almost at the point of shaking, you say? A. No. He wasn't uncontrollable - he wasn't shaking uncontrollably if that is -- Q. I gathered from what you were saying that in fact he wasn't shaking at all; is that right? A. Well, no. I don't think that is quite right either. Q. Shaking a little bit? A. Yes. Extremely nervous. It's very hard to put into words what you observe and what your impressions are. Now, if I said to you that I saw a person that was upset or was sad or was happy you can tell certain things just by their body language, by their physical sort of expression. It's very hard to relay that in just merely words, but it is an impression that you have at the time. Q. All right. So his body language and appearance conveyed to you that he was nervous? A. Yes. Q. He conveyed that he was agitated? A. Yes. Q. To the stage where perhaps he was a little bit shaky? A. Yes. Q. But he wasn't shouting at you at that stage, was he? A. At which stage are we up to now? Q. This is before he threw his keys in the paddock? A. No. He had raised his voice when he asked to see his speed on the radar detector, but he -- Q. Wasn't shouting? A. No. Q. And he wasn't swearing at you? A. No. Q. He wasn't making any threatening kind of motion towards you? A. No. Q. And to the extent that you gained this impression that there was something in the car he didn't want you to see? A. Yes. Q. As I put to you earlier, it is not at all unusual in your experience that people would be reluctant on many occasions to let you see things that they were entirely lawfully in possession of? A. Could I have that question again? Q. Well, what I am suggesting to you is that insofar as he conveyed the impression to you that there may have been something in the car he didn't want you to see, you would have been familiar with situations at that stage where people who had nothing in their possession that they were not lawfully entitled to have in their possession would also be nervous or reluctant about letting you look at things? A. The only thing I can say in relation to that is that people when you stop motorists on the side of [the] road, they react in all different sorts of ways. Q. Yes. So that this man reacted in a way that suggested he was nervous, agitated and didn't want you to search his car? A. Yes." 52 Eleventhly, the arrest then took place. According to the trial judge (Red 29.9-30.1): "Boyd said 'You are now under arrest for a prohibited weapon' and took hold of the plaintiff's right arm around the wrist area to control the situation which was the plaintiff's agitated state. He did not wish to give the plaintiff any chance of assaulting Senior Constable Caldwell or himself and he did not wish Mr Woodley to walk away from the situation" (Blue 2/9, 14; Black 7/1316 lines 9-10). In his report to his patrol commander on 19 December 1991, Constable Boyd said that he took hold of the plaintiff's right arm "because of his very aggitated [sic] and aggressive state" (Blue 2/16). The facts sheet which he signed on 10 January 1992 said the same (Blue 2/27). In his statement of 21 March 1992 Constable Boyd said he took hold of the plaintiff's right arm near the wrist "due to his aggressive manner" (Blue 2/21). At the first trial he said (Black 6/1157 lines 31-46): "Q. What happened then? A. I said to Mr Woodley 'You are now under arrest for possession of a prohibited weapon' and I took hold of the - I took hold of Mr Woodley's right arm. Q. Around what area? A. Around the wrist area. Q. And why did you take hold of his right arm at that point? A. To control the situation. Q. And what was the situation which you believed needed to be controlled? A. His agitated state. I didn't wish to give the person any chance of assault[ing] either Senior Constable Caldwell or myself, and equally I didn't wish the - Mr Woodley to be able to walk away from that situation." Constable Boyd was cross-examined as follows (Black 6/1223 line 9-1224 line 44): "Q. Why was it that you decided at that moment to arrest him for possession of nunchakus? A. To inform he was going to be arrested? Q. Yeah, at that moment, why did you do it at that point? A. Well, things were escalating out of control. I mean the act of throwing the keys away, he was becoming more and more agitated, I decided at that stage to place him under arrest. Q. He had now removed the keys and the knife from his possession? A. Yes. Q. And for all you know it was going to be a simple matter for Constable Caldwell to go and do what he subsequently did, that is, go into the paddock and retrieve the keys and the knife, open the car and have a look inside? A. You have an extremely agitated and aggressive man standing beside you, he has done something which I consider to be, to say the least, out of the normal -- Q. You say he was extremely agitated, again, we've heard some observations from you about his slamming the bonnet, the way in which he closed the door, the hurried walk -- A. Yes. Q. Was there anything else? A. He was almost to the point of - it's very hard to describe what - he was almost sort of to the point where he was physically shaken. You find that a person gets to the point where they're sort of - and I can only describe that as an extremely agitated state. Q. Did you think of saying to him, 'Are you all right, are you feeling all right, do you want to have a sit down there while we get the keys and have a look around?' Did you think of dealing with it another way? A. No. Q. You thought that the fact that he was shaking and agitated meant that was the time to arrest him? A. That was the time for me to try and control the situation. Q. Well, hang on Constable, you say control the situation. As I understand your evidence, all you've got is a man who's slammed a bonnet lid, closed the door in a particular way, walked hurriedly and was almost shaking with agitation. Why was the situation out of control? SAIDI: Your Honour, that's not correct. Plus a man who had thrown keys over into the paddock. HIS HONOUR: Yes. GREY: Q. The keys in the paddock was a matter where they were sitting there, someone could go and get them, wasn't it? A. Well, they were thrown from sight. I didn't know where they were. Q. Apart from the keys being in the paddock, the situation was as I just described it to you, wasn't it? It wasn't out of control is what I'm putting to you? HIS HONOUR: I don't think, with respect Mr Grey, he said it was out of control, he said it was getting out of control. GREY: Q. Well, it was not getting out of control, I'm suggesting to you Constable? A. It hadn't got out of control because I didn't let it get out of control. At some stage with dealing with [defendants] you have to make a judgment in relation to which way you want to deal with them. Q. Constable, at that stage you weren't dealing with [a] defendant, you were dealing with an ordinary citizen going about his business. What I'm saying to you is, there was nothing in that man's behaviour that was indicative of anything other than he was agitated. That's correct isn't it? A. I perceived a definite threat from the man in relation to his actions and what I observed his mood or behaviour to be. Q. At the time he'd thrown his keys away of course, he had removed from his possession the one offensive implement, apart from the nunchakus that you already had that was visible, hadn't he? A. That's correct. Q. He'd made no effort to strike you or kick you or run from the scene or anything of that sort, had he? A. No, but just because he hadn't done it at that stage doesn't mean that he's capable of doing it at any second." The sense of the answer is that for "capable" should be read "incapable". There was further cross-examination as follows (Black 6/1224 line 53-1226 line 23): "Q. The nunchakus had been removed by you or Constable Caldwell, that's right isn't it? A. By Senior Constable Caldwell, yes. Q. So I take it if there was some - I mean, those were in your possession at that time? A. They were in police possession, yes. Q. Mr Woodley had thrown away his keys to which was attached the knife that you had regarded as a threatening piece of hardware? A. Yes, that's correct. Q. At that point he was facing you with nothing in his hands, that's correct isn't it? A. That's correct. Q. And he wasn't making any move that suggested to you that he was going to hit you or strike you or kick you or anything of that sort? A. He made no threat towards me, no. Q. And all you saw was a man who was agitated, very severely agitated. A. Yes. Q. Do you think that he might have been agitated because he was genuinely afraid for example? A. He exhibited no signs of being afraid. Q. Well, did you think he might have been agitated because he was unwell? A. No. Q. You didn't think about that at all? A. No. Q. Your immediate reaction was then just to arrest him, is that right? A. To control the situation. Q. Well, at the moment, he's just standing there agitated. A. Yes. Q. Immediately before you told him he was under arrest, I'm talking about. You didn't think of any other way that you might calm him down, ask him to take a seat, deal with him in a more sympathetic manner, is that right? A. That's correct. Q. You're solution was 'You're under arrest'? A. He'd committed certain offences." In further cross-examination he said (Black 6/1226 line 55-1227 line 10): "Q. Did you ask him whether he would be prepared to accompany you to the police station, did you do that? A. No sir. Q. You see, here you had a man who was agitated. Why didn't you say to him 'Sir, we wish you to come with us to the police station'. Why didn't you tell him that? A. Because I was going to arrest him. Q. Yes, I appreciate you were going to arrest him, Constable, but you had not at this stage established whether this very agitated man was prepared to accompany you without any force being applied to him, had you?" The last question was rejected, but it underlay the plaintiff's contention on appeal that to take hold of the plaintiff's wrist was a battery. So did the following evidence (Black 7/1274 lines 19-25): "Q. … until you placed your arm on his, on Mr Woodley's arm, having told him he was under arrest, until that moment Mr Woodley had given no indication to you, verbally or otherwise, that he was not prepared to accompany you to the station for the purposes of dealing with the matters that you had some concern about, had he? A. That's correct." The cross-examination continued (Black 7/1274 line 36-1275 line 19): "Q. … until you placed your hand on his arm there was no reason for you to think, I suggest, that he would not comply with the a direction to get in the police vehicle and accompany you back to the station? A. I don't think I would agree with that. Q. You see, what I suggest to you, Constable, is what Mr Woodley resisted was the fact that you were applying force to him, that's what he resisted, isn't that the case? A. No. Q. And that you had no reason until you applied force to him to believe that he would not, if told he was under arrest, accept that and go with you to the station? A. No, I don't agree with that statement. Q. But it's the case, isn't it, that neither you or Constable Caldwell asked him - I withdraw that. After you said you were under arrest, and I appreciate you say you also indicated a charge at that point, after that point neither you nor Constable Caldwell asked the plaintiff to get into the police vehicle for the purposes of accompany[ing] you to the station before you took hold of him, is that right? A. That's correct. Q. And at no point up until the time you indicated that he was under arrest or, sorry, up until the time you took hold of him did he attempt to flee from the scene? A. That's correct. Q. Indeed, at the point when you took hold of him his keys were, of course, in the paddock, that's correct, isn't it? A. That's correct. Q. So that if he had attempted to flee from the scene it would have been on foot? A. That's correct. Q. You saw nothing, did you, that indicated to you that he might be about to do that? A. No, I disagree with that statement." 53 At the second trial Constable Boyd said that he "was unsure of [the plaintiff's] intentions: (Black 2/471 lines 56-57). He wished to "take control of the situation so that it wouldn't get out of control" (Black 3/508 lines 56-57). 54 Constable Caldwell's evidence was (Black 7/1360 lines 46-56): "Q. So that when the statement was made 'You are under arrest' there was no discussion, I take it, before Constable Boyd put his hand on Mr Woodley, about whether any restraint of Mr Woodley was required in order to get him to accompany you to the police station: A. That was the impression that one got, that to restrain him, yes. Q. But there was no discussion with him about whether any restraint was going to be required? A. No. No." Constable Caldwell was also "of the opinion that … he wouldn't have … come to the police station of his own accord" (Black 7/1379 lines 46-47). He also said (Black 7/1380 lines 1-10): "Q. You did not give Mr Woodley a chance to indicate any position on his part as to whether he would or would not accompany you to the police station peaceably, after being told he was under arrest? A. Through his manner, that he was very aggressive towards police, towards us, and it was obvious to me that he wasn't going to come to the station peaceably. Q. I see. Nonetheless you never asked him? A. That is correct." The First Stage Evaluated 55 No criticism was made of the police conduct up to the moment of the arrest. It was, at least until then, polite and restrained. Criticism commences from the moment of the arrest. At the time when Constable Boyd decided to place his hand on the plaintiff's right arm, he and Constable Caldwell: (a) knew that the plaintiff had been speeding; (b) knew that the plaintiff had been driving with an expired licence; (c) knew that the plaintiff had a concealed radar device in his vehicle; (d) knew that the plaintiff had twice told a "complete" lie on that subject, and "blatantly" so; (e) perceived the plaintiff to have attempted to intimidate them with a knife in such a fashion as to cause "alarm bells" to begin ringing; (f) knew that the plaintiff had a dangerous weapon, nunchakus, in his possession; (g) perceived the plaintiff to be behaving in an unusual fashion - in an increasingly aggressive, very nervous, very severely agitated but not afraid, upset, on edge, rushed, noisy fashion; perceived him not to be pleased in the position he was in; and perceived him to be a little bit shaky and threatening in his manner; (h) perceived the situation to be moving out of control; (i) observed the plaintiff throw his keys away into the nearby paddock in an eccentric fashion - "to say the least, out of the normal"; (j) regarded the plaintiff as capable of attacking or fleeing from the police. 56 A reasonable police officer in the position of Constable Boyd was entitled to conclude, as Constable Boyd did, that precautions needed to be taken to make it clear to the plaintiff that he was under arrest, to protect himself and Constable Caldwell from attack, to prevent the plaintiff from running away and in general to bring some order and control into what was happening. That conclusion is not nullified or undercut by the fact that the threat from the knife and the nunchakus had ceased, or by the fact that the plaintiff had not yet actually attacked the police officers, or by the fact that no flight had yet been attempted, or by the fact that any flight could only have been on foot. The point is that though the plaintiff's intentions were unclear, he did not appear to be afraid, but he did appear to be upset, aggressive and abnormal, and he did not appear willing to come to the police station peacefully. A perception of a risk of attack or flight cannot be described as unreasonable. The degree of force which Constable Boyd used in relation to the plaintiff's arm was as gentle as it could have been once it was decided to effect a physical touching: "I took hold of his right arm with my right hand" (Black 2/459 line 40). 57 The plaintiff submitted, after referring the court to Zecevic v DPP (Vic) (1987) 162 CLR 645 at 662-4 and R v Thomas (1992) 65 A Crim R 269 at 272, that force could not have been applied lawfully to him unless he had brought about a situation where there was "some reasonable basis to believe that the application of force is necessary" (transcript page 20 line 37). If that is a relevant test, it was satisfied in the present circumstances. 58 If the test stated in R v Turner [1962] VR 30 at 36 is applied, Constable Boyd used that degree of force which he actually believed to be necessary to effect his purpose, namely to maintain control over the situation, prevent flight and prevent an attack by the plaintiff. That was a reasonable belief. And a reasonable person in his position would not consider the placing of a hand on the plaintiff's wrist as disproportionate to the evils to be prevented. 59 Initially the plaintiff did not contend that Constable Boyd had breached the law by placing a hand on the plaintiff (transcript page 18 line 54 and page 20 lines 9-10). Indeed his counsel conceded that at trial issue had not been taken "with the basic act of touching but only with what followed" (transcript page 48 lines 46-47). In due course, after some debate with the court (transcript page 21 lines 16-18), the plaintiff appeared to criticise the touching. Counsel for the defendant complained that if the point had been taken at the trial, the police officers would have been given an opportunity to explain why they took the plaintiff by the arm, and there was a procedural unfairness in taking the point on appeal. This complaint is invalid: it is difficult to conceive of a more exhaustive examination of the events in controversy, and every nuance of the police conduct was so closely examined that, assuming the touching were held unlawful, any additional answer they may have given on that subject could not have affected the outcome. In any event, the touching has been held not to have been unlawful. Second Stage: The Decision to Apply a Wrist Lock 60 The trial judge found that the following happened after Constable Boyd took hold of the plaintiff's right arm (Red 30.1-.2): "The plaintiff tried to pull his arm away from something between a tug of war and an arm wrestle. Shortly after this struggle commenced Boyd placed a wrist lock on Woodley …." 61 Constable Boyd said that after he took hold of the plaintiff's right arm "he began to struggle violently", Constable Caldwell took hold of his left arm and he, Constable Boyd, applied an arm lock (Blue 2/9, 14, 16, 21 and 27; Suppl Tab 31 para 10). He "commenced to struggle and try and pull away … I tried to retain hold of the defendant's arm and he began to struggle violently" (Blue 1/19 and 21). He attempted to pull his arm away very "sharp" (Black 2/410 line 26). Constable Caldwell "took hold of his left arm and [the plaintiff] continued to struggle pulling his arm from my grip. I again took hold of his left arm and attempted to place his arm behind his back to stop him from striking at Senior Constable Boyd" (Suppl Tab 31 para 10) or himself (Black 7/1316 lines 10-15; 2/319 lines 3-5). The plaintiff "resisted" Constable Caldwell "by attempting to break free of [Constable Caldwell's] grip and pull his arm away from [Constable Caldwell's] hold" (Black 7/1318 lines 50-51). At Black 6/1157 lines 47-59 Constable Boyd said: "Q. And, as you took hold of his right arm, what happened then? A. He tried to pull his arm away from mine. He tried to release himself from my grip, and he began to struggle. Q. I know it may be difficult, but can you indicate the actions which constituted the struggle? A. It was a bit like a tug of war, he's trying to pull his arm back away from mine, I'm trying to - to retain it in that position. I - it's a cross, suppose, I think, between a tug of war and an arm wrestle, if you like." "He tried to move his arm in a very quick, jerky movement so as to break himself free, with as much force as he could" (Black 6/1231 lines 18-19). Constable Boyd was attempting to re-establish control of the plaintiff (Black 7/1274 line 34). Third Stage: The Decision to Apply an Arm Lock 62 The trial judge summarised Constable Boyd's evidence that the purpose of the wrist lock was to cause acute pain "which is usually enough to control a person and if the person continues to struggle more pressure could be applied" (Red 30.4). The trial judge continued: "Boyd explained that the plaintiff continued to struggle after the application of the wrist lock either because he had not applied it correctly or had not got the pressure to actuate the nerve pain. The plaintiff continued to struggle and pull away. The plaintiff said 'What am I being arrested for?' Boyd said "I have already told you for possession of the nunchakus'. A short time after that Boyd decided to swap from a wrist lock to a full arm lock to control the plaintiff who was still trying to pull away" (Red 30.5-30.8). 63 Constable Boyd said that the plaintiff "continued to struggle violently" trying to release himself from our grip (Blue 2/9 and 14). The plaintiff "continued to resist violently, tried to free himself from our grip, so that I then placed an arm lock on the [plaintiff's] right arm (Blue 2/16-17 and 21). Constable Boyd said (Blue 1/29.4 and .8): "I was having problems with his strength to try and get his arm straight. The wrist lock wasn't on properly as far as I was concerned. My experience in the past is when a wrist lock is in place properly then the pain becomes so acute that the defendant ceases to struggle. … As I said I had trouble with the wrist lock in the fact that he was still struggling violently. It was still a case of I didn't have the hold. In my opinion he was still capable of getting out of the hold and assaulting me." 64 Constable Boyd said (Black 6/1161 lines 7-14): "Q. As you placed the wrist lock on his right arm what happened? A. Mr Woodley continued to struggle and it appeared to me that the wrist lock was either having very little effect or that I hadn't placed it on correctly or hadn't got the pressure point to actuate the nerves. In any event he was continuing to struggle and trying to pull away." Constable Boyd moved to a full arm lock in "an attempt to control" the plaintiff (Black 6/1161 line 22; 7/1274 line 34). He was then asked (Black 6/1161 lines 24-29): "Q. What was he doing when you attempted to control him? A. He was still trying to pull away from my grip. I didn't think at that stage that I had him sufficiently under control, basically I was going to plan B if you would like to put it that way. I was going to put the arm lock on in an attempt to control the situation." The plaintiff was "struggling violently" (Black 6/1231 line 54). Fourth Stage: The Decision to Handcuff the Plaintiff 65 The trial judge made the following findings about what happened when Constable Boyd decided to handcuff the plaintiff (Red 30.8-31.1): "The plaintiff continued to struggle and tried to shift his weight around to try and straighten his arm out and release himself from the hold and he was applying a great deal of force. He described the plaintiff as a strong man. Boyd then said to Caldwell 'I am going to handcuff him'." 66 Constable Boyd had recent experience as at 1991 of the dangers of taking an arrested person who was not handcuffed and was sitting in the back of a vehicle being driven by a police officer (Black 7/1301 lines 2-10 and 22-28). There were no barriers between the rear seat and the front seat (Black 7/1390 line 40-1391 line 9). Fifth Stage: From the Decision to Handcuff the Plaintiff Until the Plaintiff's Arm Broke 67 The trial judge found that after Constable Boyd said he was going to handcuff the plaintiff the following happened: "He took his handcuffs out and started to put them on and the plaintiff shouted 'You are not putting them on me' and then made a sudden move of his body both forwards and down and a snapping sound was heard by Boyd. Boyd described this as a move with as much force as the plaintiff could muster, a sudden and violent move. He did not move forward that much bearing in mind that Boyd had a firm grip and that Caldwell had a grip on the other side" (Red 31.1-.3). 68 The plaintiff "tried to pull away by moving forward and down" (Blue 2/9 and 14), "attempted to pull away once more by moving forward in a downwards motion" (Blue 2/21 and 27), "pulled away" (Blue 2/17) or "suddenly pulled away moving forward and in a downward motion" (Suppl Tab 31 para 10; Black 2/319 lines 13-14). "He made a sudden move and he went forward and down" (Black 6/1182 lines 50-51). He did so with "as much force as he could muster, that's my understanding at the time, it was sudden and it was a violent move" (Black 6/1163 lines 3-5). He "lunged forward and down in a violent motion" (Black 2/443 lines 41-42). The plaintiff "dropped his weight, whole body weight on Constable Boyd's hold" (Black 2/416 lines 37-38). Stages 2-5 Evaluated 69 Again the plaintiff submitted in relation to stages 2-5 that the trial judge had failed to appreciate his argument that even if the police officers' evidence was preferred to his, it did not justify a conclusion that the force had not been excessive, and that the trial judge had failed to analyse it or give reasons for rejecting it. Even if that criticism is sound, the plaintiff's arguments must fail as a matter of substance. 70 The plaintiff submitted that the plaintiff had not created circumstances where there was some reasonable basis for the police officers to believe that the application of force was necessary. But once it is concluded that there was a power to arrest not used for a collateral purpose, and that it was lawful for Constable Boyd to exercise that power by grasping the plaintiff's wrist and uttering words of arrest, the plaintiff's case enters an area of difficulty. From that moment on the plaintiff's actions were in resistance to a lawful arrest. Those actions started a sequence of events culminating speedily in the breaking of the arm. The "struggle was a continuous one" (Black 6/1162 line 1) in which the plaintiff applied a "great deal of force" (Black 6/1162 line 8). As Constable Boyd said, "I told him he was under arrest and placed my hand on him. And what ensued, ensued. There was no - one thing led to another" (Black 6/1227 lines 37-39). If the arrest was lawful when the plaintiff's wrist was grasped, all his actions were actions in resistance to that arrest which the police officers were entitled to bring under control by force. 71 So far as the plaintiff submitted that excessive force was used because the purpose of applying the wrist lock and the arm lock was to cause pain, the submission should be rejected. The purpose was not to cause pain for its own sake, but rather to reduce the plaintiff's resistance, for pain was only caused to him so far as he offered resistance. 72 The plaintiff submitted that the extent of the violence being employed by him was exaggerated: he submitted (transcript page 23 lines 17-24): "We have two policemen attempting to push both arms up behind the appellant's back and all we have is that he's moving his upper body and arms and he may have been shuffling his feet. One might have thought that a violent struggle would involve a melee of some sort where the appellant was kicking, pushing out his feet towards the car, something of that sort." This submission does not grapple with the evidence of the police officers, accepted by the trial judge, about their difficulties in handling the plaintiff, his strength, and their perception of it as involving violence by the plaintiff. 73 The plaintiff submitted that just before Constable Boyd said that handcuffs would be used, the plaintiff was under control and there was an opportunity "to try and say are you prepared to be reasonable, are you going to go quietly, are you going to calm down?" (transcript page 24 lines 16-17). The plaintiff submitted that the use of handcuffs was excessive force which he was entitled to resist by seeking to free himself by the manoeuvre which caused his arm to break. It was submitted that it was "absurd to suggest that any person conveyed to the Police station in a Police vehicle has to be handcuffed for safety reasons". Far from the handcuffing of the plaintiff being "absurd", it seems reasonable. A person who, it was apprehended, might behave violently in a police vehicle who was not handcuffed might be a source of danger to the police officers and to himself both because of the risk of striking them and because of the risk of interfering with the safe driving of the vehicle. By the time it was decided to handcuff the plaintiff, the police officers were entitled to assume that the plaintiff would not respond to mere persuasion, and the trial judge accepted their evidence that handcuffs were necessary to control the situation. 74 If the test stated in R v Turner [1962] VR 30 at 36 is applied to stages 2-5, the police officers used that degree of force (taking the plaintiff's left arm, applying a wrist lock, then applying an arm lock, and then deciding to use handcuffs) which they actually believed to be necessary to effect their purposes, namely to prevent the plaintiff fleeing or attacking them and to resist the violence he was employing in resisting arrest. It was a reasonable belief, and a reasonable person in their position would not consider the successive forms of force as disproportionate to the evils to be prevented. 75 Grounds 1 and 3 are rejected. 76 So far as grounds 1 and 3 complain of failing to consider and give reasons for rejecting the plaintiff's submissions, they need not be specifically dealt with; for, assuming but not deciding that the submissions were not fully considered, had they been fully considered, the trial judge would have come, and would have been justified in coming, to the same conclusions for the reasons expressed above. Ground 2 77 This ground is as follows: "2. His Honour erred in finding that the injuries sustained by the Appellant were caused by his "violent and irrational" reaction to the process of putting him under handcuffed arrest." 78 The plaintiff's written submissions were as follows (paras 3.2-3.4): "3.2 It is submitted that the evidence outlined above simply cannot, and does not, sustain a finding that the Appellant reacted in a 'violent and irrational' way, even if other members of the public may have been more meek and acquiescent when faced with assertions of what they perceived as heavy-handed Police authority. The Appellant was certainly upset, but in the circumstances, that is hardly 'irrational' behaviour, bearing in mind that he was [being] arrested and handcuffed as a result of possessing a pair of nunchakus and a radar detector, both of which were entirely legal where he came from (which was after all, not a foreign country, but somewhere only a few hours drive away). At very least, a citizen had the right to expect that the Police might exercise greater restraint in the case of a person who, had the same events occurred in the ACT, would have been potentially guilty of nothing but speeding (had that charge been proven, which is was not). 3.3 Even putting aside the question of rationality, the Police evidence properly analysed cannot support a finding that the Appellant was 'violent' in any fashion that justifies the objective use of that word by a judge. Neither Police officer alleged he had been struck, or threatened, or verbally abused, and the physical component of the 'struggle' apparently did not even cause the Appellant to do more than move his upper body vigorously to free his arm from a painful lock and 'shuffle' his feet backwards and forwards over a small distance, such that none of the parties involved even lost his balance. 3.4 The question of whether the finding that the Appellant was 'violent and irrational' is correct is not just a minor semantic quibble. It was central to the basis on which the Police actions towards the Appellant were justified by his Honour. If that factual finding is wrong, then the decision is anchored on a false premise and cannot stand." 79 The trial judge's findings about the plaintiff's behaviour just before his injury were set out in relation to the second-fifth stages. So was the evidence on which they were based. That evidence, and in particular the evidence relating to the fifth stage, strongly supports the trial judge's acceptance of Constable Boyd's description of the plaintiff's movement as "sudden and violent". A movement by the plaintiff which was sufficiently sudden and violent to break his own bone can correctly be called "violent and irrational". The plaintiff's mind may have perceived it to be desirable to continue struggling, but whether or not that be so, it was objectively irrational on any view to do so to the extent of breaking his own bone. Grounds 4-5 80 These grounds are as follows: "4. His Honour erred in failing to provide adequate reasons for his rejection of the evidence of the Appellant and other lay witnesses called in support of the Appellant's case. 5. In his rejection of the evidence of the Appellant and other lay witnesses called in support of the Appellant's case, his Honour erred in taking into account - (a) irrelevant considerations; and (b) conclusions of fact unsupported by the evidence." 81 The plaintiff's submissions were as follows (paragraphs 4.1-4.6): "4.1 His Honour gave a number of reasons as to why he found the Appellant a person 'in whom the court could place no credence whatsoever': Red AB 35-37. The first of these was based on the opinion of Dr Lee that 'at the relevant time' the Appellant was a 'diagnosed psychopath with paranoid features focused [sic] towards Police in general': Red AB 36. Dr Lee had last seen the Appellant in March 1990, a year and nine months before the 'relevant time': Black AB 338.48. He did not know, could not know, did not purport to know, what the position was in December 1991: Black AB 358.34-59. In any event, at no stage in his evidence did Dr Lee describe the Appellant as a 'diagnosed psychopath with paranoid features' focussed on the Police or anyone else: see e.g. Black AB 348.30-40. 4.2 It is true that Dr Knox (the other psychiatrist who saw the Appellant prior to the incident of 18 December 1991) made a diagnosis of 'intermittent explosive disorder' (a diagnosis not made by Dr Lee, who thought the Appellant had a depressive disorder): Blue AB 84. However, Dr Knox had also not seen the Appellant since September 1990, or 15 months before the 'relevant time', and conceded there may have been a change: Black AB 245.7-13, 250.4-254.1. Dr Knox was not entirely comfortable about using the word 'paranoid' except in lay terms: Black AB 242.5. He was prepared to agree with counsel for the Respondents that the Appellant had a 'psychopathic personality' in the sense that he suffered from an antisocial personality disorder, but the context of his evidence shows he was not using the adjective 'psychopathic' in the pejorative manner his Honour used the noun 'psychopath': Black AB 242.43-535. Both Dr Lee and Dr Knox agreed that the Appellant was a man not comfortable with being angry and violent and wanted help with his fears that he might lose control: Black AB 246.12-33, 347.53-348.13. Neither doctor had ever observed the Appellant lose control in his presence. 4.3 To the extent that His Honour relied on a mistaken view of Dr Lee's evidence in assessing the credibility of the Appellant, his Honour erred. In any event, the evidence of Dr Lee and Dr Knox, whatever it meant, was [it] is ultimately not relevant to the issue of liability because nothing in the Police evidence supported a conclusion that the Appellant had had a 'rage attack' or exhibited any manifestation of an 'explosive disorder' on 18 December 1991, or that the Police knew anything about this past history that might have led them reasonably to fear him and react pre-emptively. To the extent that his Honour allowed the psychiatric evidence to influence his conclusions on credibility and liability, his Honour erred in two ways. First, he impliedly concluded that Dr Lee and Dr Knox were expressing views about the mental state of the Appellant 'at the relevant time', when they were clearly not in a position to do so, and second, he relied on an attribution of a diagnosis to Dr Lee that was not only wrong, but had no relevance to the sequence of events that took place by the road at Taree. 4.4 His Honour's conclusion that the insistence of the Appellant on seeing his own speed on the radar display was 'entirely inconsistent' with his own version of events is also simply not correct: Red AB 36. The point was that the Police alleged they had recorded him travelling at 96 kph in a 60 kph zone. At that moment, there were two possibilities consistent with the Appellant's own version of the facts. Either the Police had not recorded that reading at all, or they had recorded the reading in the 100 kph zone. It is hardly surprising that the Appellant (as someone not inclined to accept Police as habitually truthful) would want to see solid evidence of the reading itself. "Show me the evidence' would be the first reaction of many people who feel unjustly accused of speeding. 4.5 His Honour's reference to the Appellant's use of the word 'accident' as a 'Freudian slip' also suggests that his Honour has drawn a conclusion that such usage was evidence that the Appellant secretly believed that the injury was an accident, and somehow the use of that word that meant the Police were not at fault in any way: Red AB 37. It is submitted that this usage (accidental or otherwise) has no probative value whatsoever, but even if it did, it can hardly be any basis for a credibility finding against the Appellant. It was never the Appellant's case that the Police deliberately broke his arm, but that the arm was broken as a result of the unjustifiable application of unauthorised and excessive force. In that case, the injury was correctly described as an 'accident', and no adverse conclusion could be drawn from its use. 4.6 His Honour referred globally to the other lay witnesses in the Appellant's case: Red AB 37. There is no analysis or discussion of any of the evidence of Ms Meyburn or Mr Smith, or what is was about what they said or their demeanour that caused His Honour to reject them, as he clearly must have done. That is an error of the kind referred to in Earthline : see also Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247. Similarly, his Honour's brief reference to the evidence of Susan Bryce, the Appellant's de facto spouse, does not provide any basis for the Appellant to understand exactly what it was in her evidence that his Honour thought supported the conclusion that she was 'happily there to support his claim in the most obviously biased fashion despite the fact that she more than anyone is aware of the [Appellant's] violent and irrational nature': Red AB 37." 82 The defendants' written submissions were as follows (paras 8-13): "8. There was a mountain of evidence to suggest that the appellant suffered from a serious psychiatric condition, not merely at the time of incident, but for a period of some years before, and right up till the date of trial. See paragraphs 12 to 14 of prior submissions of respondents as to this evidence. Dr Lee recorded a history given to him by the appellant and his de facto wife on 20 November, 1989 (Black book P 342 line 10 to P 344, and Blue Book P 143- 150). Whilst Dr Lee did not make the actual diagnosis of the appellant being a psychopath with paranoid features (and the trial judge does not say that he did) there is clear evidence supportive of such a diagnosis being given by other psychiatrists (Dr Petroff: Blue book P 114, Dr Knox: Blue book P 82 and P 92, Dr Berenson: Black book P 844 at line 8) to suggest that the appellant was not suffering from a severe psychiatric disorder, a psychopathic personality, paranoia or otherwise is to fly in the face of the evidence presented. The appellant himself conceded in his evidence that he was pursuing a disability pension throughout 1991 to early 1992, with such application being based upon his uncontrollable violent temper, becoming aggressive when provoked, unable to take orders from a superior in an employment situation without being subject to rage attacks, and in the course of 1991 was afraid that he would lose control if irritated by anyone (Black book P 604 - P 630). Such anxiety based symptoms existed throughout the entire period of 1988 to 1992 per Dr Berenson - Black book P 847 lines 15 - 30). 9. The relevance of his psychiatric condition is as follows: (a) His suffering from such a condition at the time may explain firstly, the likelihood of the appellant acting in the irrational and violent manner which he did, and the reasons why such conduct was undertaken. (b) The fact that the appellant was less than forthcoming in revealing this psychiatric condition prior to the commencement of his cross-examination affects his credibility generally. (c) The fact that the appellant was evasive in his answers when confronted with the seriousness of his pre-existing psychiatric condition also is capable of affecting his overall credibility. 10. Para 4.4: The appellant maintained at trial that the police had recorded his speed whilst he was outside the 60 mph zone, and in the 100 zone. He was told by the police at the time, on his version that he was doing about 85 kilometres per hour in a 60 zone. (Black book, P 557 - line 40 to P 558). If the appellant were to have been travelling at 60 kilometres per hour by the police, one would expect an immediate denial from the appellant, rather than his merely disbelieving the police as to his stated speed, with his wanting to check for himself as to what speed was shown on the police recording unit. (Black book P 555 line 5-15, and P 557 line 45 to P 558). The actions of the appellant, in this sense, are entirely inconsistent as the trial judge noted. Whilst the appellant may wish to argue that there are other possible explanations for the appellant's conduct, it is clear which view the trial judge accepted as being the most acceptable one. This is in a background of the appellant not being able to tell, on his own estimate, whether or not his radar detector went off when he was travelling at 65 or 95 km per hour, and relies upon his alleged reading of 83 km per hour, as recorded on the police unit, as his estimate of speed. (Black Book, 723 Line 19 - line 55). Of course, the police evidence was that a recorded speed of 96 km per hour was the reading in the police car (Exhibit 14). 11. Para 4.5: It was the appellant's case that the police did deliberately break his arm. Indeed, in the factual contest, the respondents had to rebut the suggestion that not merely did the police use excessive force, but that a torch was used to hit him at the time when the arm was broken. See the Further Amended Statement of Claim (and paragraph 6(d) (Red Book at P 3 pt 7) and particulars provided, which clearly alleged that the appellant was struck with a torch or similar object. (Blue book P 49 at pt 2). See also the appellant's evidence in chief at Black book P 562 line 35 to P 20. Dr Berenson gave supportive evidence as to the proposition that a torch may have been used (Blue book P 1 point 4 - point 6) and this was consistent with the history given to him by the appellant (Black book, P 799 lines 30 - 40). The appellant also maintained in his evidence that he had been 'brutalised' by the police. In the context of these clearly serious allegations, one would hardly expect an appellant to refer to such an incident as an 'accident'. The appellant was cross-examined on this aspect at Black book, Page 41 line 25 to P 43. Given the pleadings, and the allegations made by the appellant, one could not conceivably mis-describe the police actions as an 'accident'. The only possible interpretation of an 'accident' from the appellant's point of view is that his own actions in resisting were not intended to lead to his breaking his own arm. 12. Para 4.6: There was much cross-examination of the appellant and his witnesses. Time after time, inconsistencies in the evidence were put to them, their evidence was contrasted with the objective evidence of the doctors, the inconsistencies in the evidence between each of the witnesses was highlighted in the cross-examination, and the fragile credibility of the witnesses became obvious to anyone following the evidence. Taken in conjunction with the trial judge's assessment of the demeanour of each of the witnesses, the trial judge's findings are unassailable. Indeed, the appellant does not point to any independent, corroborative or objective evidence which is capable of resurrecting the credibility of the appellant or his witnesses. The objective evidence is all one way. Neither the appellant or his witnesses are capable of belief. 13. Further, it is [to] be remembered that there were no lay witnesses to the relevant incident itself, only the appellant and the two police officer respondents. Hence, this ground of appeal in reality relates to the damages claim, though it is recognised, is capable of affecting the plaintiff's overall credibility, though to a much lesser extent." 83 So far as Dr Lee and Dr Knox are concerned, any error made by the trial judge in attributing a wrong diagnosis to Dr Lee or assuming that diagnoses they made of the plaintiff at times other than December 1991 were applicable in December 1991 appears to have been an immaterial error. The evidence does support the view that the plaintiff had strong tendencies towards uncontrollable rages. And any error does not affect the overall soundness of the trial judge's conclusions on the plaintiff's credibility in relation to his narration of the events of 18 December 1991. The police officers had made contemporary notes. For the most part their evidence was internally coherent and consistent. On the other hand, there were numerous obstacles to accepting the plaintiff's evidence. To read it is to share the trial judge's scepticism about it. It gives a strong impression of imprecision, unreliability and evasiveness. There were specific problems relating to his credibility. The plaintiff lied twice to the police on the question of whether he had a radar detector. He lied once to the court on whether he knew that radar detectors were unlawful in New South Wales (he was charged with having committed that offence on 29 June 1991 and was about to attend court to answer that charge on 6 February 1992: Black 1/33-38). A dispute between the plaintiff (who said that the police vehicle was a white vehicle marked "Police" with attachments on the roof) and the police officers (who said it was unmarked) caused the plaintiff to allege a police conspiracy to fabricate their story, to destroy or conceal police vehicle use diaries which might have damaged it, and to persuade Sergeant Scotcha to give different evidence in the second trial from the evidence which he gave to the magistrate that the car was unmarked. Once Sergeant Scotcha's explanation was accepted - and no reason has been advanced by the plaintiff for doubting the trial judge's acceptance of it - the conspiracy theory became suspect on that ground and on other grounds as well, and so did the plaintiff's evidence supporting it. 84 Further, the plaintiff shifted ground even within his own story. In his answer on 14 September 1994 to the defendants' request for particulars dated 7 September 1993, he unequivocally asserted that "one of the [defendants] … struck the plaintiff in the area of the right humerus with a torch or similar object. The plaintiff's right arm was then broken" (Blue 49). The defendants submitted that he did not positively testify that he had been hit, but the fact that he solemnly propounded the allegation that he had in particulars was adverse both to his reliability and his credibility. 85 So far as the arguments based on the plaintiff's insistence on seeing his own speed are concerned, there was an arguable inconsistency in the plaintiff's position, and the trial judge was entitled to treat it as significant. The same is true of the plaintiff's use of the word "accident", especially since his stand as taken in the particulars was to contend that the bone was broken by a deliberate blow with a torch. 86 That leaves the plaintiff's submission about Ms Mayburn, Mr Smith and Ms Bryce. Again, whether or not the trial judge was correct in not accepting these witnesses as credible, they were witnesses on damages issues, and what matters in this appeal is what happened between the plaintiff and the two police officers. The trial judge had ample grounds for preferring the evidence of the police officers to that of the plaintiff. 87 The defendants have gone to considerable lengths to support the aspects of the trial judge's findings which are attacked in relation to grounds 4 and 5. In the circumstances it is not necessary to evaluate these submissions. Notice of Contention 88 The defendants sought to rely on a Notice of Contention which alleged that there were many items of evidence not referred to by the trial judge supporting his conclusion. In view of the rejection of the plaintiff's attacks upon the trial judge's reasoning, it is not necessary to consider the arguments employed by the defendants in support of their Notice of Contention. New Trial 89 If the plaintiff's substantive arguments on Grounds 1 or 3 had succeeded, the plaintiff would have been entitled to a verdict. So far as any of the grounds of appeal based on a failure to give full reasons are concerned, and so far as Grounds 4 and 5 in general are concerned, the only result of success for the plaintiff's arguments would be an order for a new trial. Part 51 rule 23(1) of the Supreme Court Rules provides that this Court is not to order a new trial unless it appears "that some substantial wrong or miscarriage" has occurred. In view of the trial judge's credit findings, their acceptance by the plaintiff for some purposes, and their overall soundness, it does not appear that any substantial wrong or miscarriage has occurred even if there had been a failure to give reasons for any conclusion. It is accordingly not necessary to discuss whether adequate reasons were given. For the same reasons, no new trial should be ordered even if Grounds 4 and 5 were made out. Orders 90 The plaintiff stressed more than once that it was part of the "great compact" between citizen and state that: "where a citizen alleges that the process of law enforcement has gone beyond the limits explicitly or impliedly placed upon it that the justice system will treat the allegation seriously and carefully and with respect, because there is probably no greater injury that can be done to a person in a society like ours than one done under colour of the authority of the state" (transcript page 2 lines 4-11). He submitted that in such cases there was a particular entitlement on the part of the citizen to a careful analysis of the issues and a full statement of reasons. Whether or not the plaintiff's criticisms of the trial judge for failing to analyse the issues or state reasons fully is valid, the analysis conducted above demonstrates that his conclusions were sound. It is always a matter for alarm, and for inquiry, when a citizen receives a serious injury while in the custody of the state. The injury in this case, however, was not the result of tortious conduct on the part of the defendants. 91 In my opinion the following orders should be made: 1. Appeal dismissed. 2. The appellant is to pay the costs of the defendants. 92 DAVIES AJA: I have had an opportunity to read the reasons for judgment of Heydon JA. I agree with them and with the orders proposed but I would make some additional observations of my own. 93 Counsel for the appellant has contended that the learned trial Judge failed to deal or to deal adequately with two issues which, in counsel's submission, were crucial to the appellant's claim below. The issues were, first, whether the appellant's arrest had been unlawful being effected to achieve an unauthorised purpose and, secondly, whether, in the course of the arrest, undue force was used. 94 The first point inevitably fails because, although there was some cross-examination below of the respondents which was relevant to the point, the issue itself was not squarely put to them. An issue of ulterior purpose must be plainly raised and plainly put to the relevant witnesses so that they have a fair opportunity to turn their minds to it and to give express evidence about the matter or matters which actuated their actions. In the present case, that was not done. The issue cannot now be raised. 95 The second point also fails. As Heydon JA has pointed out, an arrest is made when the arresting officer indicates that he is making an arrest and the suspect submits. In the present case, when Senior Constable Boyd placed his hand on the appellant's wrist, the appellant did not submit. He resisted. To counter his resistance, a wrist lock and then an arm lock were applied. Ultimately, the appellant threw himself forward in an attempt to break the arm lock. This movement, his own resistance to the arrest, caused his arm to break. It cannot be said that the police officers were using undue force. They were using standard wrist and arm locks in an attempt to force the appellant to submit to the arrest. The application of force was rendered necessary by the appellant's refusal to submit, by his resistance. 96 It may have been arguable that the first step taken by Senior Constable Boyd, that of taking hold of the appellant's wrist, was unnecessary and provocative and that the appropriate course would have been to ask the appellant to step into the police car, next to which he was standing. However, no such contention was put to the trial Judge or tested by cross-examination. It is too late to raise the matter at this stage. 97 I agree with Heydon JA that the trial Judge did not fail to deal with issues with which he ought to have dealt and that, having regard to the findings of the trial Judge, the appeal must fail. 98 FOSTER AJA: I agree with the orders proposed by Heydon JA and with his Honour's reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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