Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chen v State of New South Wales [2014] NSWCA 41 Hearing dates: 26, 27 September 2013 Decision date: 10 March 2014 Before: Basten JA at [1]; Meagher JA at [91]; Tobias AJA at [92] Decision: (1) Grant each applicant leave to appeal. (2) Set aside the judgment and orders in the District Court. (3) Direct that the costs of the first trial be in the discretion of the judge on the retrial. (4) Order the respondent to pay the applicants' costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL AND NEW TRIAL - challenge to findings of fact - photographs of arrest - whether police deleted images on camera - failure of trial judge to make a finding as to whether images were deleted - relevance of images to applicants' case - issue of credibility of police - other findings based on acceptance of police evidence challenged APPEAL AND NEW TRIAL - appeal - interference with findings of fact - questions of credibility to be resolved - need for new trial - whether substantial wrong or miscarriage - Uniform Civil Procedure Rules (NSW), r 51.53 PROCEDURE AND PRACTICE - leave to appeal - requirement for leave to appeal where likely award of damages is below limit - District Court Act 1973 (NSW) s 126 POLICE - actions for wrongful arrest, trespass, assault and battery - conduct of police when arresting - use of physical force by police officers to restrain an offender - use of force to prevent commission of further offence - reasonableness of force used - whether trespass to person justified POLICE - rights, powers and duties - powers of police short of arrest to stop or prevent commission of offence - conduct of police when exercising such authority Legislation Cited: District Court Act 1973 (NSW), s 126 Inclosed Lands Protection Act 1901 (NSW), ss 3, 4 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 Uniform Civil Procedure Rules 2005 (NSW), r 51.53 Cases Cited: Bird v Jones (1845) 7 QB 742; 115 ER 668 Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; 56 CLR 605 Halliday v Nevill [1984] HCA 80; 155 CLR 1 Maynes v Casey [2011] NSWCA 156 R v Roxburgh (1871) 12 Cox CC8 State of New South Wales v Williamson [2011] NSWCA 183 Texts Cited: Sappideen and Vines, Fleming's The Law of Torts (10th ed, 2011) p 37 Category: Principal judgment Parties: Irene Rui Chen (First Applicant) Gong Xiang Xuan (Second Applicant) State of New South Wales (Respondent) Representation: Counsel: Mr C A Evatt/Ms L Evans (Applicants) Mr M J Neil QC/Mr M S Spartalis (Respondent) Solicitors: Wisdom Lawyers (Applicants) Makinson & d'Apice (Respondent) File Number(s): CA 2012/286030; CA 2013/85297 Decision under appeal Jurisdiction: 9101 Citation: Chen v State of New South Wales [2012] NSWDC 126 Date of Decision: 2012-08-17 00:00:00 Before: Johnstone DCJ File Number(s): DC 2011/54439 Judgment 1BASTEN JA: The applicants brought proceedings in the District Court against the State, alleging that they had suffered damage as a result of assaults by two police officers on 21 February 2008. After a trial lasting 10 days, before Judge Peter Johnstone, the proceedings were dismissed: Chen v State of New South Wales [2012] NSWDC 126. There was a dispute as to whether each had a claim of the value of $100,000, absent which each would require leave to appeal: District Court Act 1973 (NSW), s 126(2). The State contended that the appeal was incompetent; the applicants contended otherwise, but also sought leave to appeal if that were necessary. The applications for leave and the proposed appeal were set down for concurrent hearing. 2The first applicant, Ms Irene Chen, was a doctoral student at the University of Sydney. She had obtained a Bachelors degree in computer engineering and, in 2007, a Masters in design science. The second applicant, Ms Gong Xiang Xuan, was Ms Chen's mother. She was in Australia primarily to attend the graduation ceremony at which her daughter's Masters degree was to be conferred. Background and claims 3In February 2008 Ms Chen lived in rented premises in Chippendale, which were managed by Laing & Simmons, Newtown. It appears that her lease was due for renewal, but there was a dispute as to the terms of the new lease. The nature of the dispute was not entirely clear, but it appears she had sought to increase the number of persons able to occupy the three-bedroom premises. Having failed to reach agreement with her landlord, she was required to vacate the premises by 23 February 2008. 4On 20 February 2008 Ms Chen attended at the real estate agent's office with her mother. According to the employee to whom they spoke, Ms Joanne Farah, the question of additional lessees was raised, but both applicants became agitated when she told them that she would need to speak to the landlord and could not give them an answer immediately. She further stated (a proposition denied by Ms Chen) that they only left on the afternoon of 20 February when she threatened to call the police. 5Ms Chen returned to the office by herself the following day at approximately 1pm. She was driven to the office by a friend, Mr Christopher Forwood, who stayed in the car with Ms Chen's mother. (Unlike her daughter, Ms Xuan was not fluent in English.) Ms Chen entered the real estate agency office and spoke to Ms Farah. On not receiving a favourable response to her request to renew the lease on her terms, she asked to see the manager. She was told that the manager was not available and she indicated that she would wait until he was. She was then asked by Ms Farah to leave the premises. She did not do that, but sat in the waiting room, apparently crying. Ms Farah then rang the police. Officers Joanna Jacques and Daryl Cleofe attended, had a brief conversation with Ms Farah and then spoke to Ms Chen. 6The following events were the subject of the civil claims. Avoiding areas of controversy, it was accepted that Ms Chen did not wish to leave the waiting room but was escorted out by police. Outside the premises, the police said she sought to re-enter, at which stage she was restrained. The real estate agent's office was on the corner of a major thoroughfare (King Street) and a side street (Dickson Street). In some manner the police and Ms Chen moved approximately 30 metres up Dickson Street to its junction with King Lane. At that stage, Ms Chen was restrained, face down on the pavement, and her hands were handcuffed behind her back. Whilst being restrained, she yelled or screamed. Her cries were heard by her mother and Mr Forwood, both of whom left their car and sought to intervene to assist Ms Chen. Shortly after Mr Forwood arrived, Ms Chen called to him to take her camera from her handbag, which was lying on the footpath, and take pictures. He did so, taking five photographs of the scene. The fate of these photographs will be considered shortly. 7Officer Cleofe radioed for assistance and, in due course, Ms Xuan and Mr Forwood were also arrested and all three persons were taken to Newtown Police Station in a police van. 8The pleading in the civil proceedings, as crystalised during the course of the trial (and set out in a document marked 'Ex T') raised seven alleged causes of action. In respect of both applicants, there were allegations of: (a) wrongful arrest by physically restraining the plaintiff in Dickson Street, Newtown; (b) false imprisonment commencing in Dickson Street and continuing until released from Newtown Police Station; (c) assault and battery in Dickson Street, Newtown, and (d) malicious prosecution. Two additional causes of action were pleaded on behalf of Ms Chen, namely: (a) wrongful arrest by physically removing her from the real estate office, and (b) throwing her into a cell, dragging her out again and dragging her back inside the cell, at Newtown Police Station. 9So far as the events in Dickson Street, Newtown were concerned, after Ms Xuan and Mr Forwood arrived on the scene, Constable Cleofe devoted his primary attention to Ms Chen (and to resisting Mr Forwood's alleged interference), whilst Constable Jacques sought to subdue and arrest Ms Xuan. Nevertheless, the court attendance notice with respect to Ms Chen stated that she was apprehended by Constable Jacques at 2pm. She was charged with assaulting both Constable Jacques and Constable Cleofe and with resisting and hindering both in the execution of their duty. Similar charges were laid with respect to Ms Xuan. Issues on appeal 10The trial judge dealt in a clear and orderly fashion with each of the separate causes of action. He reviewed the evidence of all witnesses relevant to each cause of action and made findings with respect to credibility and reliability. The appeal challenged various findings of fact. 11As counsel for Ms Chen acknowledged, it was open to the trial judge to find that some aspects of Ms Chen's evidence were exaggerated or simply unreliable. A similar finding was made with respect to her mother. However, counsel referred to the finding of the trial judge at [167], in the following terms: "I do not, however, rely solely on her demeanour, appearance and conduct in court as the determinant of her unreliability as a witness. Rather, I have sought to rely predominantly on contemporary materials, objectively established facts, independent support from other witnesses, and the apparent logic of events." 12Counsel submitted that it was not intended on the appeal to seek to rehabilitate the creditworthiness of either applicant, but rather to adopt the approach identified by the trial judge which, it was submitted, would lead to a different conclusion with respect to critical aspects of the evidence. 13After briefly outlining the case for the applicants, the trial judge initially turned to the "police case" which he described as "diametrically different": at [5]. Having concluded that Ms Chen was an unreliable witness given to hyperbole and extravagance - at [181] and [182] - and that Ms Xuan "obfuscated, exaggerated and prevaricated" - at [186] - the trial judge continued at [187]: "By comparison, the two police officers gave uncomplicated, straightforward evidence. Their accounts of events were unembellished and consistent. Such discrepancies as may have emerged were minor and in my view understandable. Their evidence was unshaken on key matters, including the assaults on them by Ms Chen, Mr Forwood and Ms Xuan. Their accounts of the conduct of Ms Chen, and their interactions with her, both inside and outside Laing & Simmons were logical and coherent." 14The trial judge preferred the evidence of the police officers in each aspect where there was a conflict with the evidence of the applicants. The applicants submitted that this approach was not consistent with the objective circumstances or the "logic" of the events. 15The task which the applicants seek to have this Court undertake is fraught in three major respects. First, there is the problem of containment. Once it is accepted that a witness has lied or exaggerated in part of her evidence, according to an unchallenged finding of the trial judge, it is difficult to contain the damage to her credibility to particular parts of her evidence. A person who lies for her own advantage in presenting part of her case must run the risk of being disbelieved in respect of other elements. While exaggeration implies a basic element of truth, the difficulty is to persuade the trial judge where, on the probabilities, truth ends and exaggeration begins. To the extent the case turned on nice findings as to whether the police used excessive force, the lines are hard to draw and hard to challenge on appeal. 16The difficulty is illustrated by a particular finding which was not sought to be challenged on appeal. Thus, in July 2007 Ms Chen was injured in a motor vehicle accident. She saw separate psychiatrists in relation to that accident and in relation to the police assaults. She gave inconsistent histories to the psychiatrists, not mentioning to either that she had suffered a separate injury. The trial judge found that it was "inconceivable ... that a woman with her high level of intelligence could have misunderstood the nature of the inconsistent histories given to the psychiatrists": at [175]. That conduct demonstrated "a person capable of misrepresenting the truth for the purposes of personal gain". The trial judge further noted that "the failure to pay [her solicitor's] fees, when there was plenty of money to do so, indicated a capacity for deceit". Those findings related to matters far removed from the description of events in Dickson Street, Newtown and at Newtown Police Station. However, it was necessary for the trial judge to consider the extent to which he was satisfied that duplicity in one area might render difficult acceptance of her evidence in another area, especially where she bore the burden of proof. 17Secondly, and related to the first difficulty faced by the applicants, there is the inevitable benefit enjoyed by the trial judge, not merely of seeing and hearing the witnesses give their evidence, but of obtaining a deeper sense of how particular events may have unfolded from the experience of the totality of a 10 day trial. 18If the complaints made by the applicants are accepted, the result will be that flaws have been established in the manner in which the trial judge dealt with the evidence. Questions of credibility will remain which cannot be resolved by this Court. Accordingly, the only relief available to the applicants must be a retrial. However, the rules require that the Court not order a new trial unless it appears "that some substantial wrong or miscarriage" has been occasioned: Uniform Civil Procedure Rules 2005 (NSW), r 51.53. The evaluative judgment imposed by that rule (the validity of which was not in issue) may need to be superimposed upon a requirement of leave to appeal. Thus, if the Court were satisfied that the amount in issue was, realistically, less than $100,000, it would be necessary for the Court to consider whether the case raised any issue of principle, whether there was substantial wrong or miscarriage and the relationship between any likely award of damages and the costs which would be incurred in a retrial. 19The relevant considerations in the present case include the following: (a) the initial trial ran for 10 days; (b) the case turned entirely upon its facts; (c) the evidence was by no means "all one way"; (d) the injuries suffered by the applicants do not, on first impression, appear to have been serious; (e) given a degree of unco-operation and even misconduct on the part of the applicants, any award of damages is likely to be moderate. 20Those factors weigh against a grant of leave to appeal and, if error is identified, a retrial. Against those factors, it is necessary to weigh the nature of any error established on the part of the trial judge and the fact that a civil wrong committed by officers of the State involved in law enforcement should not readily be allowed to go unremedied. 21With these issues in mind, it is convenient to turn directly to the errors of the trial judge upon which the applicants seek to rely. Challenges to fact finding 22The applicants' cases turned on two separate sets of allegations. First, and most importantly, they submitted that the trial judge had erred in failing to find that the police had attempted to delete from Ms Chen's camera the photographs taken by Mr Forwood in Dickson Street, Newtown. That issue did not turn on any aspect of the applicants' own evidence. However, if made good, a further assessment would have to be made of the denial by the relevant police officers that they had deleted the photographs which, if disbelieved, would cast significant doubt on their credibility with respect to what occurred in Dickson Street, Newtown. 23Secondly, the applicants challenged specific findings relied upon by the trial judge which, they submitted, were simply mistaken, including that: (a) Ms Chen was properly arrested in or immediately outside the real estate office; (b) Ms Xuan had insisted that Officer Jacques "had grabbed her by the throat in an attempt to strangle her" - at [159] and [186], and (c) Ms Xuan had falsely claimed to have "her handbag" with her when she was apprehended - at [160]. 24If made out these last factual errors could not, by themselves, warrant a retrial. However, taken with the complaint that police had attempted to delete photographs, they were capable of providing support for a finding of miscarriage of justice. Bearing these considerations in mind, it is convenient to deal with the various allegations in the chronological order in which they arose. (a) removal of Ms Chen from Laing & Simmons' premises 25The first cause of action was somewhat ineptly expressed as "[w]rongful arrest of [Ms Chen] by Officers Cleofe and/or Jacques by physically removing her from the real estate office of Laing & Simmons ...". This formulation led, understandably, to consideration of whether Ms Chen was in fact arrested in the real estate office. There was no dispute that the officers both laid hands on Ms Chen inside the premises, pulled her to her feet and escorted her off the premises. 26It was also not in doubt that Ms Chen had business at the real estate office and therefore had implied consent to enter the premises: Halliday v Nevill [1984] HCA 80; 155 CLR 1 at 7. Such a licence can be revoked by the occupier or a person acting with the authority of the occupier and, if the person fails to leave the premises within a reasonable time of the revocation being communicated, he or she will become a trespasser: Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; 56 CLR 605 at 631; Maynes v Casey [2011] NSWCA 156 at [20]ff. The trial judge found that Ms Chen had been told by the property manager, Ms Farah, who appears to have been in charge of the premises in the absence of the manager, to leave, prior to her calling the police. The judge also accepted evidence from the police officers that they had repeated to Ms Chen that she had been told to leave. Thus, Ms Chen had become a trespasser and the occupier was entitled to take reasonable steps to remove her. It has been held that a police officer might lawfully assist the occupier to remove a person in such circumstances, although in doing so the officer would not be acting in the execution of his or her duty as a police officer: R v Roxburgh (1871) 12 Cox CC 8 at 9 (Cockburn CJ). 27In this jurisdiction, remaining on inclosed lands after being requested to leave by the owner, occupier or person apparently in charge, is an offence: Inclosed Lands Protection Act 1901 (NSW), s 4(1). The real estate office was "inclosed lands", as defined in the Act, s 3. 28It may well have been open to the officers to arrest Ms Chen on reasonable suspicion of committing an offence under that provision. However, the trial judge held that Ms Chen was "neither arrested nor detained inside the premises" - at [197] - and continued: "[199] I am not satisfied that Ms Chen was restrained or detained, in the sense that there was a complete deprivation of, or a restraint upon her liberty. She was at all times free to leave the premises of her own accord. What she was not free to do was remain on the premises. [200] I find that there was no arrest of Ms Chen, let alone any wrongful arrest, nor was she falsely imprisoned as a result of the events that occurred inside the Laing & Simmons office on Thursday 21 February 2008." 29These findings go somewhat beyond the cause of action as pleaded. For example, there was no pleading of false imprisonment at that stage. Nor, on the findings of fact, could a cause of action for false imprisonment have been made out: if the intention of the officers was merely to prevent Ms Chen remaining on (and later returning to) the premises, there was no relevant confinement: Bird v Jones (1845) 7 QB 742; 115 ER 668; Sappideen and Vines, Fleming's The Law of Torts (10th ed, 2011) p 37. However, the findings assume that the officers laid hands on Ms Chen in the exercise of their authority as police, and in removing her from the premises were not acting as agents of the occupier. Unless undertaken with legal justification, those actions constituted an assault and battery or trespass to the person. 30Earlier, the trial judge had described the allegation of unlawful arrest as "misconceived, in the sense that unlawful arrest is not of itself a tort": at [191]. That proposition, which is not self-evidently correct, was extracted from a statement in State of New South Wales v Williamson [2011] NSWCA 183 at [24] (Campbell JA). However, the full statement was that "unlawful arrest is not a tort separate [from] assault, battery and false imprisonment". In any event, both false imprisonment and assault and battery were pleaded with respect to Ms Chen, in pars 3 and 4 of Exhibit T. 31After noting the allegation that the arrest was unlawful because the officers failed to inform Ms Chen that she was under arrest and failed to provide her with reasons for her arrest, the trial judge continued (apparently by way of statement of a submission rather than a finding of fact) at [193]: "Because the arrest of Ms Chen was unlawful, it did not provide legal justification for her subsequent removal from the premises, which constituted a total physical restraint, amounting to the tort of false imprisonment." 32It was true that while inside the premises Ms Chen was not told she was under arrest, nor given a reason for such a step. Those omissions, in the particular circumstances, provided some support for the view that she was not in fact arrested. The main basis for taking a contrary view was that the "custody management record" prepared at Newtown Police Station by Sergeant Vlachos (not one of the officers who attended at Dickson Street, Newtown) identified, under the heading "arrest details", a place of arrest as King Street, Newtown and the "original grounds for detention" as "remain on inclosed land". Ms Chen was not, however, charged with such an offence. 33Although the information recorded by Sergeant Vlachos was no doubt provided by one or both of Officers Jacques and Cleofe, their statements, dated the following day, did not suggest that Ms Chen had been arrested on the premises. No other evidence supported the view that Ms Chen was arrested at that time, rather than being "physically removed" from the premises. The real question is whether the police were entitled to lay hands on Ms Chen for that purpose, without explaining the source of their authority and what they were doing. 34In principle, any exercise of authority by an agent of the State seeking by physical force to relocate a person against his or her will, should, where practicable, be preceded by an explanation and justification. While physically controlling a person to prevent the on-going commission of an offence may constitute a lesser exercise of power than an arrest, there is still an infringement of the person's liberty; further, in a case such as the present, it is desirable that officers should make clear that Ms Chen was not being arrested, if that were the case. (b) the arrest of Ms Chen in Dickson Street 35The power of a police officer to arrest without warrant extends to the situation where the officer is satisfied that the arrest is reasonably necessary in order to stop the person committing or repeating an offence: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(1)(b). 36Having taken Ms Chen outside the real estate agency, the police alleged that she then tried to push past them to re-enter. Because, presumably (the matter was not clearly explained in the evidence) they believed that she would be committing a further offence under the Inclosed Lands Act if she re-entered the premises, they sought to prevent her doing so. In the course of that process, they asserted that she assaulted Officer Cleofe, by striking him with her hand on his arm, while swinging her arm. 37At some point Ms Chen was removed 30 metres up Dickson Street, away from the real estate agency, although how that happened is not clear from the account given by the police. (It was not clear where the police vehicle was parked.) Because Ms Chen was struggling and kicking with her legs in all directions, Officer Cleofe undertook a "leg sweep" which caused her to fall to the ground, "on her backside": Tcpt, p 872. He then turned her onto her stomach, pressed his knee onto her lower back and sought to handcuff her hands behind her back. 38Hearing Ms Chen's screams, her mother and Mr Forwood came towards the struggling group. According to the police account, Ms Xuan tried to intervene and was physically restrained by Constable Jacques, who pushed her against a metal fence beside the footpath and held her there until assistance came and Ms Xuan was arrested. 39According to the police, Ms Chen repeatedly screamed, "I will shoot you! I will shoot you! You can't do this! I will shoot you!". On her version, what she shouted was "I will sue you!". 40Officer Cleofe said that when Ms Xuan and Mr Forwood arrived on the scene, Mr Forwood approached him whilst he was trying to handcuff Ms Chen and said, "What are you doing, she's only little". He replied, "Mate, please get back". He was then pushed by Mr Forwood, at which point he took out a capsicum spray, at which Mr Forwood retreated. However, Mr Forwood came towards him again and knelt down beside him and Ms Chen and said, "What are you doing? You're being excessive. She's only little, let her go!". He heard Ms Chen say to Mr Forwood, "Take photo for evidence! Take photo for evidence!". Mr Forwood then grabbed Ms Chen's handbag and took out a digital camera. At that point Officer Cleofe radioed for police assistance. 41Both Officer Jacques and Officer Cleofe agreed that the call for assistance had been made "around the time Chris Forwood was taking photos": Tcpt, pp 812(15) (Jacques) and 904-905 (Cleofe). 42There was an available inference that Ms Chen was indeed shouting "I'll sue you" and not "I'll shoot you". However the trial judge stated at [170]: "In one sense it is irrelevant whether Ms Chen was actually screaming, 'I will sue you', because what is more important is the fact that she was yelling and screaming at them, a fact that is more consistent with the police version than hers, and that they believed in the heat of the moment, that she was threatening to shoot them. For all they knew, given the violence she employed, she may well have had a gun." 43The last sentence involved an element of hyperbole: they did not give evidence that they believed she had a gun. Further, there was an available inference that her direction to Mr Forwood to take photos "for evidence" was consistent with her threatening to sue, rather than (less plausibly) shoot. 44There was also an inference available that the response of the officers, which coincided with the taking of the photographs, demonstrated a concern as to what might be shown on the photographs. 45The causes of action set out in Exhibit T (par 1) asserted a wrongful arrest, either in the real estate office, or "by physically restraining" Ms Chen in Dickson Street. It is not in dispute that Ms Chen was arrested in Dickson Street and, accepting that the officers had power to arrest her to prevent her returning to the real estate office and that she was struggling to get back into the office, the only issues were whether she was told what they were doing, if that course were reasonably available to the officers, and whether they used no more force than was reasonable in the circumstances. 46In Ex T par 4, the particulars of the assault and battery were "punching her in the back, throwing her down on the ground, attacking her by kneeing her in the small of her back, and throwing her into the police van 'like a ball' ". 47The trial judge rejected the complaint that police used excessive force to restrain Ms Chen because he accepted their description of the events in Dickson Street and rejected the evidence of the applicants. 48Ms Chen suffered a significant bruise on her back just above her right hip and a further area of bruising in the small of her back. The trial judge rejected the suggestion that she had been punched in the back and accepted that she had been brought to the ground by "police officers employing standard police techniques to subdue and control a person resisting and acting in a dangerous and violent manner, and a knee placed in the small of her back as described by Officer Cleofe": at [179]. (c) rejection of the applicants' evidence 49Ms Chen was found to have given evasive and untruthful evidence with respect to money in her bank accounts and the statements made to psychiatrists. However, the complete dismissal of her evidence as to what happened in Dickson Street, while a conclusion open to the trial judge, was not one which flowed inevitably in the circumstances. In summarising the evidence of Ms Chen, little was made of her evidence with regard to the events in Dickson Street. First, the trial judge stated that "[i]t was only in cross-examination that Ms Chen conceded that she had gone to Laing and Simmons on the previous day ...": at [32]. That was not correct: she gave evidence in chief to that effect: Tcpt 39(25). In any event, it is not clear why that was characterised as a belated concession, if the evidence had not been led from her. 50The trial judge also said that she "denied that the police officers then spoke to her for several minutes" before escorting her from the premises: at [33]. That may have been so, but the police evidence did not support that conclusion either. Officer Jacques said that both she and Constable Cleofe went up to Ms Chen and said that she had to leave. When asked what happened next she said that they "gave her a few moments to do as we had asked her to do": Tcpt, p 762(18). The examination-in-chief continued: "Q. When you say gave her a few moments was it two minutes, five minutes? A. No, a matter of seconds. Q. What happened next? A. She wasn't moving, she wasn't going anywhere, so I grabbed her by the arm, Darryl grabbed her from the other arm and we picked her up. Irene was pulling back, she was resisting in coming with us. She kept on repeating, 'You can't do this to me, I will be homeless.' " 51In the following paragraph the trial judge noted that Ms Chen had denied struggling when she was pulled to her feet in the real estate office. She said she was "restrained firmly ... I couldn't do anything": at [34]. The real estate officer, Ms Farah, suggested that when the police spoke to her, "she started yelling and screaming": Tcpt, p 726(17). She saw the police open the door and take her out of the office and, when asked to describe what she observed stated: "I don't really remember everything. I remember the screaming and I remember them holding her hand and opening the door and escorting her out. But they didn't lift her or anything like that." 52In cross-examination Ms Farah was asked (p 738(16)): "Q. Well, you got the police there to remove her? A. Yes, I asked them to ask her to leave, yes. Q. When she was told she began to cry? A. Yeah. Q. Now, there is no screaming by her when she was in your premises was there, contrary to your evidence before? A. I don't recall. She was actually crying." 53Various findings were open on this evidence, but Ms Chen's account was not in itself clearly inconsistent with other evidence. The police did not say she was screaming at that time and, it appears, Ms Farah changed her evidence in that regard. Nobody suggested that the police spoke to her for several minutes. Officer Jacques suggested that she was struggling and resisting, but Ms Farah did not see significant elements of resistance. Although Ms Chen said she was lifted off her feet, and therefore could not effectively resist, that evidence was, no doubt, inconsistent with that of the police and Ms Farah. (d) arrest of Ms Xuan 54So far as Ms Xuan was concerned, the trial judge set out aspects of her evidence relating to the actions of Officer Jacques when she was restrained. The passage set out at [58] included the following: "This female police officer was very fierce. Not just that she grabbed hold my jewelleries like this, she also pushed against my chest here, the throat, so that I could hardly breathe, and you could see I could hardly even open my eyes. All of the strength of her hands were onto my chest. I was nearly feeled I could nearly be suffocated..." 55It is clear that Ms Xuan was referring to what was shown in a photograph - "you could see". It is also important that she was giving her evidence through an interpreter. 56In cross-examination she described the action of Officer Jacques again as "she's using both of her hands against the both of my hands, together, against my throat and I couldn't breathe.... [Y]ou can see the photos. ... The photo can tell everything." (Judgment at [65]; Tcpt, p 684(34)-(45).) 57The trial judge also referred to evidence concerning tearing Ms Xuan's handbag from her. He stated at [66]: "Ms Xuan was cross-examined about the allegation that Constable Jacques had torn her handbag from her (ASC [4]). It will be recalled that Ms Xuan in fact left her handbag in the car when she rushed off after hearing her daughter screaming. In cross-examination, Ms Xuan said: 'That was a bag that belonged to my daughter and, when my daughter was on the ground, the bag was on the ground and I picked it up. There was nothing wrong with that. Why they should tear the handbag...' " 58The next paragraph ([67]) commenced with the statement that "Ms Xuan also resiled from the allegation that she was thrown to the ground ...". If the use of "also" implied that she had "resiled from" evidence she had given with respect to the handbag, that finding was not available. In the course of cross-examination, objection was taken on the basis that certain matters put to her had not been part of her evidence-in-chief. In dealing with that issue the trial judge stated, at Tcpt, 685(45): "I'm just going to change [paragraph 5] in Exhibit T ... [by] striking out the words 'by throwing her' [and inserting 'pushing her up' against a fence]. I don't recall her saying in evidence that [they] tore the handbag away from her either. That was in the statement of claim but it was not in the evidence. I'll leave it there. It's part of the allegations but there's no evidence to support it at the moment." 59Perhaps surprisingly, counsel for the State then asked, "Can I put it to you that the female officer, Jacques, did not tear the handbag from you?" After some debate about the proper translation of the word "tear" Ms Xuan said "She did": p 686(33). After an interruption the evidence continued as quoted by the trial judge, namely identifying the bag as that of her daughter. Ms Xuan had never given evidence that she had her own handbag with her. Rather, she had said that she had left her own handbag in the car when she heard her daughter scream (Tcpt, p 631(15) - being evidence-in-chief). 60That she had a handbag in her hand, which was forcibly removed from her should not have been in doubt. Constable Jacques gave evidence-in-chief to that effect at p 774(20): "She struggled, with a bag in her hand, and we tried to put some handcuffs on her. That took a - a little while. She didn't want to let go of the bag. I don't know - she wasn't understanding what we were telling her ...". 61At [160], the trial judge stated that "Ms Xuan also gave factitious evidence about the bank accounts, her handbag (which she in fact left in the car) ...". The phrase "factitious evidence" identified a deliberate concoction: but there was no basis for saying that her evidence about either handbag was a concoction. There was no evidence as to how the reference appeared in Exhibit T (the pleading). Further, Ms Xuan did not give evidence about "the bank accounts", if that was a reference to Ms Chen's bank accounts. So far as her own financial affairs were concerned, the primary element of special damages claimed by Ms Xuan was loss of income in the sum of $41,250. She gave evidence in support of that claim at p 676(45). It appeared from an exchange in the course of cross-examination that she was not asked to provide documents to support such a loss and a question to the effect that she could have done so was rejected: p 711. The cross-examination was, in effect, limited to the proposition that the loss of income sustained was from choice rather than as a result of any injury she suffered at the hands of the police: Tcpt, p 712. 62The trial judge made further findings adverse to Ms Xuan in the following passages: "[185] However, many aspects of Ms Xuan's evidence were unsatisfactory. I have already referred to her evidence about the bank accounts and her handbag (which she in fact left in the car). In addition, the evidence Ms Xuan gave about her employment and loss of income, and her reasons for being in Australia, were exaggerated and misleading. But it was her account of the events on 20 February 2008 and 21 February 2008 that ultimately persuaded me that her evidence was not to be preferred to that of the two police officers. [186] Ms Xuan obfuscated, exaggerated and prevaricated about the episode in the street outside Laing & Simmons. I was particularly unimpressed by her insistence that Officer Jacques had grabbed her by the throat in an attempt to strangle her, referring to the photographs to support the assertion, when on any objective assessment of the photographs in Exhibit B, that was not what happened." 63It is not necessary to repeat the difficulties noted above with the findings at [185]. With respect to the further statements in [186] the evidence set out above and relied upon by the trial judge did not support a finding that she had stated (let alone "insisted") that Officer Jacques "had grabbed her by the throat in an attempt to strangle her". Ms Xuan did refer to the photographic evidence and said she was describing what appeared in the photographs. Her evidence in that regard may have involved "exaggeration", but not obfuscation, and no reference was made to an instance of prevarication. Deletion of images on camera 64It is necessary to consider the applicants' claims with respect to the deletion of the photographs by the police officers against the background of the material discussed above. The applicants' case was that Constable Jacques removed Ms Chen's camera from her handbag when it was on the station counter at Newtown Police Station. Constable Jacques agreed that she got the camera out because she wanted to have a look at the photographs: Tcpt, p 830(30). She did not simply view the photographs at the counter, which was covered by CCTV, but took the camera to an adjoining "custody office" which was out of sight of the applicants and the CCTV. 65Constable Cleofe gave evidence-in-chief that he had viewed the photos but did not touch the camera and did not delete any photos. He was asked by the judge (Tcpt, p 890(15)): "Q. Why, if you saw the photos why would you [not] impound the camera as evidence in relation to the charges? A. I just [didn't], your Honour." (The parties accepted that the transcript should be read with the inclusion of the words in square brackets.) 66Officer Cleofe's statement, which was part of Exhibit 27 at the trial, included the following paragraphs: "38. While in police custody, Ms Chen and Ms Xuan was [sic] continuously screaming inside the custody area, making it extremely difficult to speak with them. 39. Constable Jacques took out Ms Chen's digital camera out of her handbag to view the images that were taken at the scene. I could hear Ms Chen and Ms Xuan continuously yelling at me and Constable Jacques to place her camera back. Constable Jacques and I viewed the images from the camera and with the direction of Senior Sergeant Vlachos, I saw Constable Jacques place the camera back inside the handbag." 67Images taken from the CCTV footage show Officers Cleofe and Jacques with the handbag at the counter in the police station, with the two applicants in an area behind the officers, which could constitute cells but which had the door open. As Officer Jacques took the camera out of the bag, Ms Xuan left the bench on which she was sitting with her daughter and came into the main area and stood alongside Officer Jacques at the counter. At that stage she appeared to be remonstrating with Officer Jacques, whereupon the two officers take hold of her and escort her back to the cell, where the door was then shut. The camera remained on the counter during that episode. Officer Jacques then returned to the counter, picked up the camera and took it into the room described as the custody office. After turning back to look at (or speak to) Ms Xuan, Officer Cleofe followed Jacques into the custody office. He stood by the door and appeared to be watching, for a period, what was taking place in the room. Officer Cleofe left the area for a short period. Officer Jacques remained in the room for approximately 1 minute 20 seconds before she returned to the counter, apparently still holding the camera. 68Ms Chen gave evidence that when she was granted bail and was free to leave the police station, she was given back her bag and asked to check her property: Tcpt, p 71 and 197. While at the counter, she scrolled through the images on the camera and found that the pictures taken in Dickson Street were missing. Mr Forwood also gave evidence that he checked and found them missing. 69There was further evidence with respect to the images on the camera. Mr Arimudin (Tom) Tjanaria, an elder of the Presbyterian church which Ms Chen attended, came to Newtown Police Station at about 7pm on the evening of 21 February 2008: Tcpt, p 306(40)-(50). He was shown the camera in the police station and agreed that five photographs which were in evidence were not on the camera when he viewed it. Mr Tjanaria's business was a photographic company of which he was managing director: he had experience with digital cameras: Tcpt, p 298(30). He gave evidence as to how a picture was deleted, noting that deletion did not erase the picture but rather put it in a "waste paper basket": Tcpt, p 311(2). Mr Tjanaria later recovered the photos, which were tendered in evidence: Tcpt, p 564. 70A "property docket" identified Ms Chen's property, which was returned to her when she was released on bail. The night shift manager at the station, Sergeant Jackson, agreed that Ms Chen had complained to him that photographs had been deleted from the camera by police officers whilst she was in custody. She also complained that her copy of the lease was missing. Her complaints were recorded on the "property document" in the following terms: "My agreement with Laing Simmons real estate agent has been taken (when I asked the policeman to put back, he didn't) and the policeman has deleted the photos which the policeman [?] was pressed me down and hurt me on the ground." 71(It is possible that a word has been omitted in the photocopying on the right hand side of the page where the question mark appears.) However, as Sergeant Jackson acknowledged, the substance of the complaint was that some photos had been deleted from the camera when it was brought into custody: p 857(5). Sergeant Jackson also agreed that it was not proper police practice for arresting officers to take a camera with photographs of the arrest or the altercations out of the sight of the accused and look at them in another room: pp 859(25)-860(10). 72The respondent submitted that Mr Tjanaria "resiled from his evidence that he looked at the camera at the counter in the charge room with [Ms Chen]": written submissions, par 26. The first reference given in support of that proposition is the following exchange in cross-examination (Tcpt, p 323 (18): "Q. Correct me if I'm wrong, but is it your evidence today that whilst you were present at the counter with Ms Chen, you looked at the camera, did you? A. Yes. Q. You physically took the camera into your hands and you scrolled through it at that time, did you? A. Yes." That is support for the contrary proposition to that proposed in the submission. 73The second passage relied upon is in the following terms (Tcpt, 324(48)): "Q. You're not sure now, are you that you looked at the camera when you were standing at the counter with Ms Chen, are you? A. Can't recall that. 74The third passage was as follows (Tcpt, p 325(23)), but it is necessary to read the preceding question and answer: "Q. Can I suggest to you that whilst Ms Chen is scrolling through the camera, she has got the screen, I'm talking about the rear of the camera - she's looking at the screen of the camera? A. Mm. Q. And you're standing to her left and can I suggest to you, you are not looking at the screen as she's scrolling through it? A. I cannot remember." The fact that Mr Tjanaria could not remember if he had looked at the images while Ms Chen had the camera was not inconsistent with his evidence that he himself had held the camera and scrolled through the images. 75The trial judge dealt with this issue in three brief paragraphs, somewhat dismissively. The first passage occurred after considering whether Mr Forwood was correct when, in his evidence in Court, he affirmed that he thought Ms Chen was screaming "I'll shoot you". The trial judge stated at [169]: "I have no reason to doubt Mr Forwood's sincerity as to his recollection, but at the end of the day I could not comfortably satisfy myself that the police officers and Mr Forwood were not genuinely mistaken about the words Ms Chen used. In the same sense, I was similarly unable to comfortably satisfy myself that the two police officers deliberately deleted the photos from Ms Chen's camera. So neither of these allegations played a part in my assessment of credit." 76The second passage appeared at [188] in the following terms: "The plaintiffs placed great store on their allegation that the police officers deleted the photographs from Ms Chen's camera. But all that was established was that it was possible for one of the officers to have done so. But it was equally possible that someone else did so. It was also conceivable that the photos, assuming they were deleted, were deleted accidentally, by the plaintiffs, by Mr Forwood, or by one of the visitors who attended at the police station to assist the plaintiffs. Nor as a matter of logic was it to the advantage of the police officers to delete the photos. The pictures were not inconsistent with the police account. As I have already said, I was unable to comfortably satisfy myself that the two police officers deliberately deleted the photos from Ms Chen's camera. Thus, the allegations that they did so played no part in my assessment of credit." 77This passage is remarkable in a number of respects. First, it appears to make no finding as to whether the photographs were in fact deleted from the camera. In order to deal with the applicants' submissions, it was necessary to make such a finding. Secondly, Mr Tjanaria's evidence was that it was quite difficult to delete images "accidentally". Thirdly, no reference was made to the unequivocal evidence that Ms Chen immediately complained of the deletion. Fourthly, the images ultimately formed an important part of the applicants' case and gave no obvious support to the police version of events. Fifthly, Constable Jacques deliberately removed the camera from a place where her actions could be observed (contrary to proper police practice) and had the opportunity to delete the images. Sixthly, it was further necessary to consider the force of the applicants' submission that it was only when Mr Forwood took the photographs that the officers, independently and contemporaneously, decided to call for assistance. That submission was not addressed in the reasons. 78Consistently with the cross-examination of Mr Tjanaria, the respondent submitted that it had not been established that he looked at the camera in the police station. The State's submissions continued (par 27): "Those that did look at the camera could not have established that the photographs had been deleted. The most that could be established was that those people did not see any photographs of the incident in Dickson Street. That did not mean that the photographs had been deleted. The photographs may have been there but missed. They may have been deleted but through no fault of any person." 79That submission is untenable. There is no doubt that the photographs were on the camera and were viewed by Officers Cleofe and Jacques in the police station. They were, so far as the evidence reveals, the last five photographs to be taken on the camera. In a sense they were not "deleted" because they remained available to be recovered from the digital record. However that was not what was meant by "deleted" in the present circumstances: what was clearly meant by the exchanges in the course of the trial was that they had been removed from that part of the camera which allowed photographs to be viewed on the screen. That Ms Chen, looking at her own camera, did not see the photographs demonstrated on the balance of probabilities that they had been deleted. The mere possibility that they could have been deleted through "no fault of" any person is unpersuasive. 80Ms Chen gave unequivocal evidence that she looked at the camera at the police station, found that the photos taken in Dickson Street were not there, complained to Sergeant Jackson and wrote the material noted above on the property docket. The cross-examination accepted the proposition that she took the camera from the bag when it was returned to her at the counter in the police station and scrolled through it: Tcpt, p 198. There was no challenge to her evidence that she looked for the photographs and that they were not there. It was not put to her that she deleted the photographs herself nor was it suggested that she could have deleted them accidentally. (There was, however, evidence that that was not easy to do.) Nor was it put to Ms Chen that her complaint was in some way fabricated. 81On the evidence given at the trial, the images were on the camera and were viewed by Officer Cleofe before he left the custody office, at which stage the camera was in the possession of Officer Jacques. The evidence did more than establish that it was "possible for one of the officers" to have deleted the photographs: there was no evidence that the camera was in the possession of anyone who knew of the photographs, had any motive to delete them or had the opportunity to delete them, other than Officer Jacques. On the balance of probabilities, the appropriate conclusion was that they had been deleted by Officer Jacques. That she took the camera to a place where she could neither be seen by the applicants, nor her actions recorded by CCTV, give support for such a conclusion. As indicated by Sergeant Jackson, her conduct in taking the camera into another room in order to view it was not in accordance with proper police practice. 82The suggestion that, "as a matter of logic", it was not "to the advantage of the police officers" to delete the photographs was not a persuasive consideration one way or the other. The photographs demonstrated that significant force was being used by Office Cleofe in restraining Ms Chen on the ground and also by Officer Jacques in holding her mother against the fence with her arms against her chest, just below her neck. The photographs were capable of suggesting that excessive force was being used by the officers, depending upon what level of violence they could establish had been proffered by Ms Chen or her mother. Whether the judge thought that the pictures were "not inconsistent with the police account" was not necessarily the determining factor as to whether it was likely that Officer Jacques had deleted the photographs. That depended on what view she (and possibly Officer Cleofe) took of the matter. There was no "police account" at the time the photos were thought to have been deleted. The officers' statements were prepared later. 83There can be no doubt that if Officer Jacques did delete the photographs, her credibility would have been seriously affected. She gave evidence-in-chief in the following terms (p 781): "Q. Did you look at the camera at all? A. Yes, I did. Q. Did you take the camera into another room? A. Yes, I did. Q. Did you look at what was contained in the camera? A. Yes, I did. Q. How long would you say you had the camera in your hand for when you were in the other room? A. Not very long at all. Q. Did you delete any photos when you were in the other room? A. Never. Q. Did you delete any photos off that camera at all? A. Never. Q. Did you observe any other police officer in that station delete any photos? A. No." 84In cross-examination, Officer Jacques accepted that two of the photographs which she was shown did not depict Ms Xuan assaulting her: p 813(30). The cross-examination continued: "Q. What do they depict? A. Me pushing her against the fence. Q. In your statement, nowhere do you mention that you pushed Ms Xuan against the fence, do you? A. Not in those words, no. Q. Not in any words do you mention the word 'fence' or 'pushing' or anything like that? A. Not 'push' and 'fence', no. ... Q. You did not put in your statement anything about you pushing or holding Ms Xuan against the fence because you knew that the photograph showing you doing that had been deleted from the camera. Is that right? A. That's a lie." 85Shortly thereafter, she was cross-examined about the steps taken in removing the camera from the bag, and taking the camera into another room: p 830. The cross-examination continued at p 831(15): "Q. What you did, you and Constable Cleofe, is you took the camera into another room. Right? A. Yes. Q. And had a look at them there? A. Yes. Q. Would you have a look at B1, 2, 3, 4, 5 [the images] again? A. Yes. Q. You saw those photographs? A. Yes. ... Q. Did you see any other photographs on the camera? A. No, I don't think I did. ... Q. In the room you took them into, there was no CCTV. Is that right? A. I believe so. Q. You deleted those photos? A. I never deleted those photos. Q. Constable Cleofe deleted them? A. He never deleted those photos. Q. Did any other police look at the camera there? A. I think there was someone else behind me but I can't remember - or two other people. Q. That person deleted them? A. No. Q. The invisible man deleted them? A. I don't know who - if they were ever deleted. Q. Are you denying that those five pictures were deleted? You know they were, don't you? A. That's her saying that. I'm saying I didn't delete them. She's saying they were delete - they were deleted. Q. In the police station did you hear people say that the photographs had been deleted? A. No. Q. No-one? A. Not - not a police officer. Q. Did you hear a non-police officer say the photos had been deleted? A. I think at the end Irene [Ms Chen] had claimed something about some photos being deleted, something along those lines. Q. Didn't some gentleman come along to have a look, some Chinese gentleman? A. There were a few people there. I don't know who was who. Q. You heard someone say that they'd been deleted? A. No, I think Irene implied that to the custody manager at one point - at one point. Q. Did she say the photographs had been deleted? A. I don't - I don't remember. I know something of an allegation had come up towards the end. Q. Did you have another look at the camera to see whether that was true or not? A. No, because she had her camera. Q. You realise it's a serious accusation against you or other police? A. Absolutely I understand. Q. Brought about by your own conduct in taking the camera out of the bag, out of that room, into another room. Why did you do that? A. I wanted to look at what was on that camera. Q. Once you saw those photographs, you knew you were in deep trouble, didn't you? A. There is nothing wrong with the photos and my conduct in the photos. There is nothing I did wrong. Q. Those photographs of you show appalling conduct against an elderly woman by a police officer, do they not? A. No, it doesn't. It shows me doing my job." 86This evidence left little room for mistake. There was no suggestion in chief, in cross-examination or in re-examination that Officer Jacques had accidentally deleted the photographs. If she did delete them, her evidence was false. 87No doubt the benefits of seeing a witness provided the trial judge with an advantage not available to this Court. However, that advantage tends to be less with an experienced witness, such as a police officer, than with other sections of the community. It is sufficient for present purposes to say that the trial judge, in the judgment, did not grapple with the very real issues raised by this evidence. The "objective evidence", as it is sometimes called, spoke strongly in favour of the proposition that the images were deleted by Officer Jacques. 88Once that conclusion is accepted, the significance for the outcome of the trial is not in doubt. Taken in combination with the findings upon which doubt was cast above, relating to the force used in arresting both Ms Chen and Ms Xuan, the judgment must be set aside and, unfortunate as it may be, there must be a retrial. It is not possible for this Court to assess issues of credibility which were at the heart of the case presented by Ms Chen and Ms Xuan, with respect to significant aspects of which, particularly in relation to Ms Chen, there were justified adverse findings. 89It is understandable that the trial judge was not minded to accept significant aspects of the evidence relevant to the seriousness of the harm done to Ms Chen and to her mother. The evidence before this Court does not establish that, if liability were proven, the possible damages would reach $100,000 in respect of either applicant. For that reason, leave to appeal is required: given the nature of the circumstances, it is appropriate that leave be granted to each applicant. 90The Court should make the following orders: (1) Grant each applicant leave to appeal. (2) Set aside the judgment and orders in the District Court. (3) Direct that the costs of the first trial be in the discretion of the judge on the retrial. (4) Order the respondent to pay the applicants' costs in this Court. 91MEAGHER JA: I agree with Basten JA. 92TOBIAS AJA: I agree with Basten JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2014