District Court New South Wales Medium Neutral Citation: Makri v State of New South Wales [2015] NSWDC 131 Hearing dates: 11, 12 and 13 May 2015 Date of orders: 19 June 2015 Decision date: 19 June 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the defendant. (2) Plaintiff pay defendant's costs. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days. Catchwords: TORT - assault - plaintiff and his associate arrested by police after being found in possession of a motorcycle reasonably suspected of being stolen - whether the placing of handcuffs on the plaintiff as part of that arrest constituted an unreasonable use of force and thereby constituted the tort of assault and battery on the plaintiff - damages Legislation Cited: Evidence Act 1995 (NSW), s 66 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230 and 237 Police Act 1990 (NSW), ss 6 – 8 Uniform Civil Procedure Rules 2005 (NSW), rr 12.6 and 42.35 Cases Cited: Adams v Kennedy (2000) 49 NSWLR 78 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Attorney-General for NSW v Perpetual Trustee Company Ltd (1954) 92 CLR 113 Cassell & Co Ltd v Broome [1972] 2 WLR 645 Chen v New South Wales [2014] NSWCA 41 Clavel v Savage [2013] NSWCA 775 Container Terminals Australia v Huseyin [2008] NSWCA 320 Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 DPP v Gribble [2004] NSWSC 926 Hallam v Ross (No 2) [2012] QSC 407 Hill v Richards [2011] NSWCA 291 Innes v Weate [1984] Tas R 14 Johnson v Phillips [1975] 3 All E R 682 Jones v Dunkel (1959) 101 CLR 298 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Lamb v Cotogno (1987) 164 CLR 1 Lane v Holloway [1968] 1 QB 379 LVMH Watch & Jewellery Australia Pty Ltd v Lassanah [2011] NSWCA 370 Maile v Rafiq [2005] NSWCA 410 Mason v Demasi [2009] NSWCA 227 Mastronardi v State of New South Wales [2009] NSWCA 270 Mather v Smith [2014] QCA 65 McCarthy v State of New South Wales [2013] NSWDC 247 McIntosh v Webster (1980) 43 FLR 112 New South Wales v Ibbett (2006) 229 CLR 638 New South Wales v Tyszyk [2008] NSWCA 107 R v K (1993) 118 ALR 596 R v XY (2010) 79 NSWLR 629 Silver v Dome Resources NL [2005] NSWSC 265 State of New South Wales v McCarthy [2015] NSWCA 153 State of New South Wales v Zreika [2012] NSWCA 37 Tilden v Gregg [2015] NSWCA 164 Woodley v Boyd [2001] NSWCA 35 Texts Cited: -Click here to enter text. Category: Principal judgment Parties: Plaintiff: Christopher Makri Defendant: State of New South Wales Representation: Counsel: Plaintiff: Mr L Nicholls Defendant: Ms G F Mahony Solicitors: Plaintiff: Kapsis & Associates Defendant: McCabes Lawyers File Number(s): 2014/224089 Publication restriction: None Judgment The plaintiff's claim for damages 1. By statement of claim filed 30 July 2014, the plaintiff brings proceedings for assault and battery against the defendant arising from the circumstances in which he was arrested and charged on 19 June 2013. The circumstances leading to the plaintiff's arrest 1. At 11.30 p.m. on 19 June 2013, Constables Bailey and Martin observed a white van double parked outside 17 Ocean Street, Bondi. As their vehicle approached, they observed a person jump in, on the passenger side, and the van quickly drove away, travelling north and left onto Martins Avenue. They followed the vehicle around the block and activated lights and sirens for the van to pull over. The van pulled over, but started rocking and bouncing, suggesting frantic movement inside. The officers were unable to see into the vehicle as all windows were darkly tinted. Constable Martin watched as Constable Bailey approached to give a breath test, noted "two heads on board" (i.e. two persons; Exhibit 4) and called for back-up. Constable Bailey then called out "4 heads on board", so Constable Martin asked the radio operator to speed up the back-up vehicle (Exhibit 4). 2. Constable Bailey called out that there were "four heads on board" after the driver, a Mr Nedanovski, told him, in response to his inquiry as to what was in the back, that "two mates" were in the van. He was already suspicious of the occupants because of his earlier observations of the departure of the van, and its violent shaking after stopping. The driver told him he had come to Bondi for a chicken burger. Constable Bailey replied that the shops had long since closed. He asked why the van had been double-parked and driven off on police approach, to which the driver replied that the police vehicle looked suspicious. 3. An "alco test" was administered to the driver and was negative. Registration checks had revealed that the van was registered to a woman living out of the area. Constable Martin asked the plaintiff why they were in the area. He said they were "here to pick up a job" as he carried out motorcycle recovery maintenance and general repairs. When asked for his licence he produced a proof of age card and said he was a disqualified driver. Constable Martin asked if he had been driving and the plaintiff denied this. 4. The police asked to search the vehicle. The plaintiff agreed and unlocked the side door. When police asked who owned the motorcycle in the van, the plaintiff claims he said he had "received a phone call from the ad" from "Colin", whose surname he could not remember. (According to Exhibit 4, the plaintiff said he did not know who owned it, and that he had been told to pick it up "by email" as "it won't start".) 5. A back-up vehicle containing Constable Johnson and Probationary Constable Taylor had by then arrived. The plaintiff and Mr Nedanovski were asked to leave the van, which was searched. The officers located a motorcycle in the back of the van leaning against a mattress but otherwise unsecured. Police contacted the owner of the van, who said the plaintiff had her permission to use it. Police also contacted the owner of the motorcycle who confirmed it was supposed to be parked "out front" (Exhibit 4) and had been taken without his permission. Searches confirmed that Mr Nedanovski was unknown to police but that the plaintiff was known to police, was unlicensed, and on a bond. Both the plaintiff and Mr Nedanovski were arrested, handcuffed and conveyed to Waverley Police Station where they were charged. 6. The handcuffing of the plaintiff, and not his arrest, is the subject of the plaintiff's claim for damages. Between 11:45pm, the time recorded for his arrest, and until shortly after 11:55pm, which was the time when the plaintiff arrived at the police station, the plaintiff was in handcuffs. His handcuffs were removed shortly after he entered the police station. 7. The placement of the handcuffs is described in the statement of claim as follows: "20. Constable BAILEY then took hold of the Plaintiff and cuffed the Plaintiff's hands to the rear of his body with metal handcuffs. 21. The Plaintiff at that time felt discomfort in his upper arms, shoulders and wrists by the manner and position in which the handcuffs had been applied. 22. The action of Constable BAILEY was an unreasonable, unlawful and/or excessive use of force upon the Plaintiff to affect [sic] his arrest." The issues in these proceedings 1. The claim is limited to the following two issues: 1. Whether the application of handcuffs to the plaintiff by Constable Christian Bailey on 19 June 2013 was an unreasonable use of force and thereby constituted the tort of assault and battery on the plaintiff; and, 2. If the application of handcuffs to the plaintiff by Constable Christian Bailey on 19 June 2013 constituted the tort of assault and battery, what are the damages to be awarded to the plaintiff, in particular is the plaintiff in addition to general (compensatory) damages entitled to aggravated damages and / or in addition exemplary damages. The damages claimed 1. Particulars of "injury, loss and damage" are set out in the statement of claim as follows: "Assault and battery 29. As a result of the matters set out above in paragraphs 20, 21 and 22 the said acts constituted an assault and battery of the Plaintiff by reason of which the Plaintiff has suffered injury, loss and damage PARTICULARS OF INJURIES, LOSS AND DAMAGE 29.1 Discomfort to both upper arms, shoulders and wrists 29.2 Emotional injuries including shock, anxiety, mental anguish and distress 29.3 Humiliation and embarrassment 29.4 Loss of self-esteem and dignity 29.5 Loss of trust towards Police officers 29.6 Loss of enjoyment of life 29.7 General damage." 1. Aggravated compensatory damages and exemplary damages are also claimed. The defendant's application to withdraw an admission 1. At the commencement of the hearing the defendant brought an application to withdraw an admission that the plaintiff was handcuffed with his hands to the rear instead of in front of him. 2. Rule 12.6 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides: "12.6 Withdrawal of matter in defence or subsequent pleading (1) A party raising any matter in a defence or subsequent pleading may withdraw the matter at any time. (2) Despite subrule (1), a party may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court. (3) A withdrawal under this rule is to be made by filing a notice of withdrawal stating the extent of the withdrawal. (4) If the withdrawal is by consent, the notice under subrule (3) must be accompanied by a notice from each party whose consent is required by subrule (2) to the effect that the party consents to the admission or other matter being withdrawn in accordance with the notice of withdrawal." 1. The circumstances in which a party may withdraw an admission in pleadings are explained in Maile v Rafiq [2005] NSWCA 410 at [54]ff. 2. Counsel for the defendant told the court that in February 2015 the defendant realised an admission to the paragraph of the statement of claim referring to the handcuffing from the rear had been inadvertently made. However, the plaintiff was only informed of the application a week before the hearing. No explanation was provided as to why no notification was given prior to the day of the hearing: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [99]-[102]. 3. The plaintiff submitted that the prejudice was considerable. The plaintiff's co-accused, Mr Nedanovski, would be required to give evidence, in circumstances where, in the few short days before the defendant's legal representatives had notified this proposed change, they had not been able to locate him. 4. The lateness of the application to withdraw the admission, the unsatisfactory explanation for the delay, and the prejudice to the plaintiff mean that leave to withdraw the admission should be refused: Silver v Dome Resources NL [2005] NSWSC 265. 5. I note, in relation to the issue of prejudice, that the defendant was instructed to withdraw the application in the event that I considered the only way that the prejudice could be rectified was by the adjournment of the hearing date. As the only basis upon which I would have been prepared to permit the defendant to withdraw the admission would have been on such a basis, my findings on this issue are only briefly noted. 6. I add, for completeness, however, that while Constable Bailey was cross-examined about the handcuffing of the plaintiff from the back, and his evidence that the plaintiff was handcuffed to the front was challenged, the only significance of this evidence was the plaintiff's account of the additional discomfort he felt while travelling in the police van for the 5 minute trip to the police station in that his hands were behind him and instead of in front of him. Other procedural issues 1. Both parties failed to comply with the "Notice to Practitioners" by the Judicial Registrar on 9 December 2014. This meant that neither party prepared a chronology, a list of issues or a schedule of damages at all, let alone serve these documents on each other and provide a copy to the court in the allotted period prior to the hearing. 2. The Judicial Registrar signed and dated a copy of this Notice and placed it in the file, a step taken after the Notice was handed to the parties. This Notice, created on 7 February 2014, is provided to all parties in proceedings which are being set down for hearing, and all parties in this court are expected to comply with them. Neither party did so, apparently in the belief that the Notice does not apply to intentional torts. That is not the case. I also note that neither party sought discovery, although such a step is frequently of benefit to both parties in litigation involving claims against police officers. The evidence and documents in these proceedings 1. Determination of the issues in dispute requires credit evaluations of the evidence of the witnesses. Both counsel drew my attention to asserted inconsistencies in the evidence of the opposing party, submitting that (in the case of the plaintiff) the police evidence had been tailored and/or reconstructed, and (in the case of the defendant) that the plaintiff had told lies. 2. I first take into account that these events occurred nearly two years ago, and all of the witnesses had memory problems of varying degrees (see, for example, the plaintiff, T 61; Constable Bailey, T 139-140; Constable Martin, T 150-151). I note the NSW Court of Appeal's direction to trial judges as to the value of evidence that is "fresh in the memory of the person who made the representation" (s 66 Evidence Act 1995 (NSW)) and eye witness events: R v XY (2010) 79 NSWLR 629 at [71] per Whealy J. The Court of Appeal in Chen v New South Wales [2014] NSWCA 41 at [15] has explained the fact finding obligations of a trial judge when determining whether issues such as the present, namely whether the police officers reasonably believed that the use of handcuffs was reasonably necessary. 3. I also take into account the differences in the roles of the respective parties. Counsel for the plaintiff submits that the plaintiff, unlike the police officers called to give evidence by the defendant, is not a "professional" witness. He is an ordinary member of the community and suffers from a condition of anxiety which makes inconsistencies in his evidence understandable. This is to be contrasted with the evidence of the police, which should be clearly scrutinised in relation to errors and inconsistencies, as police are trained to give evidence and are under strict obligations both to comply with the relevant provisions of the New South Wales Police Force Handbook (Exhibits B and C), as well as the obligation to give truthful evidence on oath. 4. However, I should also take into account the nature of police duties, which involves work at speed, snap decisions and considerable paperwork. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J noted that in such circumstances it would be "altogether unfair" to police officers to "make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances". Additionally, although in the context of personal injury proceedings, the Court of Appeal has warned against the over-analysing of notations made by ambulance officers and other emergency services providers which may be written in haste, where the primary concern has been the resolution of the situation rather than the keep of an accurate note of it: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23]. 5. Should the records kept by police officers be accorded the same leeway? While police who have failed to keep records in accordance with statutory obligations have been excused by the court in LVMH Watch & Jewellery Australia Pty Ltd v Lassanah [2011] NSWCA 370 at [127] – [128] (where the police noted only the names of the complainant and the persons accused of attempted store robbery), courts generally have a much higher expectation that police will keep accurate and comprehensive records of their activities than triage staff or ambulance officers, due to the statutory obligations under which police operate. 6. In considering the conduct of the police officers who investigated these activities, I must take into account both the statutory and common law regimes which require police officers to perform their duty. Counsel for the plaintiff draws my attention to the obligations of police officers to comply with, inter alia, the NSW Police Force Handbook (Exhibits A and B), ss 6 – 8 Police Act 1990 (NSW) and s 237 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"). However, neither the changes in police organisational and operational activities nor the ever-increasing statutory obligations under which they perform these duties alter the fundamental character of the police officer's obligations: Attorney-General for NSW v Perpetual Trustee Company Ltd (1954) 92 CLR 113 at 120 – 121; New South Wales v Tyszyk [2008] NSWCA 107 at [106] – [111]. 7. The performance of that duty remains "to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury" and "there is no exhaustive definition of the powers and obligations of the police" (Johnson v Phillips [1975] 3 All E R 682 at 685). Police powers are not restricted to cases where actual violence or imminent flight are involved: Director of Public Prosecutions Ref. No. 1 of 1993; R v K (1993) 118 ALR 596 at 601. In DPP v Gribble [2004] NSWSC 926 at [24] – [25] Barr J noted Johnson v Phillips with approval, and also set out the following extract from the decision of Cosgrove J in Innes v Weate [1984] Tas R 14 at 21: "There are two difficulties in this concept of duty. One is that it cannot be stated in other than general terms — the range of circumstances in which the duty to act may arise is too wide, too various, and too difficult to anticipate for the compilation of an exhaustive list. The other is that the existence and nature of the duty depends upon a reasonable assessment by the constable of any given situation. That assessment may be examined in the courts and held to be right or wrong … It is important that a constable should have a wide discretion to act swiftly and decisively; it is equally important that the exercise of that discretion should be subject to scrutiny and control …" 1. When determining issues of credit and making findings of fact, I must have regard to the following: 1. I should identify unchallenged evidence as to the circumstances leading up to the arrest and the application of the handcuffs, including the conduct of the person charged at the same time as the plaintiff, Mr Nedanovski. 2. I should take into account the contemporaneous documentation that is available, as well as the evidence in the Local Court proceedings. 3. Where there is conflicting evidence between witnesses in these proceedings, I should identify which evidence should be accepted, and set out my reasons for doing so. 4. If there is internal inconsistency or inherent implausibility in the evidence of the witnesses, I should identify that evidence and explain whether it is relevant to issues of credit. The evidence of the plaintiff 1. The plaintiff, a 36 year old man who is currently self-employed, was working as a mobile phone technician, soldering circuit boards and performing minor repairs. He had another form of "employment or hobby" (T 13), namely repairing motorcycles. This included pickups if someone had an accident, general repairs and servicing (T 13). He had an advertisement on "Gumtree" and would receive requests to perform work by SMS, email or phone call, generally by phone call. His advertisement was not tendered (T 14). A couple of days before the incident in question, he told the court he "received a phone call from a gentleman named Colin" (T 14 line 24) who said: "I have a motorcycle, it doesn't start, it's either an ignition problem or an electrical problem," and he said to me if I was able to repair it. I go "well I can't repair it," I go, "it needs to be picked up, taken back and repaired" (T 14 line 36-39) 1. He told the court he replied, "That's fine, I can't do it at this present stage, I'm working at the moment". Arrangements were made for him to go and pick up the motorcycle on Wednesday after work, and the plaintiff wrote down the details on a piece of paper (Exhibit A). 2. Having organised time with this gentleman, he rang a friend, Mr Robert Nedanovski, and asked him to do him "a favour". This was because, at the time of the phone call being made, "I never had a licence, I was disqualified" (T 16). Mr Nedanovski said he was finishing work late and they would have to go after he finished work, which was approximately 10 to 10:30pm. Mr Nedanovski went to the plaintiff's home in Lakemba, where "we grabbed the work van" (T 16) and drove to Ocean Street, Bondi, arriving at approximately 11:15pm. According to his evidence: "Q. When you arrived there what did you see? A. Outside the address we seen a partially uncovered motorcycle, black Honda CPR1000, and the cover was three quarters up and it had actual dirt debris, so there was an indication that this was sitting there for a fair while. Q. Was there anything about what you saw at that time relative to the conversation that you had with the person Colin? A. Yes, he gave me the address like every description that he gave me was 100%. Q. In your mind on seeing that bike what did you believe? A. I believed at the time that everything was legitimate, all his details, his particulars, every single description and everything that he gave me was correct. Q. What did you do? A. At that time once I seen everything there, Robert Nevanoski [sic] pulled forward, so he put the bicycle at the rear of the van, the actual ramp came out and we actually pushed the bike in inside the back of the vehicle, then the ramp was put back inside again, the actual backdoor was closed and we were standing outside for a good ten minutes having a general chat and having a cigarette. Q. Standing outside of what? A. Outside of the van, sorry, on the left hand side. Q. After that ten minute period what happened then? A. I jumped into the passenger side of the vehicle, Robert went to the driver's side, he started the actual van, and we drove off, we got to the end of Ocean Road, turned left, then turned left again into the first street, which was approximately about a minute later or two minutes later, and there was an actual vehicle behind us, then the blue and red lights went on, and then the actual siren went off and we pulled over." (T 17) 1. The police officer who got out of the vehicle walked up to the driver's side and asked Mr Nedanovski for his identification, saying this was a random breath test. According to the plaintiff, the conversation then was as follows: "A. Robert pulled out his ID, gave it to the gentleman, and the gentleman said to him "What are you doing here?" and I answered as "We're here to pick up a job" and then he goes, "What do you do?"." (T 17-18) 1. The plaintiff replied "I do motorcycle recovery maintenance and general repairs" (T 18). 2. When asked what happened next, the plaintiff stated: "A. He went to the actual van, he came back, he grabbed my ID, and as we were slowing down it was bumpy and I handed him my ID and I said to him, you know with the utmost respect, I go "Officer I'm disqualified, I will show you my proof of age card." He turned around and goes "Ha ha," that was the police officers actual words, he goes "So you were driving?" and I go, "I wasn't driving then and I'm not driving now"." (T 18) 1. According to the plaintiff, when the police officer returned, the following occurred: "A. He came back to the vehicle and the police officer said, "Is there anyone else in the back vehicle?" and I go, "No, there's just me and actual Robert" and he goes, "Are you sure?", I go, "Yes". He goes, "We seen [sic] the van move earlier before" and he goes, "Do you mind if I search the vehicle?" I go, "Yes of course, you're more than welcome to," and I reached back with my left arm and unlocked the door." (T 18) 1. After the plaintiff unlocked the door the police officer opened it and said "What's this?" The plaintiff replied, "This is a job that we had to pick up from Ocean Street or Road in Bondi" (T 19). The police officer asked, "Whose bike is this?" and the plaintiff replied, "I received a phone call from the ad and the person who spoke to me his name was Colin". 2. When asked if there was other conversation at that time, the plaintiff said (T 19 line 16), "I can't remember". 3. The plaintiff did not have any particulars or information about Colin on his person. He did not have the piece of paper on which he had written the information that was tendered. He told the court that he did not have Colin's particulars, but he "had them on somewhere else [sic]" (T 19 line 22). 4. All that the plaintiff could recall from the following events was that there was another officer in the police van behind, there was then another police vehicle which contained two police officers, one of which was a woman, the original police officer came back to the van and asked to search it, the police searched him and they were "just standing there" and "just waiting" (T 20 lines 16-17). The plaintiff did not resist or give any indication he was unwilling to comply with the police in relation to any part of the proceedings. He heard the police receive a telephone call but he could not remember hearing what was said by the police officer. After the telephone call, the police officer put the phone back in his pocket and said "Christopher, you're under arrest for possession of a stolen motorcycle" (T 21). 5. The plaintiff's reaction was: "I was shocked, like and then I just ‑ excuse my language, your Honour ‑ I said, "What the fuck?", I was, like, shocked that this was happening." (T 21) 1. The plaintiff did not attempt to evade arrest and "stood in the same spot that whole time", adding "I was just anxious, upset, just ‑ everything. My mind was going crazy. It was ‑ distressed. I was taken aback" (T 21). 2. The plaintiff described what happened next as follows: "Q. What happened, for you to feel that way? A. The police officers turns around and goes, "I'm going to have to handcuff you". I go, "That's understandable". He grabbed my left arm, grabbed ‑ pulled his handcuffs out, twisted my arm behind my back and my palm was facing out. He applied his handcuffs ‑ one of the handcuffs on to my left wrist, grabbed my other arm, twisted it behind me and placed the handcuffs on that one where my palms was facing out not in, like this, so it was outwards." (T 21) 1. The plaintiff said he was suffering "mild discomfort" in that his shoulder and wrist were sore. He was then put in the back of the van where he remained for about 5 minutes before the van left to the police station. He thought that from the time the van was stopped until the time that he was handcuffed was about 20 to 30 minutes (T 22). He remained in the van for 3 to 5 minutes (T 22) and he thought the trip to the police station took between 5 to 8 minutes (T 23). 2. As a result of being in handcuffs, this trip to the police station, "raised the [anxiety] levels slightly higher, because I couldn't place my hands out, discomfort to my shoulders, as my hands were behind me, I couldn't lean to anywhere as they were taking the corners, bumps, whatever was there, speed humps." (T 23). 3. When he arrived at the police station he felt "humiliated" and "sore". He then described what happened at the police station as follows: "Q. What happened when you arrived at the police station? A. Once I arrived at the police station, the charging officer downstairs said to me, "Christopher, can you please walk into the actual cell" and was told to turn around for my handcuffs to be released. Q. When they were taken off you or released, how did you feel then? A. I had a big relief. I was rolling my shoulders, rubbing my actual shoulder because I've had a previous injury, but, yeah. Q. Did you say anything to anybody about how you felt at that time after the handcuffs‑‑ A. No, I was just relieved that I had them off." (T 23) 1. The plaintiff said he was then in the cell for "a couple of hours" (T 23 line 49). He was then interviewed by police. He says he participated in a recorded interview and, just as he had answered their questions courteously and helpfully when stopped by police, he had done his best to answer their questions fully and frankly, including supplying the police officers with the details he had in his phone of the person who had asked him to collect the motorcycle. 2. The plaintiff, in both examination in chief and cross-examination, stated that at all times he had responded politely and frankly to police questions. Some indication of what he told Constables Martin and Bailey on the night in question can be obtained from his answers as recorded two hours later in the ERISP (Exhibit 2). The plaintiff's provision of information to police in the ERISP 1. The plaintiff told police that the motorcycle came to his possession because of his repair expertise; he was "given jobs to do" (question 47 of the ERISP) and he was "supposed to go on pickup this motorcycle". He repaired those bikes at a house in Casula owned by a friend named Chris, although he was unable to recall the address beyond the suburb and general location (questions 51 to 56). For "minor stuff" such as a bike not being able to start (questions 58 to 59), he would "pick the bikes up" (question 58). He received a phone call stating that "the bike needed to be repaired" (question 59) by a man named "Colin". He was asked: "Q65. All right. Does Colin have a last name? A. First time caller. Q66. O.K. So, someone you don't know called you on your mobile and said what? A. That's not the first time I've had that person call me. Q67. O.K. You just said he was a first time caller? A. Well, first time, mate, for him to do a job. … Q71. Gottcha. So, a person called Colin, you don't know his last name? A. No sir. Q72. How do you know him otherwise, like? A. Just of [sic] the phone. Q73. O.K. … Q75. And his name is Colin and Colin says, Go somewhere and pick up a bike. A. I was told that the motorcycle does not start and it has an ignition issue. Q76. Yeah. A. And the bike has been in that position for the last God-knows, he said to go to the same spot as always. Q77. O.K. A. The same spot as always. Q78. Yeah. A. He gave me the address. Q79. Yeah. A. And that was it. And I've gone in to pick up the bike. Q80. [02:13:09] O.K. And how did you know you had the right bike, like when you pulled up there? A. Because I was told --- Q81. Yeah. A. --- that it's outside this… it was the actual brown roller door and the garage is separate to the actual building. Q82. O.K. so you have directions by description. Did they give you a number to pull up at 'cause it's a pretty long street? A. No." 1. The plaintiff said he was unaware of police being behind his vehicle was he was on Ocean Street (question 85). He said he had gone back there where he had picked up the bike from (question 88) and when asked why (question 89) he replied: "A. Something was telling me, Get the house number, get the actual number. Q90. [02:14:30] O.K. A. So that's when we went back. Q91. Yeah. A. I, and then I go, Forget it, let's go. I just cracked the shits and… Q92. So you went back to get the number but changed your mind? A. Yes. Q93. O.K. So, Colin, only known as Colin, calls you on the phone, gives you a description of a building and you reckon you probably, we got, run into you at 11.00, you'd been there an hour before so 10 o'clock at night on Ocean Street, North Bondi, you managed to find a place simply because it had a detached garage from the main building and that's how you knew you had the right bike. A. He explained everything. Q94. Yeah. He didn't give you the Rego of the bike? A. No, Nothing at all. He told me --- Q95. Yeah. A. --- it was a black Honda. Q96. O.K. so a black Honda outside a garage detached from the building somewhere on Ocean Road, Bondi. Is that what you're saying? A. Yeah." 1. The plaintiff was asked what he was instructed to do after he repaired it: "Q99. Yeah but like repair it and deliver it or what? A. Repair it and give him a phone call to, when it's ready to pick up." 1. The plaintiff had written down the number on a piece of paper. 2. The plaintiff went on to say he would have left the bike in the van overnight and would have worked on it either at the premises at Casula or at his own home (questions 112 to 114). When asked what tools he had he said he had "a little key set, a real small one and that's it. A screwdriver set" (question 115). He told police officers he had not been doing mechanical work for the previous six to seven months (question 119), that he was not a qualified mechanic (question 120). 3. The plaintiff was aware that picking up motor cycles in this fashion was likely to look suspicious to police: "Q125. O.K. All right. Chris, this is pretty irregular that a person you've never met, who has your number, tells you to go pick up a bike, do you see how that could go wrong? A. Yeah. I've had it happen twice before." 1. The plaintiff went on to explain that Mr Nedanovski was just a friend who was driving him there as a favour. He denied that the vehicle was rocking because he and Mr Nedanovski had changed seats (questions 138 to 140) but did not deny that the vehicle rocked. He said all that had happened was he had "turned around to see who was behind us" and that Mr Nedanovski turned around at the same time. Was the plaintiff co-operative and compliant? 1. The plaintiff's case is that he was an innocent agent to what he agrees was the "unlawful" (written submissions, paragraph 15) removal of the motorcycle. While he does not dispute that, in the "limited" circumstances known by the police, they had reasonable grounds to suspect he had committed a criminal offence, and were justified in arresting him, the use of handcuffs was an excessive use of force to effect and maintain the arrest, as for the 20 – 30 minutes he had been in the presence of police he had been entirely cooperative and compliant with all requests made of him. 2. The plaintiff certainly answered all the questions he was asked, permitted the van to be searched and stood by the roadside with Mr Nedanovski without attempting to flee the scene. Were the fullness and frankness of his answers sufficient to ally police concerns? 3. In his evidence, the plaintiff sought to demonstrate how helpful he was to police by stressing how he answered their questions as best he could. I do not accept this was sufficient, for three reasons. The first is that the information he gave to police was implausible and likely to raise suspicion. The second is that evidence he has given in this court contradicts many of those statements in material respects, which must cast doubt upon the plaintiff's account of the conversation and events of the night in question. Some examples are as follows: 1. As is set out above, the plaintiff told police on the night of his arrest that he did not know the surname of Colin, and that he was not given an address at which he would find the motorcycle, only the name of the street. However, Colin's surname and an address for the motorcycle appear on Exhibit A, which was tendered as corroboration of the information the plaintiff provided to police. The plaintiff's explanation for not remembering this information or providing it to police on the night in question is not satisfactorily explained. 2. While he answered the police questions with apparent courtesy, his story to them was implausible from beginning to end, as well as being inconsistent with his evidence to this court. He admitted to police he did not have the registration number, or the motorcycle keys, for the motorcycle he was supposed to repair. Nor was his evidence in this court improved by the information in Exhibit A. According to Exhibit A, the only identification of the motorcycle he had was a "Black CBR". 3. The plaintiff told the court there were ramps at the back of the van to allow the motorcycle to be rolled into the van. This is contrary to the evidence of Mr Nedanovski in the Local Court (Exhibit 1), who said that he and the plaintiff lifted the motorcycle into the van. Additionally, the motorcycle was not tied down, and it could have been damaged when the van turned around corners, which would hardly be professional conduct from a motorcycle mechanic. 4. Although the plaintiff claimed to be using the "utmost respect" to truthfully answer the police officers (T 86), he failed to contradict the lies told by Mr Nedanovski about being in the area to have a chicken burger. 5. Although the plaintiff tendered Exhibit A as proof of his bona fides, counsel for the defendant draws to my attention the failure to produce any Gumtree advertisements or other documents to prove his work as a repairer. The plaintiff claimed to have shown Constable Taylor a Gumtree advertisement on his mobile phone. The plaintiff's claim that he advertised his mechanical abilities on Gumtree would be easily established by the tender of any advertisements (even recent ones), proof of payment or photographs of his workshop. 6. The plaintiff in cross-examination denied being nervous when the police pulled over the van, and the officers' description of his as anxious (relevant to whether he was a flight risk) was challenged. Not only is this inconsistent with the observations of the police present on the scene, but it is inconsistent with the plaintiff's opening remarks at the commencement of the ERISP. 1. Independently of the plaintiff's answers, there were other reasons for police to have concerns when they first approached the van. As the police officers' notebooks set out, they had been sufficiently alarmed by the van's tinted windows and violent rocking after stopping for Constable Martin to call for back-up and, when they believed there were two more people in the van, to require that back-up urgently. The answers given by both men to the police were described by Constable Bailey as "odd" (T 96). For example, Mr Nedanovski initially claimed to be in the area to have a chicken burger, not to collect a vehicle for repair. The repair explanation story came after Constable Bailey pointed out that all the shops were shut. Both men's explanation of the reasons for being double-parked in Ocean Street and leaving suddenly when police arrived were specifically pointed to by Constable Bailey as being of concern (T 96). 2. While Mr Nicholls submitted that only a bold person would tell a story of coming to collect a motorbike when it could so easily be checked, the plaintiff's explanation for being in the area needs to be seen in context of the entirely different explanations proffered by the person driving the vehicle. The unsatisfactory answers of Mr Nedanovski made the plaintiff's different explanation seem implausible. 3. The police evidence that the vehicle shook violently from side to side was not challenged. The plaintiff's claim that the vehicle shook from side to side because he and Mr Nedanovski were looking over their shoulders to see the police is, I find, implausible. The plaintiff was challenged as to whether he had been driving and had changed seats quickly to avoid detection. As a whole, the plaintiff's conduct at the scene was such as to invite suspicion that, notwithstanding his apparent cooperation, his answers were not merely implausible but untruthful, in that some form of illegal activity was taking place, and that it was up to the police officers to ascertain what that conduct was. Conclusions concerning the plaintiff's credibility 1. The implausibility of the plaintiff's answers to the police officers on the night in question, particularly after the owner of the motorcycle provided information that the motorcycle had been taken without his permission, must rob the plaintiff of the value of his apparent compliance with police requests for information and to search the vehicle. Police concern for officer safety was clearly a significant factor at the commencement of their enquiries, given the circumstances in which there was a call for backup. Once that impression was created, police caution was understandable. They did not know what they were dealing with up until the time of arrest. While ultimately the relevant offence related to the transporting of a stolen motorcycle, prior to that time police did not know what to expect. The responses by the plaintiff to police, far from being helpful, were one of the reasons for police caution. I am also satisfied that the plaintiff said "we're fucked" (being words of desperation potentially indicative of fleeing) on being told he was arrested, and that these words, if said (or even misheard) would additionally have alarmed the police as to potential flight or danger. 2. I am satisfied that the plaintiff is not a witness whose evidence should be accepted unless he is corroborated. This brings me to the question of the whereabouts of Mr Nedanovski, who did not give evidence in these proceedings. The absence of Mr Nedanovski 1. Counsel for the defendant, in her written submissions, asks me to draw a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298) by reason of the failure of the plaintiff to call Mr Nedanovski (written submissions, paragraph 47). The plaintiff did not address this issue. 2. Mr Nedanovski gave evidence in the Local Court on 12 February 2014. The plaintiff's statement of claim was filed on 30 July 2014 and these proceedings were given a hearing date on 9 December 2014, only ten months after the Local Court proceedings. According to the plaintiff, Mr Nedanovski was a good friend. He was on sufficiently good terms with the plaintiff to be permitted to drive the plaintiff's former girlfriend's motor vehicle. He told the Local Court that he had known the plaintiff for "10 plus years" (Exhibit 1, T 69). The plaintiff had repaired his car, his mother's car and had his motorcycle serviced without charge (T 69-70). There is no evidence that he is ill, overseas, or unavailable. 3. Counsel for the plaintiff indicated, as one of his reasons for objection to withdrawal of the admission concerning the placement of handcuffs, that in the week before the hearing his client had been unable to locate Mr Nedanovski. However, that submission was based on the shortness of time in question, and did not go as far as saying that, given time, Mr Nedanovski might be located. Nor was there any information as to what steps to locate Mr Nedanovski had been taken. 4. I am satisfied that in the circumstances I should draw a Jones v Dunkel inference in relation to Mr Nedanovski. The evidence of the police officers 1. Constables Martin and Bailey, the police who were present at the time of the arrest, were called to give evidence. Probationary Constable Taylor and Constable Douglas, who were at the police station, were also called. Constable Martin 1. Constable Martin was the senior officer on the night. This meant he was "the primary decision maker, especially if there's a moment where you might disagree or be unsure, that's where the senior officer has to make the decision" (T 146). 2. Constable Martin was driving the caged truck along Ocean Street North when he saw a white van halfway between Bondi Road and Martins Avenue. It was double parked in the traffic lane, not in the parking lane (T 146) and it was stationary (T 147). Ocean Street is "one of our darker streets" (T 147) as the street poles are further apart, there are high rise buildings and there are a lot of trees on the street. As a result, it is one of the darker streets to move around on at night (T 147). 3. The left front passenger door of the van was open and Constable Martin saw it closed, "pulled in by an arm" (T 147). The van drove north on Ocean Street North, turned left on Martins Avenue and then left again on Penkivil Street. The police followed the vehicle while Constable Bailey ran a check on the registration of the vehicle, with the result that it was registered to a female owner in a suburb in the far western suburbs. The main observation that Constable Martin made, however, was that the windows were "extremely darkly tinted at the rear". This was relevant because of risk factors: "Q. Did that play any role in determining any risks that may arise? A. Definitely. We are always trained and I train officers to be wary of any vehicle they can't see into because they just don't know what's in there." (T 148) 1. Constable Martin made a decision to pull the vehicle over and run a random breath test on it. Constable Bailey, the passenger, got out to do so in accordance with general practice. It was not general practice for the driver to get out when a random breath test was being involved unless there were multiple passengers (T 149). However, as Constable Bailey was getting out of the police vehicle with the alcohol breathalyser in his hand, Constable Martin observed the following: "Q. Upon the van stopping, can you tell the Court what was the next thing that occurred? A. Constable Bailey had the alcolizer in his hand and he started getting out of the car to conduct the breath test. I was watching the van and it suddenly started rocking from side ‑ from left ‑ side to side. And it was rocking ‑ it was an unusual way ‑ vehicles just don't suddenly do that. It indicated significant movement in the vehicle and I couldn't see in the vehicle. I was alarmed, I told Christian to stop and wait for me and I grabbed a torch and I went with him. Q. How long did the van rock from side to side for? A. I'd say about ten seconds. Q. In terms of the rocking, did that have any significance for you when assessing risk? A. Absolutely. I didn't know how many people were in the vehicle which is an issue of risk. I couldn't see into the vehicle, is an issue of risk. But the possibilities when a vehicle is rocking, (1) is I've actually never seen another vehicle do that when I've pulled it over so I was really worried as to what they could be doing. As per our training, suspicious movement inside a vehicle could mean preparing access to weapons or hiding something or preparing to do something that's at a risk to us, so I was wary of all of that. Q. In your experience could the rocking have been a result of the van being on uneven ground? A. No, because the vehicle was stationary, so the ground itself would have had to move to move the van. Q. Could the rocking from side to side be as a result of two people in the front of the van turning their heads to the side and behind to look at the police vehicle behind? A. No, no, it was rocking, it was violently moving. It was, you know, it was shaking side to side. Turning your head wouldn't move your car like that." (T 149) 1. Constable Bailey approached the driver side and spoke to the driver. Constable Martin described this as follows: "Q. Did you take any action when Constable Bailey approached the driver's side? A. Yes, two things happened and it's been two years now I don't remember the sequence, but he spoke to someone in the van and he turned to me and said, "four heads on board"." (T 150) 1. This was an indication to Constable Martin that as well as the two persons whom he could see sitting in the van, there were another two persons who must be in the back. This meant that "they were in an area I couldn't see into" (T 150 line 22) and as a result Constable Martin called for another vehicle to come and "back us up". He was asked why this was necessary and he gave the following evidence: "Q. Why was that? A. Safety again. Even if there were only heads on board it's not unwise to get another two officers there if you are not feeling comfortable. But with four on board it made it simply easier to make that assessment. Q. What were the factors that led to you not feeling comfortable upon having stopped the vehicle and gotten out of the vehicle? A. Well it still goes ‑ it goes all the way back to the tinted windows and the suspicious rocking of the van. They were ‑ those factors never went away. And so I wasn't comfortable the whole time." (T 150) 1. The backup police vehicle arrived shortly thereafter and Constable Martin went to speak to the passenger, Mr Makri (T 150-151). He asked Mr Makri to provide identification and he "provided a driver's licence that identified him" (T 151). A check was run and as a result of that check, he became aware that Mr Makri was a disqualified driver (T 151): "Q. Did any other warnings come up that you became aware of? A. Not at ‑ well, I was talking to Mr Makri and I think I didn't hear everything. I think I focused on the disqualified driver. There were other things said on the radio but I don't recall them. Q. Why was the disqualified driver of particular relevance to you? A. Well for me it would be one thing that would explain the sudden rocking of the van. The driver and the passenger if they were to swap would have had to crawl over and around each other to swap seats. It's not something people haven't done before, and that would've explained the rocking of the van. I asked Mr Makri about that and he said that he hadn't, so." (T 151) 1. Constable Martin did not recall being told by the plaintiff that he was a disqualified driver. While talking to him, he observed a motorcycle in the back of the van. Constable Martin was concerned there were other people in the vehicle: "Q. You've approached the car and to the best of your recollection what did you say and what did Mr Makri say? A. Well in some form I asked him for identification. He provided it. I was concerned there were other people in the vehicle. I asked him, "Is the door locked", because I wanted to see inside the rear of the vehicle. And I don't recall what he replied but I opened the sliding door and I saw that there was no people in the rear of the vehicle. Q. When you opened the sliding door, what did you observe? A. I saw a sports bike motorcycle and it was leaning over to the side on its right side on a mattress. Q. On observing that, did you have any conversation with Mr Makri or Mr Nevanoski about the bike? A. I asked Mr Makri who owned the bike and he said he didn't know. I asked him, well, again I don't know the exact words but I wanted to know why the bike was there. Apparently, according to Mr Makri, he repairs bikes. Q. Is that the words that he used? A. It was only the gist I got from it, I can't remember the words he used but he mentioned getting an email to pick the bike up. Q. You say getting an email, did he make reference to other modes of correspondence when receiving jobs to pick bikes up? A. Yeah, phone calls as well. Q. In terms of the particular bike in the back, did you have any discussions about what led him to having that bike in the back of his van? A. At the side of the road I don't remember his exact words. Yeah, he had words that it was being picked up to be repaired because it wouldn't start. Q. At that point what occurred next? A. At that point I wasn't satisfied that they had a legitimate reason for having this motorcycle. I asked them to get out of the vehicle ‑ so both persons to get out of the vehicle so that I could search it. Q. Did you in fact undertake a search of the vehicle? A. Yes, I opened the rear ‑ the rear door of the van lifts upward ‑ I lifted that up so I could see the ‑ well I could see the same motorcycle lying on the mattress. And also get the registration of the bike. I examined the front cabin of the van as well. There were ‑ it was a bit of a mess but there were various tools, screwdrivers, pliers, socket style spanners, wires, cigarette boxes and various papers. Q. Did you find in the course of your search any tyres or ropes that could have been used to secure the bike? A. No. Q. When you observed the bike, was it in fact secured to anything? A. No, it was just lying on its right side onto the mattress. Q. Did you have a look to see whether or not there were any ramps in the van that would assist in loading the bike into the van? A. I didn't look for a ramp but I certainly didn't see anything. There was a mattress and a bike. Q. Did you have a look under the mattress for any further equipment? A. I lifted the mattress ‑ if there was anything right up the front but I couldn't see, but I only lifted the mattress partially because there was a motorbike on it and I didn't want to move it, so I looked I would say under half the mattress ‑ the rear half of it. There was nothing there. Q. You said that you obtained the rego number of the bike, what occurred next? A. I called, I think it was Waverley Police Station, but I called one of our two local stations, Bondi or Waverley, and asked them to make inquiries with the ‑ to try and identify the owner and get in touch with him. Q. Where were you standing when you made that phone call? A. On the footpath towards the rear of the van. Q. Is it the case that you ultimately received a reply to that inquiry? A. Yeah, Senior Constable Cook called and said she'd just gotten off the phone with the owner, he insisted he left it outside his property on Ocean Street north and that no‑one had permission to take it." (T 153-154) 1. During this time, Constable Martin had the opportunity to observe Mr Makri and he described him as follows: "A. Yeah, because everything I did when I was on the phone I stayed facing them. They both the gentlemen stood on the footpath, they generally spent the time looking at the ground, occasionally looking around. They were pretty silent. I don't recall them saying anything." (T 154) 1. He made similar observations of Mr Nedanovski: "Mr Nevanoski looked at the ground and looked around a lot. In my ‑ I observed he didn't ‑ wouldn't look me in the eye. I don't know if he looked other officers in the eye but he just made a lot of glances around. It was suggested to me that he was worried or just uncomfortable." (T 155) 1. Neither of them made eye contact with Constable Martin at any time, according to his evidence (T 155). 2. He then informed both the plaintiff and Mr Nedanovski that they were under arrest for theft of the motorcycle: "Q. What was the response? Well what response, if any, did Mr Makri or alternatively Mr Nevanoski make when that information was conveyed to him? A. Mr Nevanoski said nothing and Mr Makri just said, "We're fucked". Q. Upon saying that, what actions did you personally take? A. I placed Mr Nevanoski in handcuffs and I issued him his caution. Q. What was the reason that Mr Nevanoski was placed in handcuffs at that time? A. Risk to officer safety. Q. What were the risks that you were alert to at that time that supported you using handcuffs? A. Okay, well we were standing on a dark street, they had just been informed‑‑ NICHOLLS: Just slow down, please. Standing on a dark street. HER HONOUR: Just informed. Q. Yes, what were they just informed? A. They'd just been informed they were under arrest for a motor vehicle theft. So at this time they're facing what I would call a serious charge and according to my training and the training I give, this is the moment in which they have to either make their escape or submit. It's a dangerous moment and handcuffs are an excellent way of mitigating the risk that that brings." (T 155-156) 1. He was asked if he took into account the compliance of the plaintiff with police requests and he replied: "Sorry, the compliancy is not part of the decision. If they're noncompliant they are certainly more likely to be handcuffed. But risk is multiple factors. It's not just, "I'm arresting this person who's compliant. If they're compliant they're no risk to me" that's not the case at all. I have to take in the potential for what could happen. If I fail to take in that potential and get assaulted, I could be killed, relieved of my firearm and other persons could be hurt." (T 157) 1. He said that this was not a hypothetical risk but based on "both my training and my experience. I've been bashed into hospital by a gentleman who didn't warn me he was going to attack me" (T 157). 2. He went on to explained at T 158: "I've experienced violence before from persons who were previously compliant and that added to my assessment that handcuffs reduce the risk that person will become violent and if they do become violent it reduces how effective they are because they're in handcuffs." 1. He repeated at T 159 that he was "uncomfortable in that I'd had to approach a vehicle with tinted windows in which something strange had happened in that vehicle. And that was the rocking." 2. There is no evidence that there being any conversation between Constable Martin and Constable Bailey about handcuffs being placed on both of the persons being arrested. Constable Martin was at the point of handcuffing Mr Nedanovski when he saw that Constable Bailey had already taken out his handcuffs to place them on the plaintiff. Counsel for the defendant described this (T 162), and I agree, as being independent decisions resulting in the same outcome. The credit of Constable Martin 1. In his written submissions, counsel for the plaintiff has challenged the evidence of Constable Martin on the following bases: 1. Constable Martin accepts that at no stage had he told Constable Bailey to handcuff the plaintiff; 2. Constable Martin told the Local Court that he made no contemporaneous notes in relation to any conversations with the plaintiff. The copy of his notebook which is tendered and marked as Exhibit 4 (which is set out below) clearly shows that this is not correct. This must cast serious doubts upon all of his evidence; 3. Constable Martin acknowledged directives to record the exercise of a power, including handcuffing, including why it had been exercised (Exhibit B) and acknowledged that notwithstanding his earlier evidence that he trained police in handcuffing, he was unaware of this requirement at the time of making his notebook entry and this was why no such record was set out in it; 4. He was unable to recall if the plaintiff was handcuffed to the rear of his body by Constable Bailey. 5. Most importantly, he accepted that up until the very point in time of being told they were under arrest, there was no doubt both the plaintiff and Mr Nedanovski had been "completely and entirely compliant with police request [sic] whilst at that location" and that there was absolutely nothing the plaintiff had done up until that point of the plaintiff being arrested and handcuffed for him to believe that the plaintiff had the potential to kill, relieve him of his firearm and/or kill any other person (T 179). 1. I shall deal with each of these in turn Absence of discussion about handcuffs 1. Constable Martin told the court that he observed Constable Bailey take out his handcuffs and, without comment, did the same. Both police officers indicated their reasons for concerns of safety, and the fact that they took this step without prior consultation is indicative of their shared concerns. Failure to produce the notebook at the Local Court hearing 1. Counsel for the plaintiff did not point to any discrepancy between Constable Martin's notebook and the events in question. The matter proceeded in the Local Court on the basis that Constable Martin recorded material straight onto the computer. The fact that this was not the case is not a reason to distrust the evidence of Constable Martin. 2. This is readily demonstrated by the contents of Constable Martin's notebook (Exhibit 4), which records: "2319 – Vehicle check [details] White van spotted o/s 17 Ocean St Doors closed, van left from from double parked position upon our approached, quickly north and left on Martins Ave Stopped for RBT o/s 56 Penkivil St After van stopped, suddenly started rocking and bouncing, suggesting frantic movement inside Noticed rear end side windows extremely dark / illegal tint. Unable to see into rear of vehicle. BAILEY approached and spoke to the driver I watched as Bailey breath-test driver, driver handed him a licence. I gave radio our location, 2 heads on board, another car – please. Bailey turned to me and said, "4 heads on board". I asked radio to speed up back up vehicle. Concluded CNI on driver, NEDANOVSKI No info of interest ES15 Johnson/Taylor arrived to assist Asked passenger for ID Chris Makri, Photocard Saw a motorbike and no seats in rear of vehicle Asked driver if side door locked. A. Yes Asked, unlock it so I can see passengers. A. Yes. Opened side door saw a black motorcycle leaning against a mattress. Asked passenger Q. Is that your bike A. No. Q. Who owns it? A. I don't know, I just got the job to pick it up. Q. How did you get told to pick it up? A. The job comes in an email, we just come and deliver them. Q. Why did you pick it up? A. They said it won't start. IPE Given to search Conducted CNI on MAKRI Intel for motorcycle theft. Conducted check on [registration] motor cycle, belonged to [name and address] Ask S/Con Cook from Waverley PS to contact owner Cook cooked back, said, "I spoke to the owner, the bike is supposed to be parked out front, and he hasn't given anyone permission to move it." Placed MAKRI & NEDANOVSKI under arrest. Both cautioned MAKRI only said we're fucked MAKRI taken in ES15 NEDANOVSKI in ES18 Photo taken of scene [Signature] CST MARTIN 20/6/13 [Signature] CST BAILEY 20/6/13" Failure to note the reasons for handcuffing the plaintiff 1. I note the contents of Exhibits A and B, and that police officers are required to note the reasons for handcuffing the plaintiff. Constable Martin (who handcuffed Mr Nedanovski) does not refer to the placement of handcuffs at all. 2. While this is inconsistent with required police procedure, it does not mean that the police did not have a reason for handcuffing the plaintiff. As is set out above, I am satisfied that Constable Martin's calls for assistance are clear indications of his concern for officer safety, and that this was the reason for the placement of handcuffs. Failure to recall how the plaintiff was handcuffed 1. Given the absence of complaint by the plaintiff at the time, I do not regard this as evidence of unreliability of Constable Martin's evidence. Failure to take into account the plaintiff's compliant conduct 1. As is set out above, the willingness of the plaintiff to provide explanations for his conduct was insufficient to allay police concerns which predated those explanations. Inconsistent evidence in the Local Court 1. This is the main basis upon which the evidence of Constable Martin was challenged. 2. The plaintiff and Mr Nedanovski were charged with take and drive conveyance without consent of owner and steal motor vehicle. It is apparent from the transcript that many of the issues before me for determination were not the subject of evidence in the Local Court because they were irrelevant. For example, at T 4 of the Local Court transcript (Exhibit 1), Constable Martin gave evidence about his concerns when he first observed the vehicle and the following exchange occurred: "CONSTABLE MARTIN … I looked up and saw the van had started rocking from left to right, just, or sideways I should say, back and forth. That instantly alarmed me. NICHOLLS: Your Honour, the search of the vehicle is not in dispute in relation to Mr Makri's case. I understand it's not in relation to the co-accused's either. Issues of what was going through this officer's mind in terms of stopping or searching the vehicle are not relevant to a fact in issue. HIS HONOUR: All right, not in dispute. WITNESS: No problem, so continue, just take away the, don't mention being alarmed? PROSECUTOR Q. So as my friend just said-- A. Yes. Q. --the search isn't in issue. A. Okay. Q. So we don't need to know about what raised your suspicions. A. Okay. The, I wasn't actually suspicious, I was concerned for safety. The vehicle had tinted windows so I couldn't understand why it would suddenly be moving like that and there, that caused me just to tell Constable Bailey to stop. Okay?" 1. Significantly, the nature of inquiries made about the plaintiff and Mr Nedanovski, and the information received from the police station, was totally irrelevant to the criminal proceedings, and was additionally rejected as hearsay (T 5 of Exhibit 1). At T 9-10 (Exhibit 1), the following was put to Constable Martin by Mr Nicholls of counsel: "Q. Now you indicated in your evidence that Mr Makri was compliant. Is that correct? A. Yes. Q. Exited the vehicle without any problems? A. Yes. Q. Consented to a search? A. Yes. Q. Remained on the footpath whilst police were conducting their enquiries? A. Yes. Q. Was no danger to himself or others? A. It wasn't a consideration at the time. Q. Well it wasn't a consideration at any time, was it? A. Well yes it was. When the vehicle was rocking I had a safety concern. Q. But after you'd ascertained that there was no other persons in the vehicle or anything else that you may have been suspicious of-- A. Mm-hmm. Q. --there was absolutely nothing about Mr Makri that posed any danger to yourself or any other person, was there? A. No, I can't say that. I can say that I was still uncomfortable with him. Q. He hadn't attempted to run away or evade you at any time whilst he was out on the footpath? A. He did not successfully run away, no, and I have no idea that he attempted to. I imagine he would've been concerned but I don't know. But my concern was he certainly needed to be detained. I'm not really sure what you're-- Q. But you'd placed him under arrest? A. Yes. Q. Called for a truck? A. Mm-hmm. Q. There was nothing adverse about what he said; he didn't abuse you or show any signs of aggression at the time of his arrest, did he? A. I would say signs of aggression, no, but he appeared uncomfortable and agitated. Q. When you initially spoke to Mr Makri, your main concern was why the vehicle had been, as you've described it, rocking back and forth, wasn't it? A. No. When I saw the motorcycle in the back that concerned me, due to the time of the night, and the fact that we've had a lot of motorcycles stolen in Bondi. NICHOLLS: I object to that." 1. Nevertheless, some evidence of police concern about danger did emerge in the Local Court proceedings. Counsel for Mr Nedanovski asked about the rocking of the vehicle which Constable Martin had expressed "concerns" (T 10) about: "Q. And you still maintain that it didn't even cross your mind that the two drivers had merely swapped, the driver and the passenger had just swapped? A. At the moment when I'm sitting in the police vehicle and the vehicle in front of me is rocking, what I thought was that's a sign of danger, okay? Q. Is that when you decided that was dangerous? A. Yes." (T 19 of Exhibit 1) Conclusions concerning Constable Martin's evidence 1. As the senior officer, Constable Martin was in charge of what occurred. I am satisfied that his evidence is consistent with the records he made on the night in question, and accept his evidence that both he and Constable Bailey had concerns for officer safety following the circumstances in which the vehicle rocked violently shortly after it was stopped. Those concerns were not assuaged by the implausible answers given by the plaintiff to police questions. 2. As a witness, Constable Martin was impressive. He answered frankly and to the best of his ability, making concessions where appropriate. While I am asked to consider him as a "professional" witness, police officers are not computers, and not able to recollect all events, or keep all records properly. Submissions to the contrary are counsels of perfection and should not detract from the accuracy and consistency of his evidence in the witness box with the contemporaneous records of the night in question. Constable Bailey 1. Constable Bailey was the passenger in the vehicle being driven by Constable Martin. His notebook (Exhibit 3) records that at about 11.20 pm, while in Ocean Street Bondi, he "saw a white van parked on side of road, side sliding door and passenger door open". He went on to describe the events as follows: "Could see outline of a person hoping in to van, very dark area Vehicle parked outside 17 Ocean St North. As we stopped behind both doors shut quickly and vehicle started and then quickly headed North to the end of Ocean St North turning off into Martins Ave. Commenced radio check on Rego WSB 060 Checks revealed female owner from Granville Vehicle turned left onto Penkivil St and headed south accelerating quickly. Vehicle stopped about 80 metres short of Bondi Rd intersection with lights and sirens. The van started moving/shaking Unable to see what was going on inside van Van had very dark tint I have approached driver side window Introduced myself and explained reason of stop – RBT Driver produced licence; photo matched Name on licence Robert NEDANOVSKI of a Roselands address Driver breath tested, negative result Asked what he was doing? Replied that they were going to get a Portuguese Chicken Burger on Bondi Road I informed him that everything was closed as it was almost midnight I asked the driver why he was illegally parked in Ocean Street North, with the rear doors open? He said he thought it would be a good place to stop and have a smoke Asked why he drove off quickly when police pulled up behind him He replied "Thought we looked suspicious" I asked who was in the rear of the van and how many? Couldn't see thru tinted window. He said 2 mates. Relayed this to my partner who was standing at rear of van Partner had called for backup About 11:25pm CNI check conducted on NEDANOVSKI Second police car arrived and blocked off front of vehicle, updated them with situation My partner and I approached passenger side, identification obtained NSW Photo card, name Christopher Makri CNI checked Partner opened rear side door Seen motorbike, asked questions Both males asked to get out of vehicle and stand on footpath. Both POIs searched Vehicle searched Transport conducted on bike Waverley Station contacted and asked to contact owner of Bike. Found out bike was taken without owners' permission Both POI's placed under arrest, handcuffs applied in the front position, both cautioned. ES15 escorted MAKRI to WPS ES18 escorted NEDANOVSKI to WPS about 10 minutes later. Waited with ES14 at scene, vehicle towed about 15 minutes later. I attended Bondi Station [Signature] 20/6/13 CHRISTIAN BAILEY 02:30am" 1. An objection was taken to the tender of Constable Bailey's notebook on the basis that it was a hearsay representation (T 104). However, Constable Bailey was cross-examined concerning asserted inconsistencies in his notebook with his evidence in the Local Court and in these proceedings (see, for example, T 106, lines 32 – 33) so I permitted the tender by reason of s 45 Evidence Act 1995 (NSW). 2. Constable Bailey, in evidence in chief, described how he spotted the van double parked, saw someone jump in the van and drive away as they drew near, obtained information that the owner was a female living in a suburb well outside the area and, with Constable Martin, followed the vehicle using lights and sirens. He observed the shaking movements of the van and noted the van occupants appeared nervous. He was particularly concerned by the explanations given by Mr Nedanovski: "A. I said, "What are you doing in the area of Bondi tonight?" The driver said, "Oh, we've come to get a chicken burger". I said, "It's a bit late," given that everything closes early in Bondi. I then said, "What were you doing parked in the side street with your side door open?", the driver said to me "I thought it would be a good place to stop to have a cigarette". I said, "Why did you drive away when police pulled behind you in Ocean Street"? He said, "Because we looked suspicious". MAHONY Q. I'll just stop you there. When the comment was made that we've come for a drive to get a chicken burger what was your reaction to that? A. I thought it was a bit odd. Q. Why? A. Given the time of night, everything in Bondi shuts by 9.30, 10 o'clock. Q. In terms of the comment made "I thought it would be a good place to stop and have a smoke" what were your thoughts in regard to that comment made by the driver? A. That's also I thought was odd because people who tend to drive to Bondi stop down the beach and take in the ocean views to spend time, not sit in the side streets." (T 96) 1. His suspicions were further aroused when Mr Nedanovski claimed there were two passengers in the rear: "Q. You've just given some evidence that Mr Nevanoski, the driver or at least the driver of the vehicle said to you words to that "thought they were suss, they were suspicious"? A. Yep. Q. Can you recall any conversation that occurred after that? A. I asked who was in the back of the van. He replied "Two mates."" (T 98) 1. Mr Nicholls challenged whether Mr Nedanovski had in fact said this. Whether he did or not is not the issue. Constable Martin had already called for back-up and when Constable Bailey reported that there were four persons, not two, this heightened concerns, and a request to speed up the back-up truck was made. 2. Constable Bailey then ran a CNI check. He found that the plaintiff was known to police and that he was, as the plaintiff himself had told police, not a licenced driver, and a person who had been recently convicted for driving while disqualified: "Q. What was that? A. There was several warnings that came back that Mr Makri may try and escape police custody, also that M Makri will also lie about his identification. He may also try to use different names to avoid detection. Q. Those broadcasts did that have any significance for you in terms of assessing risk? A. Yes, it did." (T 98) 1. He also considered the answers by the plaintiff and Mr Nedanovski to be implausible, which was a relevant factor as to risk: A. Constable Martin said, "Who owns the bike?", Mr Makri said, "I don't know," and Constable Martin ‑ I don't remember the exact sequence of that conversation, but it was directed towards the bike. Q. In terms of that conversation, did that have any impact on you in terms of assessing risk? A. Yes. We've just been informed that there's a bike in the back of the van and Mr Makri and Mr Nevanoski did not know who it belonged to. 1. Additionally, both the plaintiff and Mr Nedanovski appeared anxious and agitated (T 100). 2. Constable Bailey said that the plaintiff had at all times been compliant, was neither aggressive nor argumentative, consented to searches and made no attempt to leave the scene (T 100). Why, then, had he used handcuffs? His answer was: "A. Officer safety. When you place people under arrest it's the most common time that a person is either going to try and fight and arc up and‑‑ Q. When you say that, is that something in your own experience or something you've been taught? A. Both. Q. In terms of any matters that you had in your mind specifically as to Mr Makri, were there specific matters that caused you to handcuff? A. There were several. The fact that I received the warnings from police radio telling me that Mr Makri may try to escape police custody, the fact that he was in a van that had a stolen motorbike in the back of it that was unexplained, the story that I had received when I was speaking to the driver didn't seem very truthful. So to me I had a general overall instinct, officer safety for both myself and for my female officer who was standing next to me when I arrested Mr Makri and placed him in the handcuffs. Q. What do you say to the assertion that by reason of Mr Makri's compliant response throughout the period he was engaged with the police, that he did not need to be handcuffed? A. Sorry, can you rephrase that? Q. What do you say to the assertion that because Mr Makri presented in a largely compliant way leading up to that arresting point, there was no need to handcuff him? A. There was a need to handcuff him." (T 103) Inconsistency with Local Court evidence 1. In cross-examination, it was put to Constable Bailey that he had agreed, in the Local Court proceedings, that the plaintiff had been "completely compliant" and "Posed no danger to himself or others present at the scene; do you agree?", "Yes" (T 108). Constable Bailey agreed with this, and said that the correct answer was the answer that he was giving in court today (T 109). 2. At T111 the following was put to him: "Q. I suggest to you that you have reconstructed your evidence about these warnings and the officer safety basis for you handcuffing Mr Makri because it is your actions that are being considered in these specific proceedings? A. Not at all. Q. You never made any mention of it at all before the learned magistrate, did you? A. No." 1. However, as is noted above, evidence of concern about officer safety had been the subject of objection by Mr Nicholls in the Local Court proceedings, in relation to the evidence of Constable Martin. 2. There was therefore good reason for not making any mention of officer safety before the magistrate, not least because the question of the handcuffing of the plaintiff, and the reasons for it, was never raised before the magistrate; the handcuffing of the plaintiff is only referred to briefly as an uncontested event. The issues before the magistrate were entirely different to those in these proceedings, as counsel for the defendant noted in her submissions, and the asserted failure of the police to lead evidence in the Local Court as to these officer safety matters, or the warnings about the plaintiff that they received, his failure to note in the notebook, or tell the magistrate that the plaintiff appeared out of breath and nervous (T 125) are misconceived. 3. It was further put to Constable Bailey that, while he had recorded in his notebook the use of handcuffs, he had failed to note the reason, as is required by Exhibits A and B. I accept Constable Bailey's evidence on this issue for the same reason that I accept Constable Martin's evidence, namely that both officers had concerns for officer safety, and that this had been the reason why Constable Martin, as the senior officer, called twice for back-up. 4. Many of the asserted inconsistencies between the notebook and Constable Bailey's evidence were trivial. Mr Nicholls conceded the difference in wording between what Mr Nedanovski said about coming to Bondi for a chicken burger was unimportant, but other differences – such as whether Ocean Street was "dark" or "very dark" (T 119), whether the side door or the passenger door was open when the vehicle was first spotted double-parked (T 120), the failure to record in the notebook the precise amount of movement of the van shaking, which rendered his description of this in centimetres in the witness box a reconstruction (T 123), are trivial in the extreme. 5. Constable Bailey gave evidence of seeing a white van double parked and the silhouette of a person leap into the back (T 26). As police came to a stop, the van started. He said "I thought it was a bit strange, a van seeing police and taking off like that", a statement to which objection was taken (T 27), which was appropriate for the criminal proceedings, but was evidence that would have been of relevance to these proceedings. He said that the van was followed for 200-300 metres before activating lights and sirens to pull the van over (T 27). He described the conversation with Mr Nedanovski as follows: "Q. I take it by that statement you don't recall what was said. Is that correct? A. I, I do, do remember most of the conversation. I just said "What are you guys up to tonight?" and Mr Nedanovski he said to me "Oh, going to get a chicken burger" and I virtually said "Where from?" and they said "Oh the Portuguese place down on Bondi Road" and I said "Look, at this hour of the night" I said "you're a bit late. That shuts at about 9.30". And then I've turned around and said "Oh, you know, then what were you doing double parked in that side street with the side door open and, the side door of the van?" They said "Oh we're, thought it would be a good place to have a cigarette"." (T 28) 1. He went on to say (T 29): "A. Constable Martin then said to me, sorry, then the next question I said "Oh, who, who have you got in the back?" and I believe it was, I'm not sure if it was the driver at this stage or Mr Makri replied casually "two mates". And at that stage I've turned to my left where Constable Martin was standing at the rear of the van and I could hear him on the radio asking if there was another car in the area. Q. So you have some concerns? A. Yes." 1. He then said: "I heard Constable Martin caution Mr Nedanovski and tell him that he was under arrest for stolen motor vehicle and I've turned to Mr Makri and I've cautioned him and told him "I'm Constable Bailey from Waverley Police. You, you're under arrest for stolen motor vehicle and you do not have to say or do anything if you do not wish to. Do you understand that?" and he said more to the words "Yes". And he replied "We're fucked", pardon my language, and I finished the caution and then-- Q. Then you finished the caution? A. Yep." (T 31, Exhibit 1) 1. After a short adjournment, Constable Bailey was cross-examined at some length (T 32-34, Exhibit 1) about having looked at his statement during the break. This was put as evidence that Constable Bailey was tailoring his evidence in the Local Court and as an issue very relevant to his credit in the proceedings before me. His recollection of events was comprehensively challenged, including whether the plaintiff had said "We're fucked" or "What the fuck?" (T 36, Exhibit 1). Constable Bailey conceded that his memory "isn't, you know, brilliant" (T 36, Exhibit 1). 2. The sole reference to handcuffs was at T 37 line 40 as follows: "Q. All right, well I'll make submissions on it. Constable, prior to you arresting and hand-cuffing Mr Makri he had been completely compliant with your requests. Do you agree? A. Yeah. Yes. Q. Posed no danger to himself or others present at the scene. Do you agree? A. Yes. Q. Made no attempt to escape or leave the scene prior to you arresting him? A. Yes. Q. Do you agree? Do you agree or not, constable? A. Yes. Q. Immediately after you're telling him he's under arrest he made no attempt to flee or escape the scene or resist you in any way, did he? A. We didn't give him the opportunity to. Q. But there was nothing that he was doing to give you any indication that he was attempting to flee or leave the scene, was he? A. No." (T 37-38, Exhibit 1) 1. Again, great reliance was placed on this concession by counsel for the plaintiff. Conclusions concerning Constable Bailey's credibility 1. Constable Bailey told the Local Court (Exhibit 1, T 40) that the plaintiff was completely compliant with his requests at the scene of the accident and that he "posed no danger to himself or others present at the scene", which was inconsistent with his evidence in these proceedings. He was asked which answer was the truth and replied that his evidence "today" was the truth. In fact, neither is the "truth"; both were opinions, expressed in different contexts. Additionally, as noted above, I am satisfied that the concerns for officer safety which led Constable Martin to call for back-up were at the back of both officers' minds when they handcuffed the plaintiff and Mr Nedanovski. 2. Some of the asserted inconsistencies in Constable Bailey's evidence were trivial. In paragraphs 80 - 82 of his submissions, counsel for the defendant drew my attention to Constable Bailey's inability to recall having noted that he handcuffed the plaintiff for safety reasons, despite acknowledging his obligation to do so (Exhibit C). His notebook entry notes that the plaintiff was handcuffed but does not give the reason. That does not mean, however, that there was no reason; it means that the reason was not recorded. Failure to record the reasons for handcuffing does not mean that there was no reason; it means, at best, that there was insufficient compliance with police procedure. Nor do I regard the evidence about whether the plaintiff was handcuffed from behind or from the front to cast doubt upon Constable Bailey's veracity. 3. Some of the evidence asserted to be incorrect was in fact correct. For example, Constable Bailey's evidence of Mr Nedanovski's statement about the chicken burger was, but for a minor difference in wording, the same. 4. I do not accept the submission that Constable Bailey tailored or reconstructed his evidence. His evidence is largely consistent with his notebook entry and with the evidence of Constable Martin. The attacks on his failure to keep proper police records for use of handcuffs may reflect on his competence as a police officer, but not on his honesty. Constable Rhett Douglas, Constable Zizi Taylor and the record of interview 1. The plaintiff's handcuffs were removed within minutes of his arrival at the police station, just before midnight, after he was placed in the dock. He was processed at the police station at 12:15am and interviewed by the station sergeant, Sergeant Rhett Douglas, first briefly, and then in completion of a questionnaire which concluded at 12:43am. 2. The plaintiff's record of interview did not commence until 2:07am. By that stage, he was tired and anxious. He told Constable Martin that "my anxieties are going to hit the roof" and that he needed to have his tablets because "if I don't have them I go haywire" (questions 4 and 9 of the ERISP). I take into account, in relation to these answers, the fact that he was both tired and upset, although the notes of Sergeant Douglas reveal that he was not in fact taking any medication for his anxiety condition, a fact which the plaintiff agreed to in the witness box (T 74). 3. At no stage during this interview, or in the subsequent questioning by Sergeant Douglas (questions 144 to 151), did the plaintiff complain of, or even mention, being handcuffed. 4. Beyond taking off the handcuffs in circumstances which are not the subject of contest, Constable Douglas's evidence is of peripheral relevance. 5. Constable Taylor, a probationary officer who was called to the station to participate in the ERISP, was also called. Constable Taylor 1. Constable Taylor (T 43-59) told the court she was a Probationary Constable at the time. She was called in to participate in the record of interview as part of her training. As is noted in the Local Court transcript, inquiries about the plaintiff's telephone appear to have been overlooked by police at this stage, but that is of no relevance to the proceedings before me. Her evidence is of little relevance to the circumstances in which the plaintiff, prior to encountering her, had been handcuffed. Whether or not he had the conversation with her he alleges to have had (which I do not accept in any event) is not evidence that his conversation with the officers prior to arrest was more than usually helpful or cooperative. Proceedings in the Local Court 1. As well as the police evidence, the owner of the motor vehicle gave evidence that he had not given permission to the plaintiff or Mr Nedanovski to take his motorcycle (T 60-65, Exhibit 1). After noting a prima facie case was established in response to a no case application, Mr Nedanovski was called and cross-examined (T 69-77, Exhibit 1). He said that the plaintiff did not give him an address to go to but that the plaintiff "certainly did" have an address which was unknown to him (T 75, Exhibit 1), and that the plaintiff had the make and model of the motorcycle, which he considered was sufficient (T 76, Exhibit 1). 2. After submissions, the Magistrate found he could not be satisfied beyond reasonable doubt as to the allegations and both matters were dismissed (T 80, Exhibit 1). An application was made for costs on which the prosecutor did not wish to be heard (T 82, Exhibit 1). Costs orders were made (T 83-83, Exhibit 1). Analysis of the evidence 1. Counsel for the defendant has divided the factual background into four separate events as follows: 1. The police's observation of the van – The following facts are not disputed: 1. The van was double parked, on a dark street; 2. The van had tinted windows and the police could not see through them; 3. A person was observed to jump into the rear of the van, as the van's side door was heard to slide shut. Whether this was in fact the van door sliding shut, or the passenger door, the vehicle drove away on police approach; 4. A vehicle check confirmed the van was not from the local area (T 166 line 45). This vehicle check was carried out at 11:19pm, about a minute before the van was pulled over. 1. The police's initial contact with the occupants of the van – The following facts are not disputed: 1. It is not in dispute that upon the van being pulled over, it was observed to rock violently from side to side for about 8 to 10 seconds. This caused Constable Martin to direct Constable Bailey to wait, as he was alarmed (T 149 line 20); 2. Constables Bailey and Martin approached the vehicle and questions were asked of Mr Nedanovski for the two men's reason to be in the area. Those answers arouse the suspicion of the police. The plaintiff was also asked questions, and his asserted honesty in reply must be contrasted with the answers of Mr Nedanovski; 3. The conduct of both the plaintiff and Mr Nedanovski, but particularly the latter, resulted in Constable Martin calling for backup for safety reasons (T 150 line 30). While counsel for the plaintiff submits that Constable Bailey must have misheard or misunderstood Mr Nedanovski when Mr Nedanovski said that there were "two mates" in the back. The answers given by both men, but in particular Mr Nedanovski, were sufficient for Constable Martin to be concerned; 4. Identification obtained from the plaintiff and Mr Nedanovski including a CNI check on the plaintiff (T 117 line 45) revealed that he was on a section 9 bond and was known to the police. The precise parameters of what was known had been challenged, but two facts clearly emerged. The first is that neither of the occupants could be the owner of the van (the owner being a female) and the second was that the plaintiff had lost his driver's licence in circumstances which caused Constable Martin to be suspicious that the reason for the rocking motion of the vehicle after it was pulled over was that the plaintiff and Mr Nedanovski had changed seats in the van. 1. The police's observation of the motorcycle and the inquiries that were made – The following facts are not disputed: 1. Between 11:30pm and 11:45pm, the police located a motorcycle in the back of the van, made enquiries as to ownership and ascertained that neither the plaintiff nor Mr Nedanovski had permission from the owner to take the motorcycle; 2. Initial enquiries of the plaintiff and Mr Nedanovski revealed that they did not know the name of the owner of the motorcycle and that they had only the first name of the person who had asked the plaintiff to collect the motorcycle; 3. The circumstances of the motorcycle's removal and the manner in which it was placed in the back of the van without being secured, were additional matters for concern. The police suspected that the motorcycle had been stolen. 4. The demeanour of Mr Nedanovski raised suspicions on the part of the police. While the plaintiff challenges the observations of the police that he was anxious and nervous, the conduct of Mr Nedanovski cannot be discounted; 5. A search of the van did not identify items connected to a motorcycle towing business, in that they did not find any ties, stands or ramps. The plaintiff challenged the findings as to ramps; 6. During this period of time, the backup vehicle had arrived and was standing by. One of the officers from that standby vehicle did, however, assist Constable Bailey in bringing the plaintiff from the place at the side of the road where he had been standing until being placed under arrest to the police van in handcuffs. 7. The determination to arrest both the plaintiff and Mr Nedanovski was made without any prior discussion. 1. The circumstances in which the plaintiff was arrested and conveyed to the police station – The following facts are not dispute: 1. It is not disputed that the circumstances at the time of the arrest gave police authority pursuant to s 99 of LEPRA to arrest the plaintiff on the grounds that the arresting officer had reasonable grounds to suspect that he was committing, or had committed, the offence of stealing the motorcycle found in the rear of the van. 2. The plaintiff and Mr Nedanovski remained in the police van for several minutes before being driven to the police station, a trip agreed to be five minutes in length. His handcuffs were removed at the police station as soon as he entered the dock. This means he was in handcuffs for ten minutes at most. 3. The plaintiff made no complaint at the time about the handcuffs (including any complaint about being handcuffed from the rear) to any person, including Constable Douglas, who took off the handcuffs. Nor did he make any complaint during the ERISP or at the end of the ERISP, when Constable Douglas returned for the purpose of asking if he had any complaint. 4. Although the plaintiff said he had to rub his wrists, it is common ground that he suffered no injury, and not even a bruise. 5. Although the plaintiff claims damages for humiliation in relation to being handcuffed, the only persons who saw him handcuffed were the police officers at the scene and in the police station. The plaintiff referred to other persons being in the police station or the dock, but did not identify these persons with any precision. 1. The question is whether, in the circumstances, the use of handcuffs was reasonably necessary, having regard to s 237 of LEPRA and what significance, if any, the failure to record the reason for use of handcuffs in the police notebooks has. Application of the relevant legislation to the facts in the case 1. Section 230 LEPRA makes it lawful for a police officer in the direction of his duty such as an arrest "to use such force as is reasonably necessary to exercise the function". The Commissioner's powers to issue instructions from time to time to police are set out in s 237 of LEPRA and in s 8 of the Police Act 1990 (NSW). The relevant extracts from the NSW Police Force Handbook are set out in Exhibits B and C. The Handbook requires police to have "good reason" for handcuffing, to record in the notebook the reasons, to take all reasonable measures to prevent injury, and to remove the handcuffs as soon as the need to use them no longer exists. When a handcuffed prisoner is handed over, the receiving officer must be informed of the reason. 2. Whether or not the actions of the police officers in handcuffing the plaintiff and Mr Nedanovski were reasonable is an issue determined by applying an objective test. 3. Counsel for the plaintiff points to "a significant absence of any contemporaneous or previous assertions relating to that now purported reason [officer safety] for the application of the handcuffs" (written submissions, paragraph 122). Constable Bailey noted only that he handcuffed the plaintiff, and agreed in the Local Court proceedings that there was no danger of flight and no absence of compliance from the plaintiff at the time of his arrest. 4. However, the police decision to handcuff the plaintiff needs to be looked at in the context of the event as a whole. Their initial response was one of caution or concern, for the reasons set out above. It was objectively reasonable for police to feel that caution continuing, as opposed to being dissipated by the discovery that, instead of a van of four persons intent on some unknown and potentially dangerous purpose, there were only two persons transporting a stolen motor cycle. While the reasons for concern may have been misplaced, were they unreasonable? 5. In Woodley v Boyd [2001] NSWCA 35 at [37], Heydon JA stated: "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." 1. The question is what information is available at and before the time of arrest (State of New South Wales v Zreika [2012] NSWCA 37 at [47]), and the whole of the circumstances must be taken into account, as Heydon JA noted. 2. There was no doubt that an arrest had to be made; the sole question was the degree of officer safety danger and, on the whole of the facts as summarised above, I am satisfied that it was objectively reasonable for both officers to have handcuffed both men. 3. Accordingly, the plaintiff has failed to establish that the application of handcuffs by Constable Bailey constituted an unreasonable use of force constituting the tort of assault and battery upon him, and judgment will be entered for the defendant. Clavel v Savage [2013] NSWCA 775 1. The fact that there is no claim that the arrest was unlawful may have additional significance. In Clavel v Savage [2013] NSWCA 775 at [769] - [770] Rothman J considered that a mere claim for assault and battery for placing handcuffs upon a lawfully arrested person could not be brought. The only basis upon which a complaint in those proceedings could be brought in those proceedings was that the handcuffs were too tight and caused physical pain and injury, a claim not brought in these proceedings; Rothman J held that the assault claim on that basis failed (at [911]). In Clavel v Savage [2015] NSWCA 61 at [60] – [62] the Court referred to the findings in relation to the assault, although not specifically referring to this point. However, this authority was not referred to by either party, and I note it only for the sake of completeness, and not because I have based any findings upon its reasoning. 2. Neither of the parties referred to these decisions. By reason of my findings, it is not necessary for me to do more than note this point. Quantum 1. In the event that I have erred in my findings on liability, I set out some brief observations as to quantum. General damages 1. The plaintiff seeks separate damages in relation to both the assault and battery in the sum of $10,000 to $20,000 (written submissions, paragraph 133). In the course of oral submissions, Mr Nicholls conceded there was no evidence before the court in relation to the assault claim, and accordingly any claim for damages for assault is not made out. 2. Counsel for the defendant submits that the circumstances of the case are at the lowest end of the scale of damages and could only attract nominal general compensatory damages. A table of comparable cases was provided. 3. The amounts in question ranged between $10,000 to $20,000 (the plaintiff's submissions) and $1,000 to $3,000 (the defendant's submissions). 4. The plaintiff suffered no physical injury of the kind referred to by Diplock LJ in Cassell & Co Ltd v Broome [1972] 2 WLR 645. He did not even suffer a bruise. He suffered at best mild discomfort which he relieved by rubbing his wrists. While the plaintiff gave evidence that he felt humiliated that handcuffs were applied and was uncomfortable sitting in the police van, I am satisfied that the real source of any discomfort and distress the plaintiff felt was in being arrested, detained and charged with the offence for which he was ultimately acquitted. Accordingly, I prefer the estimate given by the defendant and would award the sum of $3,000. The rolled-up claim for aggravated and exemplary damages 1. The plaintiff claims exemplary and aggravated damages as follows: "Exemplary and aggravated damages 30. As a result of the aforementioned conduct of the Defendant the Plaintiff further claims aggravated and exemplary damages for the injury, loss and damage suffered PARTICULARS OF EXEMPLARY AND AGGRAVATED DAMAGE The Defendant: 30.1 abused their position of power and authority as Police officers [sic]. 30.2 demonstrated a contumelious disregard for the Plaintiff's dignity and rights. 30.3 proceeded with deliberate disregard for the well-being of the Plaintiff." 1. Mr Nicholls in written submissions referred me to State of New South Wales v Zreika at [60]-[63]. An award of aggravated damages is sought on the basis of Constable Bailey abusing his power and showing a "contumelious disregard for the plaintiff's rights" (written submissions, paragraph 137). The award for exemplary damages was varied in the written and oral submissions to be claimed on the basis that he showed a "compounded contumelious disregard for the Plaintiff's rights by giving evidence in these proceedings tailored and/or reconstructed to retrospectively justify his otherwise unreasonable conduct in handcuffing the Plaintiff". It is submitted that this not only shows a complete disregard for the plaintiff's rights, but would also bring it within an "exceptional case" warranting the need for a component of damages to punish and deter future conduct of this kind by police officers. 2. The defendant submits that the plaintiff has conflated the concepts of aggravated and exemplary damages. General and aggravated damages, the first two of the three heads under which damages are recoverable (Cassell & Co Ltd v Broome at 718 per Diplock LJ) are compensatory in nature and are recoverable for torts where damages of this kind are available. While the assessment of general damages involves putting a money value upon "physical hurt, as in assault" (Cassell & Co Ltd v Broome at 718), additional compensation for the injured feelings of a plaintiff where his sense of injury is "justifiably heightened by the manner in which or motive for which the defendant did it" (Cassell & Co Ltd v Broome at 718) may be awarded as aggravated compensatory damages. By contrast, awards of exemplary damages fulfil an entirely different purpose, such as to ensure that those officials of the State of New South Wales who are responsible for overseeing the police force ensure that officers are trained so that abuses do not happen: New South Wales v Ibbett (2006) 229 CLR 638 at [51] and [54], citing Adams v Kennedy (2000) 49 NSWLR 78 at 87. Exemplary damages are a form of punishment and are as such do not attract interest at all, unlikely aggravated damages: Mather v Smith [2014] QCA 65; Hallam v Ross (No 2) [2012] QSC 407 at [48]. A further difference between aggravated and exemplary damages is that exemplary damages may not be awarded until the quantum of general damages, including aggravated compensatory damages, is awarded: State of New South Wales v Zreika at [70]; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. 3. The plaintiff relies upon McCarthy v State of New South Wales [2013] NSWDC 247, where a rolled up claim for aggravated and exemplary damages was made, pointing out that while leave to appeal was granted, that leave was limited to liability and no leave to appeal was granted in relation to the conflating of the aggravated and exemplary damages claim. The Court of Appeal's decision, handed down after submissions were completed (State of New South Wales v McCarthy [2015] NSWCA 153), did indeed restrict leave to appeal to liability, and did not make any comment, critical or otherwise, about the way in which damages were calculated. However, this may have been by agreement with the parties, or by their oversight (an oversight of a different kind as to exemplary damages by the parties in Tilden v Gregg [2015] NSWCA 164 was noted by McColl JA at [66]). 4. The plaintiff's failure to identify and plead with precision the particulars of aggravated and exemplary damages is further complicated by the generality and vagueness of the pleading that "police officers" "abused their position of power". Aggravated compensatory damages 1. There is no evidence of the police officers, including Constable Bailey, speaking harshly or rudely to the plaintiff, or using unnecessary force to put the handcuffs on, or ignoring any complaints (which the plaintiff concedes were not made in any event about the handcuffs). 2. The claim for aggravated compensatory damages has not been made out. Exemplary damages 1. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno (1987) 164 CLR 1 at 12. 2. The police were in the course of arresting the plaintiff for an offence, in circumstances where they already had concerns for their safety. Counsel for the defendant drew to my attention the well-known principle that provocation may operate to prevent an award or reduce any amount which might otherwise be awarded (Lamb v Cotogno at 13), for the reasons explained by Salmon LJ in Lane v Holloway [1968] 1 QB 379 at 391: "There is no doubt that if a plaintiff is saying: "This man has behaved absolutely disgracefully and I want exemplary damages because of his disgraceful conduct," when the court is considering how disgraceful the conduct was or whether it was disgraceful at all, it is material to see what provoked it. This is relevant to the question of whether or not exemplary damages should be awarded, and, if so, how much." 1. As is set out above, I do not accept the plaintiff's submission that Constable Bailey tailored his evidence in the manner asserted by counsel for the plaintiff. I would not award exemplary damages on this head, even if it had been properly pleaded and particularised (which, despite counsel for the plaintiff's reference to the style of pleading in McCarthy v New South Wales [2013] NSWDC 247; State of New South Wales v McCarthy [2015] NSWCA 153, I am satisfied is not the case. 2. For the same reason that I am satisfied that aggravated compensatory damages should not be awarded for the conduct of either of the police officers on the night that these events took place, I am satisfied that there is no requirement to award damages as a punishment, or to reflect "detestation" (Lamb v Cotogno at 8). Costs 1. Costs should follow the event. I have granted liberty to apply if any application for indemnity costs is to be made by the defendant. 2. In the event that my findings as to liability have erred, but some or all of my findings as to damages are accepted, I also note my findings as to costs. In view of the comparatively small size of the damages sought by the plaintiff, I drew the parties' attention to r 42.35 UCPR, which provides that a party obtaining damages of less than $40,000 must satisfy the court that the commencement and continuation of the proceedings in this court, and not the Local Court, was warranted. 3. Mr Nicholls submitted that this was too difficult a claim to bring in the Local Court, in that the issues were complex, the damages sought were outside the realm of those generally claimed and the time to be allocated was too long. 4. I do not accept these submissions. The Local Court hears evidence from police officers, and makes credit findings as to witnesses' evidence, on a daily basis. The Local Court's understanding of the background facts to such a claim would be considerable. Additionally, the very slight nature of the injury (namely hurt to feelings), the nature of the evidence and the ambit of damages were such that these proceedings should have been commenced as well as continued in the Local Court. Accordingly, if I had found for the plaintiff, I would not have awarded costs. Orders 1. Judgment for the defendant. 2. Plaintiff pay defendant's costs. 3. Liberty to apply in relation to costs. 4. Exhibits retained for 28 days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2015