District Court New South Wales Medium Neutral Citation: Charles Henry Thomlinson v The State of New South Wales [2016] NSWDC 369 Hearing dates: 11- 15, 18- 21 and 26 April 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: (1) Verdict and Judgment for the Plaintiff in the sum of $147,796 (rounded down); and (2) I will hear from the parties as to interests and costs Catchwords: TORTS – ASSAULT – BATTERY – implied licence to remain on premises – breach of the peace – non-voluntary exclusion of persons from licenced premises – whether intoxicated, violent, quarrelsome or disorderly UNLAWFUL ARREST – reasonable grounds to suspect an offence had been committed TORTS – FALSE IMPRISONMENT – detention after unlawful arrest TORTS – MALICIOUS PROSECUTION – whether prosecutor had reasonable and probable cause – whether prosecutor actuated by malice DAMAGES – compensatory damages – aggravated damages – exemplary damages Legislation Cited: Civil Liability Act 2002 (NSW) ss 3B, 5, 11, 26A, 27, 51, 52, 53, 54 Crimes Act 1900 (NSW) s 58 Evidence Act 1995 (NSW) ss 136, 140 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 5(1), 23(1), 24, 99(2), 99(3), 201, Sch 1 Law Reform (Vicarious Liability) Act 1983 (NSW) s 9B(2) Liquor Act 2007 (NSW) ss 5(1), 5(3), 77(4), 77(5) Migration Act 1958 (Cth) s 189(1) Police Act 1990 (NSW) s 6(3) Uniform Civil Procedure Rules 2005 (NSW) r 15.8 Cases Cited: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 Alderson v Booth [1969] 2 QB 216 Brierley v Ellis [2014] NSWCA 230 Cleland v The Queen (1982) 151 CLR 1 Cowell v Rosehill Racecourse Company Limited (1937) 56 CLR 605 Coyle v State of New South Wales [2006] NSWCA 95 Croucher v Cachia [2016] NSWCA 132 Director of Public Prosecutions v Gribble (2004) 151 A Crim R 256; [2004] NSWSC 926 Fernando v Commonwealth and Anor (2014) 315 ALR 547; [2014] FCAFC 181 Fontin v Katapodis (1962) 108 CLR 177; [1962] HCA 63 Glinski v McIver [1962] AC 726 HD v State of New South Wales [2016] NSWCA 85 Manly Council v Byrne and Anor [2002] NSWCA 123 Mason v Demasi & Anor [2009] NSWCA 227 Naylor v Canterbury Park Racecourse Company Limited (1935) 35 SR (NSW) 281 New South Wales v Delly (2007) Aust Torts Reports 81 – 920; [2007] NSWCA 303 New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57 Payne v Parker (1976) 1 NSWLR 191 Poidevin v Semaan [2013] NSWCA 334 Pupo v Pupo; Pupo v Pupo [2015] NSWSC 1633 R v Howell (Errol) [1982] QB 416 R v Inwood [1973] 2 All ER 645 R v Roxburgh (1871) 12 Cox C.C. 8 Sahade v Bischoff [2015] NSWCA 418 Sangha v Baxter (2009) 52 MVR 492 SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 State of New South Wales v Beck [2013] NSWCA 437 State of New South Wales v Hunt [2014] NSWCA State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 State of New South Wales v Landini [2010] NSWCA 157 State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 State of New South Wales v Tyszyk [2008] NSWCA 107 State of New South Wales v Zreika [2012] NSWCA 37 Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316 Trobridge v Hardy (1955) 94 CLR 147; [1955] HCA 68 Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130 Young v State of New South Wales & Ors; Young v Young (No 2) [2013] NSWSC 330 Category: Principal judgment Parties: Charles Henry Thomlinson (Plaintiff) The State of New South Wales – NSW Police (Defendant) Representation: Counsel: Mr I Temby QC with Mr P English (Plaintiff) Mr M Spartalis (Defendant) File Number(s): 2014/94638 Publication restriction: N/A Judgment TABLE OF CONTENTS INTRODUCTION [1] – [4] WITNESSES [5] – [13] EVIDENCE Background events [14] – [29] Approach by security [30] – [45] Intervention by police [46] – [63] Plaintiff removed after first alleged assault [64] – [104] Plaintiff escorted out of the Shore Club [105] – [117] Search [118] – [121] Arrival of Constables Grime and Doring, and transporting the Plaintiff away from the Shore Club [122] – [141] Arrival at home [142] Mona Vale Hospital [143] – [145] Refusal of service [146] – [152] Visit to the Shore Club to view CCTV footage [153] – [160] CLAIMS IN TRESPASS [161] What were the circumstances in which security approached the Plaintiff? [162] – [169] Arrest and first assault [170] – [172] Revocation of implied licence to remain on premises [173] – [177] s 77(5) of the Liquor Act 2007 (NSW) [178] – [228] Breach of the peace [229] – [245] Reasonable grounds to suspect an offence had been committed [246] – [254] Second assault [255] – [296] Third assault [297] – [302] Fourth assault [303] – [308] Conclusion on trespass [309] – [313] MALICIOUS PROSECUTION CLAIM Facts [314] – [341] Ingredients [342] Who was the prosecutor? [343] – [351] Setting for determining absence of reasonable and probable cause [352] Principles for determining absence of reasonable and probable cause [353] – [358] The Plaintiff's concession as to prima facie case [359] – [362] What does the Plaintiff say? [363] – [384] Malice [385] – [397] Conclusion as to malicious prosecution [398] DAMAGES Plaintiff's evidence [399] – [419] Medical evidence [420] – [460] Psychological evidence [461] – [465] Civil Liability Act 2002 (NSW) [466] – [476] Compensatory damages [477] – [499] ORDERS [500] INTRODUCTION 1. On 2 December 2011, the Plaintiff, Mr Charles Henry Thomlinson and his friends visited the licenced premises known as the "Shore Club" located at South Steyne, Manly in the State of New South Wales. At around 12:12am on 3 December 2011, the Plaintiff was forcibly ejected by police from the said club in circumstances which give rise to the proceedings in this case. 2. Mr Thomlinson's proceedings were brought against the State of New South Wales on the basis of it being vicariously liable for the actions of five police officers, being Leading Senior Constable Iain Church, [1] Constable Amy O'Donnell, Senior Constable Ritson Renshaw, [2] Constable Christopher Grime, and Constable Regan Doring. 3. By its Defence, the Defendant has admitted to be vicariously liable for the tortious conduct of the named police officers pursuant to s 9B(2) of the Law Reform (Vicarious Liability) Act 1983 (NSW). [3] 4. The proceedings brought by the Plaintiff allege assault and battery, unlawful arrest and false imprisonment, as well as malicious prosecution. WITNESSES 1. The Plaintiff gave evidence in his own case and was the subject of extensive cross-examination. The Defendant submitted that he should not be accepted as a witness of truth. As these reasons will demonstrate, I have carefully considered the Plaintiff's evidence and in some respects have not accepted it. However I do not consider that it is appropriate to make any global finding as to his credit. To do so would fail to exercise the caution expressed in Sangha v Baxter, where Basten JA stated:- "There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44] (emphasis supplied)." [4] 1. The Defendant drew extensive attention to the history provided by the Plaintiff to Mona Vale Hospital and various medical practitioners. [5] The clinical notes from the hospital were not tendered. Nor was evidence tendered from Ms Joanna Callaghan, psychologist, Dr Kathryn Zeleny, Dr Charles Brooker or Dr James Bodel to which the Defendant also makes reference. [6] In relation to the various histories which are in evidence, I have borne in mind that in Mason v Demasi & Anor, Basten JA stated:- "[2] … [T]he trial judge was invited to discount the appellant's oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others: (a) the health professional who took the history has not been cross-examined about: (i) the circumstances of the consultation; (ii) the manner in which the history was obtained; (iii) the period of time devoted to that exercise, and (iv) the accuracy of the recording; (b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings; (c) the record did not identify any questions which may have elucidated replies; (d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and (e) a range of factors, including fluency in English, the professional's knowledge of the background circumstances of the incident and the patient's understanding of the purpose of the questioning, which will each affect the content of the history." [7] 1. The Plaintiff called two further witnesses as to the events of 2 – 3 December 2011 being Ms Hayley McKirgan and Ms Honora Campbell. Both these witnesses were employees working at the Club on the occasion in question. Neither were previously known to the Plaintiff. Both were approached by the Plaintiff to provide statements to him, prior to them providing police statements. I have no reason to believe they did not seek to truthfully assist the Court, although again, I have carefully scrutinised their evidence. 2. A number of witnesses were not called, however their statements were tendered in the Plaintiff's case as Exhibit F being a brief of materials supplied in answer to a subpoena in the related criminal proceedings in the Local Court. 3. Although an objection to the tender of the documents in Exhibit F was advanced by the Defendant, I admitted the documents, reserving to the Defendant the right to seek a limitation under s 136 of the Evidence Act 1995 (NSW). No such limitation was ultimately made. [8] 4. The Plaintiff submitted:- "[53] Where a witness is not called in a civil case, two results follow. The first is that the tribunal of fact may infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact may draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should have been properly drawn (Manly Council v Byrne & Anor [2002] NSWCA 123 at [51] per Campbell JA). [54] The Plaintiff submits that both of these inferences are available in respect of each of officers Church, Renshaw, O'Donnell, Grime and Doring, whom the Defendant would have been expected, but failed, to call. Save for the reliance placed on their written statements, the absence of these witnesses, whose evidence is critical to the legal and factual narrative of this case, is unexplained (Payne v Parker [176] (sic) 1 NSWLR 191 per Glass JA at 201 – 202)." [9] 1. In Brierley v Ellis, Meagher JA (with Basten and Gleeson JJA agreeing) stated:- "[24] The fact that evidence is unable to be tested by cross-examination may provide a reason to discount the weight that should be given to it. As Mahoney JA observed in Clyne v Law Society of New South Wales (Court of Appeal (NSW), 4 September 1987, unrep): 'The fact that a witness has not been cross-examined has conventionally been seen, and properly seen, as a reason why the witness' evidence should be taken with reserve. In Braithwaite v Kerns 34 Beav 202, Romilly MR, in giving leave for the use of an affidavit by a person who, by reason of paralysis, was unable and incapable to attend and be cross-examined, said: 'I must allow it to be read, and must judge of it. But I pay little attention to the affidavit of a person who has not, when required, submitted to a cross-examination.' Each case must, of course, be weighed on its merits and in its context. But experience has shown that it is proper to treat with considerable reserve evidence, or the inferences from evidence, which has not been subjected to cross-examination.'" [10] 1. Even so, the correct approach to the assessment of the evidence in Exhibit F is that stated in State of New South Wales v Beck, by Ward JA:- "[66] Relevantly, a Jones v Dunkel inference would permit his Honour, where there were competing inferences available on the evidence, more comfortably to accept Mr Beck's version of events but it would not permit a positive finding that had the police officers been tested in cross-examination that evidence would have been damaging to the defence case (HML v R (2008) 235 CLR 334; Cross on Evidence, JD Heydon, 8th edn [1215]). Therefore I have difficulty with the proposition that the fact that the police officers were not called carried with it the inevitable consequence that the divergence between the evidence called in Mr Beck's case and the police statements warranted an inference that one or more of the police officers had knowingly falsified his or their evidence. In any event, what was necessary was for his Honour to have had regard to all the evidence, including the untested police statements for what weight his Honour considered they were worth, (and to apply the Briginshaw standard before making findings of criminal conduct against the police officers) in determining the question of liability once the no case application had failed. It appears from the manner in which his Honour proceeded immediately to find for Mr Beck as a consequence of failure of the no case application that his Honour did not at that point do so." [11] 1. In the fact finding process generally, I have followed the principles usefully summarised by Hallen J in Pupo v Pupo; Pupo v Pupo. [12] EVIDENCE Background events 1. On 2 December 2011, the Plaintiff went out to lunch with clients at a location known as "The Balcony" on Erskine Street in Sydney. There he consumed a three-course meal, together with two 375 mL bottles of Peroni beer and one glass of cabernet sauvignon wine. [13] 2. The Plaintiff continued to discuss business matters with clients at the venue until around 6:00pm. At that time the Plaintiff met his friend, Mr Andrew Latham, and the two men caught a taxi to Manly. Around 7:00pm, the Plaintiff and Mr Latham arrived at Manly and entered the "14 ft Skiff and Sailing Club." [14] The taxi receipt records their arrival in Manly at around 6:54pm [15] . Between 7:00 – 8:00pm, the Plaintiff was completing some work tasks. He stated that had a schooner of full strength beer which he consumed on the balcony at the Skiff and Sailing Club. [16] He then proceeded to consume a meal and a further schooner of full strength beer. [17] Overall whilst at the Skiff and Sailing Club, the Plaintiff stated that he had two schooner sized beers. [18] 3. Also in attendance were four other males who were friends of Mr Latham. The time of their departure was said by the Plaintiff to be between 9:00 and 9:30 pm, [19] although in a police statement the Plaintiff stated 8:15pm. [20] The Plaintiff stated that he and his friends went to a pie shop in the Corso [21] and thereafter they went to the Shore Club at around 9.30pm. [22] The Plaintiff stated that in reference to this visit to the pie shop, he did not purchase anything at that point. [23] This evidence was supported by Mr Latham. [24] 4. The Plaintiff told police:- "The security guards did not check our identification at this time and but appeared to look us over as we walked through the entry." [25] 1. At one point the Plaintiff conceded that he was scanned on entry but stated that he did not add that into his statement as he was not specifically asked. [26] When it was put to him that he made the statement to give the impression that "you know, we're not drunk, they let us straight in," the Plaintiff replied: "Well, it's … what happened but yes." [27] It was then put to him that this was incorrect as he was scanned he stated "I believe so yes" [28] and "I don't remember it specifically." [29] 2. The Plaintiff's evidence was that he entered the Shore Club at 9.30pm and proceeded direct to Level 2. This was repeated in his police statements in some detail. [30] It was also supported in the police statements of two of the Plaintiff's companions being Mr Andrew Latham [31] and Mr Casey Aimer. [32] The Defendant submits that the three documented accounts are inconsistent with the incontrovertible evidence shown in the CCTV footage [33] tendered before the Court. [34] 3. During cross-examination, the Plaintiff acknowledged that his assertion may have been wrong as he might have bought a beer first on Level 1. [35] 4. The Plaintiff was then cross examined extensively regarding this anomaly. [36] The Defendant submits that the most likely explanation is that the Plaintiff had contacted his friends and they had created an untrue account that they entered the Shore Club and immediately went to the top floor (being Level 2). [37] There is evidence that the Plaintiff contacted Mr Aimer on 18 January 2012 [38] and also Andrew Latham eight or nine days after the incident about making a statement to police. [39] The Plaintiff conceded that he had some discussion with them as to what took place however neither saw what happened and so they "couldn't really help [him] out" and he "left it to the police to speak to them." [40] He stated that he did not believe that he showed either person a copy of his statement and thought that he was advised not to by police but could not remember. [41] 5. The Plaintiff rejected a suggestion that he colluded with his friend or acquaintances and told them what to write. [42] Neither Mr Latham or Mr Casey were asked to provide a statement to the Plaintiff in the context of his own investigation of the event. Whatever occurred on Level 1 prior to the Plaintiff going to Level 2 of the Shore Club, there is no evidence to suggest that this was anything other than of short duration or significance. Although the Defendant has asserted that this aspect was subject to collusion, its relevance to the questions of fact to be determined was not identified. I also note that it was the Plaintiff who had in fact, volunteered this information. [43] Overall the issue does not have any significance to the determination of the issues in dispute except as to the Plaintiff's ability to recall the events in question. 6. Next, the Plaintiff bought a round of drinks using a credit card. The credit card imprint shows that a sum of $33 was expended at 9.44pm. [44] The Plaintiff's evidence was that he bought four drinks being one for himself, one for Andrew Latham and one each for Andrew's two friends who he had met that evening. [45] 7. There was evidence of the Plaintiff and his friends leaving the Shore Club temporarily at some point to get a pie. [46] The Plaintiff's evidence-in-chief was that he might have had a pie later that evening. [47] More specifically he stated in in cross-examination:- "So we had a beer at the Shore Club. We nipped out to get a pie and then we came back and this, when we came back we went up to the top floor and we sat on the chairs that you, I mentioned in paragraph 10." [48] 1. This visit (which would amount to a second visit to a pie shop) was not disclosed in the Plaintiff's police statements [49] which only referred to the earlier visit before first entering the Shore Club. [50] Neither Mr Latham nor Mr Casey referred to leaving the Shore Club at this time. Notwithstanding this, it was not suggested in cross-examination that leaving and re-entering the Shore Club did not occur and Exhibit H confirms that it did. 2. The Plaintiff's evidence was that around 10:25pm, he and his companions re-entered the Shore Club and proceeded to Level 2 of the building, [51] where they were socialising on cushion chairs surrounding a circular table in the middle of Level 2. The Plaintiff then walked down to Level 1 to buy a round of drinks using his credit card and gave these to two people from the group who joined him on the floor. The imprint shows that it was approved at 11:27pm, for a sum of $26 [52] although there had been an earlier instance where the transaction had been declined. The Plaintiff responded to the suggestion that he had unsuccessfully attempted to enter his personal identification number a number of times stating that he thought he typed the number for another card the first time but the second occasion he used the right number. [53] The Plaintiff's evidence was that this beer was for himself, Andrew Latham, and one of Andrew's friends. [54] He marked the spot at the bar where he made the purchase on Exhibit T with the number 4. [55] The Plaintiff's evidence was that whilst at the Shore Club, he also consumed a beer which had been purchased for him. [56] After making his purchase, the Plaintiff's evidence was that at around 11:50pm, he placed half a glass of beer on the bar and walked to the dance floor. 3. The Plaintiff denies that at this time, he was intoxicated. His evidence was that he was "completely coherent." [57] He stated that he certainly was not "swaying from side to side" and was dancing on the floor in a "coordinated fashion" and having "conversations with people." [58] 4. The Plaintiff was asked whether he was approached by a "glassy" whilst he was on the dance floor. He stated that he did not think so, but knew that a "glassy" was a person who went around collecting glasses. [59] He denied being approached by a security guard whilst he was on the dance floor. [60] 5. Mr Latham recalled the Plaintiff buying a round of drinks for Mr Aimer and himself but said he "lost sight of him." [61] Mr Aimer stated that he left the Shore Club at about 10.30pm by himself and remembered the Plaintiff as not being there at the end of the evening "and assumed that he had gone home." [62] Approach by security 1. At a point approaching midnight, the Plaintiff stated that he was leaving the Shore Club and was exiting the dance floor. However, he stated that he did not proceed immediately down the stairs [63] because:- " … there were lots of people coming up. It was particularly busy. I just decided to stop in, in the thoroughfare, let people come up. While I was stopped I checked my phone. I got side tracked with my phone for a couple of minutes" [64] 1. The Plaintiff stated that he stood by the grille checking his mobile phone when he had his first encounter with a security guard that night. [65] The Plaintiff was asked to mark on Exhibit T with a red pen, the number 1, being the location in which he was standing when he was first approached by the first security guard. [66] He stated that he was asked, whilst checking his mobile phone, to move away from the stairs as it was a very busy thoroughfare. [67] He stated that the conversation he had with the first security guard was to receive the following instructions: "Could you move back sir? You are in the way." To which the Plaintiff is said to have stated: "Yeah, no worries." [68] He stated that the security guard had a "clicker" that was counting people coming in and out. [69] During cross-examination he marked on the same Exhibit T with the number 2 the position he was in after he was asked to move by that security guard. [70] 2. In evidence-in-chief, the Plaintiff stated that another security guard then grabbed him and asked him to wait. [71] He asked the security guard: "Why? What's going on, I've done nothing wrong." [72] The security guard told him to "just wait" and he complied. [73] 3. In his chronology, the Plaintiff stated that whilst standing in this position, he was grabbed from behind by another security guard and was ushered to a location about two metres from where he was standing to the stairwell area immediately below a light which had been positioned to illuminate the stairs. When he reached that position, the Plaintiff was told to "wait here." [74] 4. In cross-examination, the Plaintiff stated that he could not recall the security guard who had asked him to wait. [75] He stated that he was in front of the grille, people were coming up and he was asked to move out of the way and he may have, but was not sure. He was then told: "Just wait." [76] He later said that the second security guard approached him and he did not say anything initially, and then grabbed him fairly gently and ushered him to a couple of feet away from where he had stood at the top of the stairs. [77] The Plaintiff said that when grabbed by the second security guard he turned around and said: "Hey, what's going on?" [78] He conceded that the security guard with the clicker was not the one who had asked him to wait there. [79] 5. The Plaintiff stated that before the police got involved, he asked if he could speak to the manager. [80] He directed that question to the security guard, but no conversation ensued. [81] He stated that he still had his mobile phone in his hand and was checking it whilst he was being asked to "wait". [82] He marked the location on Exhibit T with the number 3 where he was asked to wait. [83] 6. The Plaintiff was asked to confirm that the CCTV footage [84] would show the Plaintiff's locations and he accepted that it would. [85] 7. The Plaintiff maintained that he was about to leave and did not want to stay on the premises. He stated that if he was asked to leave he would have left but instead was asked to wait. [86] He denied that he was arguing with the second security guard. [87] 8. In his report of serious police misconduct [88] and his statement to police dated 16 December 2011 [89] the Plaintiff also asserted that he was asked by the security guards to "wait here" before being approached by police and taken forcibly down the stairs. [90] 9. Youssef Cheikho was employed as a security officer by Group Services Australia Pty Ltd and was working at the Shore Club on the evening in question. 10. In his statement to police dated 18 December 2011 he stated that on the evening of 2 December 2011, a member of the bar staff whose name he does not know, came up to him and said to him: "There is a guy who appears to be drunk." [91] Mr Cheikho claims that the staff member pointed out the Plaintiff who was standing around the left hand side of the entrance to Level 1 of the Club. Thereafter Mr Cheikho walked up to the Plaintiff and what transpired was described as follows:- "[12] I walked straight up this male and said 'Can you come outside here to talk to me?' The male followed the instructions and came out. I said, 'The bar staff have seen that you appear to be intoxicated.' The male looked shocked and stunned. He said, 'Are you serious?, I've only drunk one. What makes you think that? You wouldn't know if I was drunk. How long have you been working for?' I said, 'That's my job. Your not drunk don't worry'. I called for Mahmoud on the radio because he could then take over my counting while I spoke to the male. The male said, 'Your fucken joking?' I said, 'There is no need for that kind of language'. He said, 'I want to speak to your supervisor'. I said, 'Your going to go back in, don't worry about it'. He said, 'That's a fucken joke'. I said, 'Ah your going'. [13] At this time the police officers were looking at us and this seemed to panic him. The male said, 'The bar staff is a fucken idiot. He can't tell me I'm drunk. Look at this I haven't even finished it'. The male held a beer glass up that was partially full. I said, 'Calm down'. At this time he seemed to become blatantly rude and shocked that he was being thrown out. [14] Mahmoud walked over to me and said, 'What is going on?' I said, 'Take him out and I'll come and write down the report'. Mahmoud said, 'Why am I kicking him out?' I said, 'Because he is being rude. You check if he is showing signs for RSA'. Mahmoud turned around to speak with the male and the male was swearing at Mahmoud. I can't remember the exact words but knew the male was being rude to Mahmoud. [15] It is my opinion that the male was actually not intoxicated and for that reason I was trying to explain to him that he could go back inside the venue. He did not seem to hear or understand me however appeared to be listening and I was shouting to enable him to hear. He kept responding to me by saying, 'Yeah, yeah'. I think he understood me however was angry at even being approached or having been pointed out as being intoxicated when he wasn't. [16] When Mahmoud was trying to escort the male down the stairs the male reached between Mahmoud and I and said, 'I want to talk to the supervisor' as he pointed to the police. I approached the police and spoke to the bigger police officer. I said, 'He's got to go as he is being blatantly rude. We have people coming up and down with only one access. We can't block the stairs'. …" [92] 1. The account of conversation given by Mr Cheikho was put to the Plaintiff and rejected by him. [93] It appears that the Plaintiff accepted that he was in position number 2 for approximately two minutes. [94] 2. The reference in Mr Cheikho's statement to "Mahmoud" was to Mr Mahmoud Almir another security guard working on the occasion in question. Whilst Mr Cheikho's evidence was that he did not consider the Plaintiff to be intoxicated he stated that he asked Mr Almir to "check for if he is showing signs for RSA." However in subsequent discussions with a supervisor Mr Eliki Sagoa (from Group Services Australia Pty Ltd), he claimed that he told him that "no [the Plaintiff] wasn't drunk he got kicked out for being rude." [95] Similarly Mr Cheikho said he told Mr Chaz Tanner, the owner of his employer Group Services Australia Pty Ltd that the Plaintiff was not drunk. Mr Cheikho's statement recorded:- "[20] I just finished my shift that night at 2 am. Chaz called me a couple of days later and I explained to Chaz what happened. I said to Chaz, 'The guy was not drunk. The male was pointed out by male bar staff for being drunk. I assessed him and I am positive that he wasn't. He didn't smell of alcohol. The male swore, swore and swore even after I told him not to swear. I asked Mahmoud to take him out. Mahmoud took over but didn't go downstairs with the man. The police stepped in after I spoke to them and asked them to remove him.' Chaz said, 'Did you see anything that happened downstairs?' I said, 'Mahmoud and I stayed upstairs'". [96] 1. Mr Almir provided a statement to police dated 23 December 2011. He records that he received a phone call from Mr Cheikho to come over. [97] The reason he gives for this was because Mr Cheikho wanted him to take over the counting of patrons while he spoke to the Plaintiff. [98] Subsequent to the further conversations with the Plaintiff, Mr Cheikho asked Mr Almir to take the Plaintiff out for being rude and to check if he is showing "signs of RSA." [99] Mr Almir stated:- "[10] I said that Youssef was trying to communicate to a man. By this I mean the guy was not responding to Youssef. Youssef said to me, 'One of the bar staff said this man was intoxicated and needs to be escorted out. I can't leave my position as I am counting. Can you escort him out?' I acknowledged that request and at this stage the man was being stubborn by not responding. I walked up to the man and said, 'You need to leave'. The man said, 'I'm not drunk'. I said, 'Just walk with me and talk in a quieter place so we can make a decision'. The man said, 'No I'm not drunk, I'm not leaving, I'm not leaving'. The man was very stubborn and direct in how he said this. At this stage the man was blocking the stairs which was interrupting the flow of people up and down. I saw this as a problem and to be an OH & S issue as well at the time. I can't recall the exact timing however do remember the male saying, 'Fuck off' to me. The males tone was rude and arrogant. The male did not consider my opinion to matter. I could not smell intoxicating liquor on this mans breath. This males eyes were a bit red. … [14] In my opinion I did not have time to assess his intoxication levels and for me it was the fact that the male was failing to communicate or follow simple directions and for that reason had to be removed. The whole issue with this man was that he was not responsive at all which problematic. There were too many people on the stairs for us to stay there and chat. I was just trying to move him to an area away from the stairs where we could talk and sought the issue out. The man did not want to listen to me or obey my directions. As a security guard I control the crowd and monitor their behaviour. This male rude and ignorant and would not do as I asked. [15] I did not see anything after the police took the man a couple of steps downstairs. Shortly after this I was asked by my supervisor Eliki, 'What happened?' I said 'The man did not want to respond and the police took over.' Eliki said, 'Was the man intoxicated?' I said 'I didn't have the chance to assess him because he was very rude and unresponsive.' I continued my duties." [100] 1. The account of conversation given by Mr Almir was also put to the Plaintiff in cross-examination and was rejected. [101] The Plaintiff rejected the proposition that at 12:52:49 of Exhibit H 2.1 he was arguing with security. [102] He identified 12:13:03:04 on Exhibit H 2.1 as the point in the recording indicating when he was told to wait. [103] The Plaintiff specifically denied giving the security officer a "gob full" and swearing. [104] 2. On a number of occasions the Plaintiff was shown Exhibit H2.1 at times between 00:12:48:04 and 00:13:10:89. He denied that the footage showed that he was being motioned by security to leave and maintained his account that he was being prevented from leaving. [105] Intervention by police 1. In oral evidence, the Plaintiff stated that after being asked to wait near the stairs he was approached by police officers being firstly a lady police officer and then a male. He stated that he asked the officers what was going on, and they said "Wait" and nobody answered his questions. [106] 2. The Plaintiff's evidence was that the third police officer came over the top of the two officers that were trying to talk to him and grabbed him from around the neck and he was twisted around by that officer, and the second male police officer put his arms behind his back and marched him down the stairs. It is not in issue that the two officers were LSC Church and SC Renshaw. [107] The Plaintiff was then marched down the stairs to the ground level of the Shore Club by LSC Church and SC Renshaw. As he was being forcibly taken down the stairs, the Plaintiff asserts that he said words to the effect of: "Why are you doing this to me? I have done nothing wrong." [108] He stated that one officer had his right arm, and another officer has his left arm, and they were either side of him. [109] 3. The Plaintiff stated that as he was going down the stairs first, and no incident occurred as he was being escorted down the stairs. [110] 4. In cross-examination the Plaintiff stated that he was grabbed by the throat or the top of his chest. [111] Later he stated that he was not pointing to his neck but was pointing in the general area around the throat. [112] He was taken to Exhibit H 2.1 and stated that it showed that SC Renshaw grabbed him by the "top of my shoulder or my neck". [113] He denied resisting police as he came down the stairs and stated that he definitely did not hear SC Renshaw state "Stop resisting [114] and the Plaintiff did not believe that it was said because he was not resisting. [115] 5. A broadly similar account was given in the Plaintiff's report of serious police misconduct [116] and the Plaintiff's statement to police. [117] 6. The evidence of Mr Cheikho at this point was:- "[16] … I could see the police watching me talk to this man the whole time. The three police went straight to Mahmoud. The male was still standing on the top of the stairs at this stage and was peaking with his anger. The male looked really angry and kept saying 'I'm not drunk'. He was boiling up and kept asking 'Why am I getting accused'. He seemed very frustrated with us. [17] The police walked up and said, 'You're going'. The male said, 'Can I tell you what happened?' The police escorted him downstairs to clear the access way. I didn't see physically how the police took the man downstairs." [118] 1. The evidence of Mr Almir at this point was:- "[11] The man did not want to respond to my request and it is my opinion this was observed by the police. That is why I think they came to assist. Two male police officers were standing on level 1 near us. I think they could see that the man was not responding to my request. It was then the two male officers intervened by taking over from me. [12] I heard one of the officers say, 'Come on mate lets go'. The man said, 'No I don't want to'. The police took the man by his arms and the man said, 'Don't touch me' and was trying to push the police away from him. The two male police held one arm each and escorted the male down the stairs. I only saw the male be moved down about one or two steps before I turned and walked back to my position." [119] 1. Constable O'Donnell stated that for a year prior to her statement she had been a licensing officer having completed the licensing education programme and had attended and completed both a Breath Analysis Operator course and safe custody course. She stated that the entirety of her service of two and half years had been at Manly which has approximately 200 licensed premises. [120] She further stated that in the course of her time with police and in her personal life she has observed thousands of persons affected by alcohol in various stages of intoxication and is able to accurately classify a person from being sober to severely affected. [121] 2. On 6 December 2011 at 12:34pm, Constable O'Donnell made an entry on the COPS referrable to the attendance by the police at the Shore Club on 2 – 3 December 2011. In reference to the Plaintiff, the entry merely recorded:- "While at location, Police dealt with a fail to quit from the first level E … relates" 1. Constable O'Donnell's notebook entry of 28 December 2011 referred to observation of the Plaintiff swaying as he was standing and appeared to be arguing. She states that she approached and security said:- "… something along the lines of 'he has been asked to leave, he is intoxicated'. The male then said to me 'what have I done?' I said you are intoxicated and you have been asked to leave. It's time for you to leave.' He then said 'but why?' L/S/C Church walked up and said 'Mate you are intoxicated and have been asked to leave the premise by security due to your intoxication. At this time I'm asking you to leave the premise. The male said 'but why do I have to leave'. S/C Church then said I have already stated to you why you have to leave. If you do not leave you will be committing an offence. You have to leave now. The male then said 'No.'" [122] 1. The statement from Constable O'Donnell of 22 February 2012 reads:- "[12] Senior Constable Church and I walked back to the entry of the level where I continued to make observations of the level. At this stage I was standing opposite the stairs that lead to the second level. I looked behind me and observed a male speaking with security. This male appeared to be intoxicated as he was swaying whilst standing on the spot. I would describe this male as medium build, bald head, wearing jeans and a black leather jacket. [13] I have looked away towards Church who then said to me "he's intoxicated" while pointing behind me, I turned around to see who Church was pointing at and he was pointing at the same unknown male I had observed. At this point, I continued to observe the male and security that appeared to be arguing as the moved towards the top of the stairs. The unknown male continually pointed at police while saying something which I could not hear. It appeared that the security were trying to direct him down the stairs. [14] I walked over the security and the male in an attempt to find out what was happening. The security officer said something along the lines of "he has been asked to leave, he is intoxicated'. The male then said "What have I done ?" where I said "You are intoxicated and have been asked to leave. It's time for you to leave". The male then said "But Why?' After speaking with the male, it confirmed my view that he was intoxicated as he was slurring his words and smelt of intoxicating liquor (emphasis in original)." [123] 1. In a second COPS entry inserted on 19 December 2011, LSC Church stated:- "… LSC CHURCH and CST O' DONNELL approached the bar area and watched a number of patrons being served and their interactions with staff. No glass was sighted nor were any shots sold while police were at the location. At this time police witnessed a member of staff having a conversation with the accused. The accused is described as (??????????). Police could not hear the conversation however watched as the staff member ended the conversation and walked directly to the security guard who was monitoring from the entrance. Police observed that the accused was swaying slightly from side to side. Shortly after, the staff member turned and pointed out the acvcused to the security guard. At this time the security guard has approached the accused and asked him to accompany him out into the stair well. Police watched the conversation between the accused and security guard however were unable to understand what was being said. The security guard then called a second security guard over to speak to the accused. At this time Police had a short conversation about what was occurring and approached security and the accused." [124] 1. In his statement of 22 February 2012 LSC Church refers to observing the Plaintiff's interaction with a member of staff who he refers to as Mahmoud Mahmoud. The statement reads:- "[7] CST O'DONNELL and I approached the bar area and watched a number of patrons being served and their interactions with staff. Due to current licence stipulations placed on the Shore Club, I was paying careful attention to what drinks were being served, what the drinks were being served in and the intoxication levels of the patrons purchasing the alcohol. [8] At this time Police witnessed a member of staff, who I now know to be Mahmoud MAHMOUD, having a conversation with a male, who I now know to be the accused, Charles THOMLINSON. I could not hear the conversation however watched as MAHMOUD ended the conversation and walked directly to the security guard who was monitoring from the entrance. Police observed that THOMLINSON was still standing in the same position and swaying slightly from side to side. [9] A short time later, MAHMOUD turned and pointed out THOMLINSON to the security guard. At this time the security guard has approached THOMLINSON and appeared to ask THOMLINSON to accompany him out into the stair well. [10] I watched the conversation between THOMLINSON and security guard however I was unable to understand what was being said. The security guard then motioned for a second security guard to move towards him and THOMLINSON. At this time I had a short conversation with Constable O'DONNELL and Senior Constable RENSHAW about what was occurring. Constable O'DONNELL, Senior Constable RENSHAW and I then approached security and THOMLINSON, who were standing in the stair well at the top of the first flight of stairs." [125] 1. LSC Church's COPS entry of 19 December 2011 and statement of 22 February 2012 asserted that there was a conversation in which he asked security: "Is everything OK?" before obtaining a response: "This male has been asked to leave because he is intoxicated but he won't leave." [126] Constable O'Donnell and SC Renshaw give similar accounts. [127] 2. A conversation with LSC Church is then recorded to have taken place in which the Plaintiff was said to be have been told that if he did not leave he would be committing an offence. [128] 3. SC Renshaw's notebook entry of 3 December 2011 does not describe detailed observations of the Plaintiff but stated:- "POI was asked repeatedly to leave premises by security, bar staff and police due to his intoxication." [129] 1. Nevertheless in his statement of 10 May 2012, SC Renshaw recorded:- "[5] Leading Senior Constable CHURCH, Constable O'DONNELL and I have entered the premises and observed the intoxication levels of patrons on the ground floor of this premises. After a few minutes Leading Senior Constable CHURCH, Constable O'DONNELL and I have walked upstairs to the first floor level of the premises. I have stood just inside the entrance to this level and monitored patron numbers and intoxication levels. Leading Senior Constable CHURCH and Constable O'DONNELL have then approached the bar located on this level. After a couple of minutes I have seen the Accused Charles THOMLINSON standing at the southern end of the bar, he was being spoken to by bar staff. I have maintained observations of the Accused who was unsteady on his feet whilst standing at the bar as he was swaying from side to side. The bar staff has then gestured towards security by waving his hands at security that were standing near the entrance of this level. Security has then approached the Accused and had a conversation with the Accused before he has then escorted the Accused towards the stairs. The Accused has stopped at the top of the stairs on level one and was seen having a conversation with security for a couple of minutes. [6] I Said – 'I think we should go over, as I think security need some help.' [7] Leading Senior Constable CHURCH, Constable O'DONNELL and I have then walked to the top of the stairs to where the Accused and two security guards were standing. [8] Leading Senior Constable CHURCH has then spoken to security 'Is everything OK'. Security replied 'This guy has been asked to leave as he is too intoxicated, and he won't leave.' [9] Constable O'DONNELL Said – 'Mate, you are too intoxicated and been asked to leave, it's time for you to leave.' [10] The Accused Said –'But why?' [11] Leading Senior Constable Church said – 'I am Senior Constable CHURCH from Manly Police. You have been asked to leave this premises by security as you are too intoxicated. I am asking you to leave the premises'. [12] The Accused Said – 'But why'. [13] Leading Senior Constable CHURCH Said – 'As I have just told you, you have been asked to leave due to your intoxication levels.' [14] The Accused Said – 'But why'. [15] Leading Senior Constable CHURCH said – 'Staff at every licensed premises have the power to ask persons to leave their premises. You are committing an offence if you stay. So you must go now.' [130] 1. SC Renshaw states that in response the Plaintiff replied "Fuck you I am not going." [131] Constable O'Donnell said the Plaintiff said merely "No," [132] as does LSC Church. [133] Plaintiff removed after first alleged assault 1. The Plaintiff stated that when he reached the ground level, he was in front of the two police officers and they still had him, respectively, on the left and right arms behind his back. [134] He stated that after he reached the ground floor at the foot of the stairs, the officers escorted him directly towards the exit of the Club, and that at the entrance he was forcibly thrown down onto the floor without any warning. [135] He stated that there was no conversation with the police officers who had grabbed him at the top of the stairs. [136] 2. Immediately thereafter, the Plaintiff described what happened as follows:- " As I lay face down on the floor I felt the weight of a - somebody jump on my back with his knees either side of my spine. I then felt my hands being pulled behind my back quite forcibly into a position to have handcuffs put - put on my hands and I then felt the person on my back lift his - lift his leg and with great force hit me with his knee right in the base of my spine." [137] 1. He described the officer who did this as being approximately "6 foot 4, over 100 kilos" and was wearing a blue "baseball cap style" hat and black gloves. [138] He said that he asked the officer to get off his back as he was hurting him, but was given no response. He stated that he asked: "Why are you doing this to me? I've done nothing wrong." [139] He stated that he received no response. [140] Thereafter he remained on the floor for a few minutes and was lifted by the police officers and escorted with his hands cuffed behind his back, off the premises and across the road. [141] 2. On reaching the landing at the foot of the stairs, the Plaintiff asserted that he was forcibly thrown onto the floor near the entrance of the Shore Club by LSC Church and SC Renshaw. The Plaintiff's evidence was that as he went down the stairs, he did not struggle [142] and did not hit any police officer either deliberately or accidentally. [143] 3. In cross-examination, the Plaintiff stated that at the bottom of the stairs, he turned to his right to see who was twisting his arm and saw a police officer wearing a hat. He described the officer as "large and strong … well-built, about 6 foot 4 in height, wearing black gloves and a blue police cap." He stated that he asked: "Why are you doing this to me? I have done nothing wrong." He stated that he was given no verbal reply, was forcibly thrown to the floor face-down and landed on his chest. He said that he was pushed to the floor about five metres from the stairs. [144] 4. In his report of serious police misconduct the Plaintiff complained that he was thrown roughly on the floor and was hurt when he landed. He said a police officer then jumped on his back and put handcuffs on him. [145] 5. In his police statement said after he hit the floor, he felt the weight of someone jumping on his back on either side. He said he turned around and saw the person on his back was the male officer in the blue cap. [146] He said that he remembered his arms being pulled behind his back and handcuffs being put on his wrists which he believed was an action by the female police officer as the males were holding his arms. [147] He further stated that he could not see other persons at the time other than the police officers on top of him, however he was aware of people to the left to him and could remember hearing their reactions, including one person saying: "There was no need to do that." [148] 6. He stated that he did not struggle on the floor. [149] 7. The Plaintiff's evidence was that he experienced pain in his lower spine and ribs [150] as a consequence. As he was escorted by the officers, he looked at the officer who he asserts hit him in the back and shouted: "some pretty strong words to him and I said 'I think you've broken my back.'" [151] He stated that as he was escorted across the road, he looked over his shoulder and called "the guy that did this to [him] … a fucking asshole," [152] and asked: "Why did you do that?" or words to that effect. [153] 8. In cross-examination, the Plaintiff viewed Exhibit H1 on Camera 17 at 12:19. When put to him that the footage did not show jumping on his back he replied "I think I alleged that I felt some jump on my back." [154] 9. Two other witnesses gave evidence regarding what happened at this time. 10. The first was Ms Hayley McKirgan who worked at the Shore Club, having first commenced in June/July 2011. Although she had obtained a certificate in Responsible Service of Alcohol, on the occasion in question she worked as the night key attendant responsible for scanning patrons' fingerprints and also their identification in order to create a profile. [155] She stated that at the relevant time she was working with Ms Honora Campbell. She stated that she was working "just inside" the doors of the Shore Club. [156] Her evidence was that she first heard the words "get down, stay down" uttered by a male voice. [157] She stated that they would have been loud because there was music. [158] She heard this from behind her, to the right [159] and then turned around. [160] At that point she claims she saw a man on the floor, face down being arrested, with two police officers. [161] She stated that there was also a woman on the left of the Plaintiff [162] closest to her. [163] She stated that the larger male policeman was on top of the Plaintiff and the other man stood next to him on the right hand side. [164] She said that the larger man was on the Plaintiff with his knee. [165] She claimed that she saw police trying to put the handcuffs on him and the officer on his back [166] She recalled the woman police officer saying: "Do you want these?" [167] referring to the handcuffs. [168] She stated that the handcuffs were applied to the man and then he was marched to the wall opposite to the Club and sat down on the wall. [169] Thereafter she claims she resumed her night key duties. [170] She stated that the man disappeared and the van drove off as she resumed her duties. [171] She said that she was not in a position to make an assessment as to whether the man was intoxicated [172] but did not see any violence from him. [173] 11. In her evidence-in-chief, she accepted that she made two prior statements relevant to the matter. The first was made at the request of the Plaintiff. [174] In the statement made by Ms McKirgan, she was "pretty certain it was before, but not 100%" she gave a statement to the police. Her evidence was that she made that statement on stationery provided by the Plaintiff, who had asked her to complete a statement and showed her some CCTV footage on his laptop, an x-ray and discussed "a little bit about what happened." [175] Ms McKirgan's recollection of the CCTV footage appeared to extend beyond the events she saw at the base of the stairs. [176] When asked what the Plaintiff had told her at the time, Ms McKirgan responded:- "Q. He was telling you, was he, that he wasn't drunk and things like that? A.I don't remember exactly what he told me. I just remember him telling me that he'd hurt his back and he was taking it further and that he'd been taken off out to, I think it was Curl Curl, but I can't be sure and they wouldn't - the police wouldn't take him to hospital and he had to get a taxi to a hospital and he said that he was innocent. Q. He told you he had to get a taxi to the hospital? A. Yes." [177] Ms McKirgan was not otherwise cross-examined in relation to this statement. 1. In her statement provided to the Plaintiff, she noted:- "I was scanning a customer's finger & suddenly became aware of police shouting 'get down'. I turned to look back & 2 male police officers were detaining a bald man in a black coat. There was a woman on the side & she said to the man something like 'you want these' she was reaching for handcuffs & couldn't get them out, this whole time the 2 men were both on the mans back, they pulled his arms back quite forcefully & then the woman put the handcuffs on. The man was face down the whole time, he was not resisting arrest, he looked subdued. The bigger man was the one mainly on his back, but the other man was too. They then lifted him up & lead him across the street, they sat him on the wall. He looked upset & desperate to talk to someone. I do remember a police man listening & nodding his head with his hands in his vest. The policeman was not aggressive. The arrested man was not aggressive & I remember being surprised by this because the way they brought him down it was like he had done something really bad. I even said this to my colleague on the door. I didn't seem them load him into the van, but I saw the van drive off, there was another vehicle present too and about 4 or 5 police officers." [178] 1. Ms McKirgan was also taken to her statement given to police on 24 December 2011. [179] She stated that there was nothing in her statement, as far as she knew, that needed to be corrected. [180] In the police statement, Ms McKirgan stated:- "[7] I would say about three weeks ago during one of my evening shifts I remember an incident occurring involving police and a male customer. I can't recall what night it was however I can estimate it was about 12.30am. I remember I was working with Sanae and Honroa who were also at the front door with me. I don't know either of their surnames. [8] On this night I was standing at the front entrance to Shore Club scanning someone's finger when I heard a male voice say, 'Get down, stay down.' The music is loud however you can still hear people talking if you are close to them. I turned around as when I heard the comment my back was facing the inside of the club. [9] I turned around and saw a man faced down on the ground in the foyer area of Shore Club. I saw three police officers. The lady officer was standing to the left of the man on the ground. One male officer was kind of holding the male down near his shoulders, helping the other male officer. This officer was low, near the man. The other male officer was kneeling on the back of the man to keep him down. I just remember one knee was on the man's back, I don't remember two knees particularly being on the man's back. Part of the officer's weight was clearly on the man's back. I say this because that is how the officer was holding him down on the ground. The man on the ground was blocking the lower half of the officer's body, I can only say I saw one knee on the man's back and can't say where the other leg or foot of the officer was positioned. [10] I can say the officers knee was somewhere on the lower back of the man, but can't be more specific. [11] The man was completely faced down on the ground. The officers pulled the man's hands back to behind his back and the lady officer handcuffed him. I could see the man's face was screwing up, I thought it was because the officers were pulling back his arms quite forcefully. [12] I did not see or hear the man on the ground say anything to police and he was not struggling in any way. It did not appear to be easy for the police to pull his arms back to handcuff but I think that was more positional rather than because of the man struggling. [13] The man did not say anything after that, I was about two metres away so I might not have been able to hear any conversation if it did take place. [14] The police lady put the handcuffs on the man and the two male police officers kind of hoisted the man up by his arms to his feet. The policeman marched him across the road and sat him on the wall facing Shore Club. I continued watching the incident and saw the man appeared to be pleading with police. I say this as the man's facial expressions made me think that. [15] I saw about two more police already across the road when the three police who arrested the man walked him across. [16] The man was looking up and speaking to a policeman. I can say that it was definitely not the large policeman mentioned above or the lady. I can not describe this policeman any further as he had a cap on and his head was down. The policeman was standing next to the man in a casual way. I saw the policeman nod his head up and down. He appeared to be listening to the man speak. The man who got arrested seemed to be doing all of the talking. [17] At this stage I was about ten metres away from where the man was sitting on the wall opposite Shore Club and I had a direct view. There was nothing in between me and them." [181] 1. In cross-examination, Ms McKirgan stated that she only saw one knee in the Plaintiff's back. [182] It was also put to Ms McKirgan that the Plaintiff would not have surrendered his arms at the time that she saw him. She rejected this, and stated:- "I don't think that it was that he wouldn't surrender his arms. It was just the position because the officer obviously had his knee on his back and trying to get his arms around and then the woman had messed up getting the handcuffs out. I remember it being a bit awkward and them taking a long time to put the handcuffs on. So they kept pulling his arms back, but he wasn't resisting. It was just the position he was in. It was very awkward." [183] 1. Ms McKirgan was also challenged in relation to her statement given to the Plaintiff that she was surprised by the way they had brought him down "like he had done something really bad." She stated that she could not state for certain now, but she definitely saw him face down. [184] She marked with an X on Exhibit T, the location she was at, at the time of her observations. It was then put to her that she did not see the Plaintiff come down the stairs with the police and she responded that she may not have seen him coming down the stairs, but she definitely saw him face down on the ground. [185] She had earlier confirmed that she did not see anyone "jump" on the Plaintiff's back. [186] 2. The Plaintiff also called Ms Honora Campbell to give evidence. She was also working at the Shore Club on the night in question with Ms McKirgan. [187] She also had qualifications in RSA. [188] Her evidence was that on 2 December 2011, she saw the Plaintiff being escorted down the stairs with three police officers. [189] She stated that as she observed the incident, she did not at any stage observe any stumble or fall, either on the part of the Plaintiff or the three police officers. [190] Her evidence was that she was working inside the swing doors, identified in Exhibit T on the left hand side. She stated that from that position, her view was not obstructed. [191] She described her observations in the following exchange:- "Q. Having reached the foot of the stairs you saw that happen, do you say? A. I saw police escorting Mr Thomlinson away from the staircase from about the bottom of the staircase and down through what you have labelled here as the ramp, or we would have called the hallway. Q. In the hallway what did you observe happen? A. I saw Mr Thomlinson be, for lack of a better word, put to the ground. His hands were behind his back and I saw him be held on the ground with his hands behind his back. Out of the three police officers, there was a larger one and he, in my view, looked like he had one leg to the side, over the top. So if you would imagine that someone was sitting on someone's back, there was one knee to one side and I believe one knee on the other side. So that would've been the police officer's right hand - right knee. Q. So you saw Mr Thomlinson brought to the ground. A. Yes. Q. Or put to the ground did you say? A. Yes. Q. And you have said something about the larger of the police officers? A. Yes, I believe he was the one that was again, for lack of a better word, on top of him. Q. Did you see any particular part of that police officer's body do anything relative to Mr Thomlinson? A. Yes, as I said, I believe his knee - his - what would've been the police officer's right knee on top of Mr Thomlinson's back, pinning him there. Q. Could you make any judgment as to how forceful or gentle that was? A. Yes, the whole incident from the moment we - I first turned around and looked, it would've - was over my right hand shoulder up towards the - to look at the stairs, the whole incident seemed quite forceful. It looked like he wasn't struggling, he was just turning around asking what was going on and why it was happening and the whole motion of him being from upright to the ground seemed very harsh to me, in my opinion." [192] 1. Ms Campbell agreed that about two weeks after the incident, the Plaintiff came to the Club, explained his perspective as to what had happened, and asked if she had seen anything. Ms Campbell agreed to make a statement. In that statement, Ms Campbell stated:- "I, Honora Campbell, witnessed on Friday, December 2nd 20[…] he a man who I know to be Charlie Thomlinson detained on the ground next to the entrance by three police officers. This man did not appear to be resisting, be argumentative, or drunk. From what I saw the police were very heavy handed in restraining the man. His 'offence' was unknown to us, so all we had to go off was the 'arrest'/detainment. I hereby give this statement for the purpose of fact statement as to the date, time + procedure the police used, which in my opinion was heavy handed.' [193] 1. Subsequently, on 6 January 2012, Ms Campbell made a statement to police where she stated:- "[5] On Friday, 2 December 2011, I commenced my shift at The Shore Club Hotel at 9pm and took up my position at the entry to the club with the Night Key machine. I was working with another female named Hailee who was operating the other machine. I am not sure of her surname. [6] I can remember that this particular night was extremely busy and there had been a fairly constant stream of persons entering the club. I did not move from my location more than twice throughout the evening, only leaving to go to the bathroom for a short period. [7] After about two hours into my shift, I was standing at the entry next to the Night key machine. I remember there was a break in persons coming through the door, it was quite loud where we were and I was looking around up the hallway which leads to the stairway. I saw a male who I would describe as fairly skinny build, average height, pale skin, shaved head, blue eyes wearing a jacket, jeans and trainers. This male was being escorted by two male Police Officers and one female Police Officer walking next to them. I cannot recall what these Police Officers looked like however can recall one of the officers was quite big with brown blonde hair. [8] I saw from about halfway up the stairway that the officers were holding each arm on either side of the male. I did not see anything that happened on any higher level of the staircase. At this time they were walking down the stairs towards the exit. When they reached the bottom of the stairs, they continued to walk closer towards us. At a point about halfway between the base of the staircase and the entry where we were standing I saw the male be put to the ground face first. I had visual contact with all four persons from the moment they entered my vision. [9] The Police Officers put the male to the ground quite harshly, I figured that they had to use force to put someone to the ground. It appeared heavy handed to me but I was conscious of the fact that I did not know what the male had done and therefore could not make a judgement upon whether the force they used was warranted. The male was face down on the ground close to where we were standing. Hailee and I moved to the side in order to create room. [10] One Police officer was holding the male to the ground. I would describe him as the largest one of them all. The Police Officer has his arms behind his back and had pinned to the ground face down. The Police Officer was positioned on top of him and seemed to have one leg next to him and one leg either on the other side or on top of him. The other male Police Officer was next to the larger police Officer and the female officer was next to them but a little in front. From where I was I could see that his hands were bound the whole time so I can't remember seeing the handcuffs being put on the male. I would have been about 5 metres away from where the male was positioned. [11] The male was saying, 'I haven't done anything wrong, I don't understand'. He did not appear to be resisting or struggling at this time and in my opinion did not appear drunk. [12] The male was picked up by the two Police Officers and walked outside across the road from The Shore Club Hotel. After the male was taken across the road by the Police I went back to work and did not watch what was happening." [194] 1. Ms Campbell's evidence was that she did not believe that the Plaintiff was intoxicated [195] and that the Plaintiff kept saying: "I don't understand. I don't know why this is happening." [196] Further, Ms Campbell's evidence was that she saw police take him across the road, towards a police car parked on the opposite side of the street on a paved area in front of the beach. [197] So far as she could recall, his hands were behind his back. [198] In cross-examination, Ms Campbell could not recall police saying anything to Mr Thomlinson. [199] She was asked to describe how the Plaintiff was put to the ground. Her evidence was as follows:- "Q. How was he taken to the ground? A. I don't really know how to describe it. There was a movement that I observed. I can't really say how he was taken to the ground. Q. So he's moving along and the next thing-- A. I observed a motion that I saw from them being upright to then him being put on the ground. Q. But you don't, you can't remember the mechanics of how he went to the ground, is that right? A. Well, not necessarily. I mean, how does one walk? I mean, you put one leg in front of the other; it's just, I don't know, you - he was being moved. Q. You can't assist your Honour any further with the description of how he was taken to the ground, can you? A. He was pushed forward, like, moved forward, there was a motion from them standing to them being on the ground. As - I can't really offer them any more mechanics besides that. Q. This happened all very quickly, didn't it? A. Not so quickly; I mean, a couple of minutes or so. It wasn't in 30 seconds that I remember. Q. Do I take that to mean from the moment you first heard a noise or any noise that caught your attention to the point in time that Mr Thomlinson was taken to the ground it was a couple of minutes? A. I would say so, yes. Q. It took quite a bit of time, did it, for them to move him from where you first saw him to the location at which he was on the ground? A. Well, yeah, a couple of minutes. Q. It must've been the words from Mr Thomlinson, "I haven't done anything wrong" that you first heard, is that right? A. I think he was saying, "I don't understand". He may've said "I didn't had, I didn't do anything wrong." Q. You first heard those when he was on the stairs, is that right? A. Well, as far as I could hear that was humanly possible from me to where they were. So I wouldn't say the foot of the stairs 'cause that was a bit more of a distance. I would say it would be halfway between the stairs and the entrance." [200] 1. Ms Campbell's evidence was that she remembered the Plaintiff's hands being behind his back but did not see any handcuffs. [201] Nor did she recall security guards coming up and surrounding the Plaintiff with police. [202] She stated that there probably would have been security because "we worked in a nightclub." [203] She was then shown Exhibit H and conceded at 1:30 there was commotion and she turned around, and walked away. She accepted that security guards arrived. [204] So far as conversations were concerned, she stated that she remembered what she had heard. [205] Ms Campbell was challenged as to her assessing the Plaintiff for sobriety. The following exchange ensued:- "Q. I don't think I've asked you this, but you didn't assess him for sobriety, as if you were serving someone at a bar that night, did you? A. Well, you kind of observe everyone really. It's our job. Q. No, I didn't ask you whether you observed him. I asked you whether you, as if you were serving at a bar, assessed him for his sobriety. You didn't, did you? A. Well, the context was different, but no." [206] 1. Ms Sanae Edwards was also assisting with the night key machine, scanning identification at the Shore Club on the evening in the question. She did not give oral evidence, however a statement given to police on 30 December 2011 was tendered. Relevantly, that statement reads:- "[6] I don't know what the date or day was however recall an incident that happened late into my shift. I can't even recall who I was working with that evening however remember an incident where a male was resisting arrest and handcuffed by the police. I remember seeing yellow jackets of security guards around at the time however couldn't tell you who they were. [7] At the time I was near the scanners at the front door to Shore Club, closest to the stairs. I saw a man on the floor with a few policemen on top of him. The police people were wearing uniform at the time of this incident. I did not see how he got to the floor or where he came from. The man on the ground had a bald head but that's all I can remember. [8] The man had one of his hands above his head whilst on the ground and the policeman was trying to move the hand to behind his back. The man was fighting against the policeman. I could see the strength in the man's arm as he resisted the policeman moving his hand to behind his back. I can't recall the man on the ground saying anything. [9] I can't remember the policeman saying anything. I'm sure they were talking just don't recall what they were saying and you couldn't hear over the music anyway. I think there were two policemen and one police lady there. [10] I can't remember anything specific about either of the policeman. I have a feeling one of the policeman had his knee on the man's back to hold him down and I can't really recall what the other policeman was doing however he was helping by holding the man down somehow. [11] I did not think in anyway the policemen or lady was being over zealous in how they were controlling the man. If anything the man on the ground seemed to be aggressive and they were trying to control him. The handcuffs were put on the man's wrists at the back of his body. [12] I saw the police people walk the man out of Shore Club and across the road. Everything at work just went back to normal after that so I did not take any further notice of what was happening across the road." [207] 1. Mr Sandeep Narwal was also employed as a security guard on the evening in question and was positioned at the front door of the Shore Club on the occasion in question. His task was to ensure that patrons scanned their fingerprints. 2. His statement recorded that he noticed the three girls looking inside the Club and he turned his attention and saw three "coppers" and a male patron on the floor in the walkway just behind the machines and outside the entrance to the smoking area on the ground floor. He gave an account of his observations [208] and referred to the fact that he made an entry in his notebook which he copied onto paper supplied to him by the Plaintiff. In that account he stated:- "What I saw 2 police (males) on the back of the guy and a female police put handcuff on. And the guy was restrained. And a big police officer wearing hat jumped on guys back. And guy was saying please tell me what I have done wrong. Leave me please. Then they took him away." [209] 1. Mr Eliki Sagoa was also working on the evening in question at the Shore Club and was a security officer engaged as a supervisor responsible for the "responsible services practices, safety hazards, and number of persons entering the hotel." He saw the Plaintiff at the Shore Club that evening but only after the Plaintiff was being carried out down the stairs. 2. Mr Sagoa filed out an incident register [210] on 3 December 2011, after the occasion in question. In the incident register, Mr Sagoa ticked the incident as involving "violence/aggression, intoxication, and failing to quit." As noted earlier Mr Sagoa stated that the information on the incident register was entered as a result of what two guards told him. [211] Bearing in mind the contents of his statement, I accept that the two guards in question were Mr Cheikho and Mr Almir. [212] 3. Mr Sagoa completed a statement for the Plaintiff which was undated but I am satisfied was made before he made a police statement on 23 December 2011. In the undated statement, he observed that the Plaintiff was, not intoxicated or resisting arrest. [213] 4. A statement provided to the Plaintiff by Mr Sagoa recorded:- "Two male police officers dragged a male patron down from level two making their way to the front door of the venue. From where I was standing and what I saw I had to clear the walkway. This was due to the way the patron was being carried out. Approximately two metres away from the front the male officers threw or dropped the male patron to the ground. The male patron was on his stomach. The male patron was wearing a black shirt, dark pants, shaved head, slim fit build. As the male patron was on the ground the male officer on the left jumped on his back with his knee pushed against the male patron." [214] 1. A police statement provided by Mr Sagoa dated 23 December 2011 recorded:- "[6] … I first saw them when they were at the bottom of the stairs on the ground level. The patron had one male officer on each side holding his arms. As soon as I saw them I started clearing the walkway as there were other club patrons in the area. As they were coming towards me, about two or three steps away from the front door, the male patron dropped to the ground on his stomach, I don't know whether he fell or was pushed or whether they stumbled but he ended up on the ground. The male officer that was to the left of the patron knelt down towards the man and put his hands together behind his back. At this time I saw a female officer put the handcuffs on the male patron. The male officer was to the right of the patron on the wall side was standing there watching everything that happened. I don't recall seeing this officer been involved in the arrest. The officer that knelt down beside the patron had one of his knees on the back of the male patron to hold him down while the female officer put the handcuffs on him. I didn't see the officer place his knee on the patron as I was trying to tell the other guard Sandeep to not get involved. When I saw the man drop to the ground, he didn't appear to be struggling with the police. I can recall the patron saying similar words to 'why are you doing this to me.'" [215] 1. In a subsequent statement to police dated 18 January 2012, Mr Sagoa was asked to clarify the variance in the two statements as to seeing the officer place his knee on the Plaintiff's back, Mr Sagoa stated:- "[4] Yes I meant that jumping was not like jump but to explain that the officer was on the back of the patron holding him down and had the knee placed somewhere on his back." [216] 1. Mr Sagoa's police statement of 23 December 2011 then recorded the following:- "[9] After the incident I walked up to level one and spoke to Yousef, another security officer. (He told me that the patron was from level 1 and that the bar staff told him to check him for RSA. He said that he spoke to the patron and he said that he believed that he wasn't intoxicated but I didn't get the whole story and I am not sure what happened between them. But I can recall that Mahmoud's view was that he was intoxicated). [217] [10] Prior to finishing duty that night I made an entry in the Hotel's Incident Register. Incident Report Number 992902 (Part B). I also made a report on Part A. Part B has the most detail and Part A just has a referral to Part B. On the form I ticked boxes relating to Violence/Aggression, Fail to quit and intoxication. I ticked these boxes as a result of what the two guards told me. Mahmoud believe that he was intoxicated and that he swore at Yousef." [218] 1. In the COPS entry of 19 December 2011, LSC Church recorded:- "Leading Senior Constable CHURCH and Senior Constable Renshaw started to walk the accused down the stairs when the accused began resisting and pulling his arms away. Due to the strong motion of the accused, Leading Senior Constable Church lost grip on the accused arm which caused the accused elbow made contact to Leading Senior Constable CHURCH right jaw. This caused immediate pain to Leading Senior Constable CHURCH jaw area. Leading Senior Constable Church then attempted to again take hold of the accused arm however the accused started to pull the Police off balance down the stairs. Due to other patrons being on the stair well and both Police officers and the accused attempting to descend the stairs at the same time, the accused struggle cause all persons to lose balance and land heavily the ground at the bottom of the stairs. Police are unsure exactly what cause the fall or how each person landed. The accused was then handcuffed by Constable O'Donnell and whilst Leading Senior Constable CHURCH and Senior Constable RENSHAW controlled his arms." [219] 1. In the first penalty notice issued on 20 December 2012, LSC Church recorded: "LSC CHURCH and CST O'DONNELL also requested the male leave the Shore Club however he refused. He was escorted from the Shore Club and arrested for Breach of the Peace. The POI was told on no less than 20 occasions why he was arrested and why he had been asked to leave." [220] 1. In his statement of 22 February 2012 LSC Church stated that in compiling that statement, he refreshed his memory from Police Event Number: 48552289, his official issued notebook: 49230 and SC Renshaw's official issued notebook: 505720. [221] 2. In that statement, LSC Church recorded- "[14] Senior Constable RENSHAW and I started to walk THOMLINSON down the stairs. At this time, other patrons were on the stairwell both above and below Senior Constable RENSHAW, THOMLINSON and I however there was enough space for Senior Constable RENSHAW, THOMLINSON and I to walk down the stairs together. [15] THOMLINSON then began resisting and pulling his arms away. THOMLINSON was twisting his wrists and pulling his arms in then away from his body. Due to the strong motion of THOMLINSON and the sweat on THOMLINSON wrists, I lost grip on the accused left arm which caused THOMLINSON left elbow to rise and make contact with the right side of my jaw. This caused immediate pain to my right jaw area. This occurred about half way down the bottom flight of stairs which leads into a small walk way area that exits the Shore Club. [16] I attempted to regain my grip on THOMLINSON left arm however THOMLINSON started to pull me off balance by pushing his body sideways into mine and moving his arm backwards and forwards so I was unable to regain my grip. [17] Due to this continued struggle by THOMLINSON, Senior Constable RENSHAW, THOMLINSON and I all lost balance and fell down the remaining few stairs, landing heavily of the ground at the bottom of the stairs. I am unsure exactly what caused the fall or how each person landed. I landed to the left hand side of the accused and regained control of his left arm. Senior Constable RENSHAW and I had a brief discussion. Senior Constable RENSHAW and I then manoeuvred THOMLINSON arms back behinds his back and I instructed Constable O'DONNELL to handcuff THOMLINSON I was squatting down on the left side of THOMLINSON with my knees above THOMLINSON left shoulder and arm however my knees were not actually making contact with THOMLINSON. I was holding on to THOMLINSON left wrist and hand with both my hands. I did this to control his arm so Constable O'DONNELL could handcuff THOMLINSON. This is an approved New South Wales Police handcuffing procedure. I noticed that Senior Constable RENSHAW was in exactly the same position as I was however he was on the right side of THOMLINSON and controlling his right arm and hand. [18] During this handcuffing procedure, THOMLINSON continued to yell words to the effect of, 'Why do I have to leave. Why do I have to leave.' I said to THOMLINSON, 'You are under arrest for a breach of the peace and he would be removed from the area. You have also committed the offence of 'excluded person remain on premise'. THOMLINSON replied, 'But why'. [19] At this time, Senior Constable RENSHAW, Constable O'DONNELL and I assisted THOMLINSON to his feet and walked him across the road from the Shore Club." [222] 1. In her notebook entry of 28 December 2011, Constable O'Donnell recorded: "L/S/C Church and S/C Renshaw took hold of the male and took him down the stairs. I followed shortly after. As I got to the bottom of the stairs, I looked to the entrance and observe the male faced down with Church and Renshaw holding the males arms behind his back. I walked up and handcuffed the male. Church and Renshaw then picked up the male and walked him out of the hotel and across the road." [223] 1. In the second penalty notice of 9 January 2012, Constable O'Donnell records: "L/S/C Church and S/C Renshaw escorted the POI down the stairs while he continued to resist. He was eventually handcuffed and taken out of the hotel." [224] 1. The statement of Constable O'Donnell 22 February 2012 records: "[16] Senior Constable Renshaw walked up from behind me, grabbed the male's right arm and started walking him down the stairs. Senior Constable Church grabbed the male by his left arm. Patrons continued to walk up the stairs walking in front of security and myself. A few seconds later I followed Senior Constable Church and Renshaw down the stairs. As I was walking down the stairs I notice a blue police cap on the landing. I picked this hat up before continuing down the stairs. As I got to the bottom of the stairs, I observed the male on the ground face down with Senior Constable Church holding his left arm behind the male back, and Senior Constable Renshaw holding the male right arm behind his back. They were just inside the entry the premises. [17] I walked to where they were Senior Constable Renshaw said 'have you got handcuffs?' I got my handcuffs out of my vest and handcuffed the male. Senior Constable Church and Renshaw helped the male to his feet and escorted him out of the hotel. I followed Senior Constable Church and Senior Constable Renshaw as the escorted the male across the road and sat the male on a wall. I got on the Police radio and requested a caged Police truck to our location. [18] I then observed Senior Constable Renshaw write the male's details in his official notebook. The male continually kept saying 'why have I been asked to leave?' [19] Constable Grime and Constable Doring arrived in Manly 15 which is a caged truck. Senior Constable Church and I walked across the road back to the shore club where I saw the security guard who had dealt with male. Senior Constable Church took the security details and he said 'do you have the name of the staff member that refused him service?' I then walked back over the where Senior Constable Renshaw was standing with male when I heard him say to Senior Constable Renshaw 'how do you know you weren't event there'. I said to the male 'Sir you have been told at least twenty (20) times why you have been asked to leave'. The male then said 'I want to speak to a senior officer, who is the senior officer here?' [20] Senior Constable Church walked up from behind me and started a conversation with the male. Church said something like: 'I am the senior officer here now how may I help you?' He said something like: 'why have I been asked to leave?' Church said: 'You were asked to leave because security believe that you are intoxicated.' [21] The security guard walked us and gave me the details on the staff member who had refused the male service. He said: 'But why was I asked to leave?' Church said: 'You have now been told a number of times why you were asked to leave.' He said: 'but why was I asked to leave?' Church said something like: 'Ok Sir, I am not going to continue to answer the same question over and over again. You were asked to leave by security, by Constable O'Donnell and then by me and you wouldn't. You were then removed from the premise by us. During that removal you struggle and elbowed me in the jaw. Due to you struggling Police placed you under arrest for a breach of the peace and failing to leave the licensed premise. I plan to issue you with a ticket. I will send it to you in the mail. How did you plan on getting home tonight?' He said: 'I have a wife and child at home. I plan on catching a bus home to them as soon as possible.' Church said something like: 'What I am going to do now is give you an official move along direction from the Manly CBD and licensed premises for the next six hours. Also to prevent a further breach of the peace, I am going to have you dropped at the Warringah Mall bus stop. It will be quicker and easier for you to get a bus home and will assist you in not committing any further offences.' He said: 'Ok, I just want to go home to my wife and child. Can I have your name first?' Church said: 'My name is Senior Constable Church from Manly Police' (emphasis in the original). [225] 1. In his notebook entry of 3 December 2011, SC Renshaw recorded:- "POI refused the requests was then escorted out by the police when the POI resisted LSC Church and CST RENSHAW. POI has then elbowed LSC CHURCH to the head. POI was then taken to the ground just inside the entry of the Shore Club. He was then handcuffed to the rear before being escorted outside. He continued to ask why he had to leave and was informed on approximately 20 occasions it was due to him being intoxicated." [226] 1. The statement of SC Renshaw of 10 May 2012 records:- "[18] I have then taken hold of the Accused by placing my left hand on his right shoulder and my right hand on his right arm. Leading Senior Constable CHURCH has taken hold of the Accused by placing his hand around the Accused's left arm. Leading Senior Constable CHURCH and I have proceeded to walk the Accused down the stairs from the first level of the premises. Towards the base of the stairs the Accused has started to resist and attempted to break free of police that were holding him by twisting his body. The Accused has continued to twist his body and has broken free of Leading Senior Constable CHURCH's hold this has resulted in the Accused's left elbow hitting Leading Senior Constable CHURCH in the right side of his jaw. [19] I Said – 'Stop resisting'. [20] The accused has continued to attempt to break free from police by trying to pull away and thrash his body from side to side. Due to the Accused resisting and pulling away from police the Accused was then taken to the ground inside of the entry to the premises. I have then placed my knees over the Accused's back I have then grabbed the Accused's right arm and placed it behind his back. Leading Senior Constable CHURCH was to the left side of the Accused and has grabbed the Accused's left arm behind his back.' [21] I Said – 'Amy can you Cuff him.' [22] Constable O'DONNELL has then placed her handcuffs around the Accused's wrists. Leading Senior Constable CHURCH and I have lifted the Accused off the ground and walked him outside the premises and across South Steyne. The Accused has then sat down on a wall across the road from The Shore Club." Plaintiff escorted out of the Shore Club 1. As noted, the Plaintiff gave evidence in his statement to police of stating very loudly to the policeman in the blue hat "You're a fucking asshole, why did you do that to me I think you've broken my back. [227] 2. The Plaintiff also gave oral evidence that as he was taken out of the Shore Club he looked over his shoulder and said to the officer who did this to him "You're a fucking asshole. Why did you do that?" [228] (or words to that effect) and also "I think you've broken my back." [229] 3. These words were not mentioned in the Plaintiff's earlier statement of serious police misconduct dated 13 December 2011. [230] Nevertheless, the Plaintiff did assert that he verbally abused the officer that hurt him and repeatedly asked why him he kneed him in the back. [231] 4. The Plaintiff's evidence was that when he got across the road, he sat on the wall was which "opposite and diagonally slightly off to the right" of the Shore Club. [232] 5. The Plaintiff stated he asked police:- "What's going on? Why have you done this to me? I've done nothing wrong." [233] 1. He stated that he had asked them to take the handcuffs off as they were hurting him. [234] He further stated that police had hurt his back and that he needed to go to the hospital. [235] The Plaintiff's evidence was that he asked to speak to the senior police officer and who approached him and asked if he was "okay." The Plaintiff replied "no." [236] 2. The Plaintiff's evidence as to the conversation that he had with this police officer was as follows:- "Q. "I said", what? A. I said, "No, I'm not okay". He asked me if I was hurt and I said, "Yes". He asked me where the pain was and I told him in my back and he asked me if I needed to go - needed to go to hospital and I said, "Yes". I also asked him that I wanted to report the officer that did this to me-- Q. Try and do it in the first person. "I said to him". A. Okay. "I want" - "I would like to report the officer that did this to me for assault". He replied, "You're quite within your rights to do that, sir" and I said, "I'd like his name, rank and number". The officer then disappeared for a few minutes and several minutes later an officer came back and showed me what looked like a badge but it may have been written on some paper the name "Grime". At the time I assumed that that was the officer that - that - that had injured me. HIS HONOUR Q. So he showed you a badge did he? A. I can't be a hundred per cent, your Honour, if it was a badge but it was a - something in his hand that it could have been a piece of paper, so big, but it clearly said in capital letters "Grime". TEMBY Q. Having been shown that name what did you say? A. "Thank you, sir". Q. Anything else? A. "I'm reporting him for assault". Q. Did any further conversation ensue? A. Repeatedly I asked to have the handcuffs taken off me and - and told me that I was in severe pain. Q. Where were you throughout this time? A. Sorry. I - I also asked if I was being arrested and I was told, "No" and the whole time I was sitting on the wall outside." [237] 1. In his report of serious police misconduct [238] and police statement, [239] the Plaintiff gave a similar account. 2. In her notebook record of a conversation with the Plaintiff on 28 December 2011, Constable O'Donnell records a conversation with the Plaintiff as follows:- "He said 'Well I have mad a complaint to the Police Integrety Commission and Ombudsman. Who were the officers on that night.' I said S/C Church, S/C Renshaw and myself. He said 'You were there that night?' I said 'Yes I was.' He said 'who was the big guy that stood on my back?' I said 'there was SC Church SC Renshaw and myself there' he said 'and Grime'. I said 'CST Grime gave you a lift.'" [240] 1. The Plaintiff rejected a suggestion in cross-examination that no police officer came over and showed him a badge with "PC Grime" on it. [241] 2. The Plaintiff further denied continually asking police about why he was requested to leave. [242] 3. In his statement, LSC Church records:- "[19] … THOMLINSON was then seated on a wall area where he was searched by Senior Constable RENSHAW. [20] At this point in time I returned to the Shore Club and had a conversation with the security guard and obtained his details. I now know him to be Mahmoud ALMIR. [21] I then walked back across the road and spoke with Senior Constable RENSHAW. Senior Constable RENSHAW informed me that he obtained THOMLINSON details in his notebook. [22] At this time I heard Constable O'DONNELL say to THOMLINSON, 'Sir, you have been told at least twenty times now why you were asked to leave and why you are now under arrest for breach of the peace'. [23] I then walk towards THOMLINSON and heard him say, 'I want to talk to the senior person here'. I said, 'The senior person here or the senior person on shift tonight?' THOMLINSON replied, 'The senior person here. I've been told it's you.' I said, 'Yes it is me. How can I help you?' THOMLINSON asked, 'Why was I asked to leave?' I said, 'You were asked to leave because security believed that you are intoxicated'. THOMLINSON again said, 'But why was I asked to leave?' I said, 'You have now been told a number of times why you were asked to leave'. [24] THOMLINSON cut over the top of me and said, 'But why was I asked to leave?' I said words to the effect of, 'Ok Sir, I am not going to continue to answer the same question over and over again. You were asked to leave by security, by Constable O'DONNELL and then by me and you wouldn't. You were then removed from the premise by us. During that removal you struggled and elbowed me in the jaw. Due to you struggling Police placed you under arrest for a breach of the peace and removed you from the location. What I plan to do is give you a ticket for failing to leave the licensed premise after being asked to. I will send this ticket in the mail. How did you plan on getting home tonight?' THOMLINSON said, 'I have a wife and child at home. I plan on catching a bus home to them as soon as possible'. I said, 'What I am going to do now is give you an official move along direction from the Manly CBD and licensed premises for the next six hours. Also to prevent a further breach of the peace, I am going to have you dropped at the Warringah Mall bus stop. It will quicker and easier for you to get a bus home and will assist you in not committing any further offences'. THOMLINSON said, 'Ok, I just want to go home to my wife and child. Can I have your name first?' I said, 'I am Leading Senior Constable Iain CHURCH from Manly Police.'" [243] 1. Constable O'Donnell [244] and SC Renshaw [245] gave similar accounts. Search 1. The Plaintiff's evidence was that one of the officers searched him. He had a wallet, a phone, some business cards, and his belt which were collected from him when he was sitting on the wall. He stated that whilst on the wall, he asked if he was being arrested and was told "no." [246] At no stage, according to his evidence, were the words uttered to the effect that he was placed under arrest and for what cause. [247] 2. The evidence of SC Renshaw was that LSC Church told him to collect the Plaintiff's details whilst he went to speak to security. [248] At that stage, SC Renshaw informed the Plaintiff "I am going to search you as you are in police custody." SC Renshaw asserts that the Plaintiff asked: "Why?" and he was advised:- "Because you are too intoxicated and were asked to leave The Shore Club a number of times by security and police and failed to do so. You have then hit my partner in the jaw whilst you were being walked out of the venue, which resulted in you being handcuffed." [249] 1. A further conversation is alleged to have taken place, in which the Plaintiff asks why he was removed, and SC Renshaw asserted that he responded saying that he was intoxicated. [250] SC Renshaw then asserted that he searched the Plaintiff whilst he was handcuffed, and located his wallet in his rear jean pocket, together with a driver's licence in the wallet and recorded these details in his official police notebook. 2. In this context, the Plaintiff denied that he stated just after being searched by SC Renshaw:- "You weren't even there, I want to speak to someone that was there." [251] Constable O'Donnell's version had the Plaintiff stating to Constable Renshaw: "[H]ow do you know you weren't event there?" [252] Arrival of Constables Grime and Doring and transporting the Plaintiff away from the Shore Club 1. The Plaintiff's evidence was that a police van arrived at the scene and he was escorted from the position that he had been sitting in for approximately 15 – 20 minutes. [253] He stated that his hands were still handcuffed behind his back. As the door of the police van opened, he was positioned with his back against the door of the van and he asked the officers if they were taking him to hospital. He received no response and was put in the back of the van, backwards and onto his handcuffs. [254] When the vehicle stopped he stated that he was asked to get out however he was in a severe amount of pain at the time and could not move and asked police for assistance. He stated that the officer pulled him by the legs towards the exit of the van and basically pulled him leg first out of the van. 2. The Plaintiff's evidence was that he was driven for approximately 15 minutes and then the van stopped before the back door was opened. An officer asked him to get out and the Plaintiff stated that he could not. [255] He asked for assistance because he was on his back with his hands still cuffed behind his back. He was also in a severe amount of pain at the time and could not move. [256] He stated that he did not recall the police saying anything to him, however the officer pulled him by his legs towards the exit of the van. He still had handcuffs behind his back. He asked the officer to take the handcuffs off, which he did and then realised he was not at a hospital or a police station. [257] His evidence was that he could not recognise where he was at the time. [258] He recalled seeing a taxi approach and he hailed the taxi to stop. The Plaintiff claimed that as he walked towards the taxi, the officer who had earlier pulled him out of the van, threw his belongings onto the bench. The items in question were the wallet, phone, belt and card. [259] The Plaintiff's evidence was that he collected his possessions and stated: "I thought you were taking me to hospital." [260] The police response was "You'll find your own way home." [261] The taxi voucher for the homeward bound journey was tendered. [262] It reveals that it was receipted at 00:53. [263] The Plaintiff's evidence was that he did not know the area where he stopped, but it was reasonably busy for that time in the morning. [264] 3. In cross-examination, the Plaintiff denied that he told LSC Church that he was planning to catch the bus home and further that he was told by LSC Church that he was to be dropped off at the Warringah Mall bus stop. [265] He further denied that he was given an official move along direction from Manly CBD. [266] 4. LSC Church's evidence was:- "[25] Constable Grime and Constable DORING had arrived at the scene. I introduced them to THOMLINSON and assisted in walking THOMLINSON to the rear of the caged truck. I then had a brief conversation with Constable GRIME about the incident. I asked Constable GRIME to drop THOMLINSON at a bus stop out of the Manly area and stated that Warringah Mall would probably be the easiest. I asked Constable GRIME to drop THOMLINSON at a bus stop as THOMLINSON had informed me that he was planning on catching bus home." [267] 1. SC Renshaw's statement asserts that the caged van attended the location and he spoke to Constables Doring and Grime in relation to the Plaintiff. Subsequently there was a conversation between Constable O'Donnell and LSC Church, at which point, the Plaintiff was placed in the rear of the caged vehicle. SC Renshaw gives no account of the Plaintiff being further searched by Constable Grime. 2. Constable O'Donnell stated that after conversation between the Plaintiff, and LSC Church, Constables Grime and Doring walked the male to the police vehicle where he was searched and placed in the back of the vehicle. [268] 3. In his statement, Constable Grime confirmed attending the scene and following a radio request at about 12.15am. He asserts that when he arrived he observed the Plaintiff sitting on the wall with LSC Church, SC Renshaw and Constable O'Donnell nearby. At that point he observed:- "The male appeared moderately affected by alcohol as he had glassy eyes, was very animated and he was getting verbally aggressive towards LSC CHURCH." [269] 1. Constable Grime states that he witnessed conversations between the Plaintiff, LSC Church, SC Renshaw and Constable O'Donnell. In those conversations the Plaintiff is said to have continually questioned why he was asked to leave. 2. Constable Grime's statement was that LSC Church informed him as to what had happened, at which stage, Constable Grime asked him: "Yeah okay, has he been searched?" [270] LSC Church is said to have responded: "Yeah." This was prior to LSC Church walking off to have a conversation with security at the Shore Club on the other side of the road. Thereafter, LSC Church is said to have walked off to have a conversation with security and Constable Grime is said to have conducted a search. He asserted that the Plaintiff continued to ask why he was asked to leave, and was told that he was intoxicated. He stated:- "[10] This conversation only strengthened my opinion that the male was intoxicated as he continued to ask the same questions, despite being given the same answer …" [271] 1. Constable Grime is then said to have searched the Plaintiff (who was now being search for a second time) removing his belt and taking custody of the wallet and its contents from LSC Renshaw. He asserts that the Plaintiff continued to ask questions as to why he was asked to leave, and the same response was repeated – that it was due to his intoxication levels. He then stated:- "[14] The male was in an agitated state by this point and continued to argue with me, the specifics of these arguments I cannot recall however it was along the lines of the previous conversation I had with the male. At no time did the male complain to me or any other Police in my presence of any injuries or pain, nor did he request treatment of any kind." [272] 1. He asserted that LSC Church arrived back ten minutes later and had a conversation with the Plaintiff about his behaviour. During this conversation, he asked the Plaintiff how he was to get home. In reply, the Plaintiff stated that he wanted to catch a bus. [273] Constable Doring is then said to have asked whether he was finished with the Plaintiff and wished for him to be taken. [274] LSC Church is said to have responded affirmatively, saying that he told the Plaintiff that he was to be dropped off at Warringah Mall so that he could catch a bus. [275] 2. At that point, the Constable Grime and Doring placed the Plaintiff in the back of the caged vehicle whilst he remained handcuffed. Constable Grime stated that this was done on the basis of his aggressive demeanour and due to the fact that he had previously elbowed LSC Church. 3. During the journey, Constable Grime stated that he had a conversation with Constable Doring and a decision was made that the Plaintiff could be released at a bus stop, after Oliver Street on the southern kerb of Pittwater Road. He said that this was done bearing in mind the welfare of the Plaintiff, as he did not want him to be "in custody for any time longer than reasonably necessary to remove him from the area to prevent a breach of the peace." [276] Thereafter, the caged door was opened and Constable Grime claims that he assisted the Plaintiff to get out of the truck. When released from the vehicle, the Plaintiff continued to ask why he was "kicked out" and he was told that it was due to his intoxication level. It is asserted that the Plaintiff said: "They didn't tell me that." [277] The Plaintiff was told that he was out of Manly and that he could catch a bus home "as you said you wanted to do." [278] The handcuffs were subsequently removed, at which stage it is asserted that the Plaintiff stated: "This is bullshit, they can't do that. They didn't tell me why the [sic] wanted me to leave." [279] Constable Grime is said to have responded:- "I and other Police have already explained it to you. I'm just letting you know that my name is Constable GRIME from Manly Police Station. I am giving you a direction not to enter the Manly CBD, which includes the Corso and the licensed premises on the Corso for the next six hours due to your harassing and intimidating behaviour. Do you understand?" [280] The Plaintiff is said to have responded:- "I don't want to go back; I just want to get home to my wife and kids." [281] 1. Constable Grime stated that the Plaintiff was then seen to jog over Pittwater Road and he did not seem to be having any difficulty running or performing normal movements. [282] 2. Constable Grime conceded that in making his statement on 22 February 2012, he refreshed his memory from his "official Police notebook F516212 at page 12, and the COPS event relating to the incident E48552289." [283] In fact, the COPS event shows little information relating to Constable Grime's involvement. The only entries being:- "The accused was then walked to the rear of the caged truck and was transported to Warringah Mall by Constable GRIME." [284] And a reference to:- "ML 15 – GRIME/DORING." [285] 1. Constable Grime's notebook entry discloses no information relevant to the Plaintiff beyond the general operation on the night and in particular, does not record the move on direction. 2. A transcript of the VKG disc in relation the use of a vehicle to transport the Plaintiff was tendered in evidence. It records:- "12.10 am ML400 … Request for caged vehicle to the Shore Club, South Steyne, Manly. 12.11am ML15 ….. Request acknowledged by ML15 12.12am ML15 ….. Off at the Shore Club. 12.28 am ML15 ….. Back on from the Shore Club, 1 male on board and going to drop him home." [286] 1. The reference to dropping the Plaintiff at home is also recorded in the Incident Log 936799 – 03122011 which records on 3 December 2011 at 00:28:20: "ML15 – Police [Radio] Message 1 OB DROPPING HIM HOME." [287] In fact, the log shows that the total travel time was approximately 10 minutes, as the incident status was changed at 00:38:05. This was contrary to the assertion made in the Amended Statement of Claim. [288] 1. No evidence has been provided from Constable Doring. 2. When entering the van the Plaintiff described sitting on his buttocks whilst handcuffed, having his legs lifted and being thrown backwards into the back of the van finishing up on his back. [289] The Plaintiff described that during his journey he was in a lot of pain. When exiting he stated that an officer pulled his legs towards the exit and pulled him leg first out of the van. [290] He stated that he was in severe amount of pain. [291] After he was removed the Plaintiff took his possessions back and caught a taxi home. [292] The receipt was tendered and notes a payment time at 00:53 [293] Arrival at home 1. When the Plaintiff got home, his evidence was that he was in considerable pain and took some Panadeine Forte. [294] He stated that the pain was in his lower back "just to the left … about halfway up [his] back from the base of [his] spine to about the middle." [295] Afterwards, he went to bed. [296] The following day, he stated that the pain was worse and he informed his wife about what had happened. [297] He stated that he rested at home and then sent a message to a friend who was a solicitor and stated that he "need[ed] some advice." [298] On the early hours of Sunday morning, his wife took him to Mona Vale Hospital. [299] Mona Vale Hospital 1. The Plaintiff stated that after he returned home, he did not attend Mona Vale Hospital until the following day on 4 December 2011. His evidence was that Mona Vale Hospital was located north of his home. [300] He stated that he did not provide the hospital with a full account of what had occurred because he was scared and frightened. [301] He stated that he was scared of the police. [302] He stated that he contacted a friend for legal advice, but he did not respond until the following Monday (5 December 2011), who ultimately referred him to his present solicitor. [303] It was put to him in cross-examination that he did not mention the police to staff at the hospital because he did not know that the police had taken him down the stairs. He rejected this. [304] He stated that he first saw the CCTV footage [305] at around 5 December 2011. [306] He denied that this was the first occasion he was aware that the police had taken him down the stairs. [307] He conceded that he prepared his own investigation including preparing a questionnaire which he took to staff, asking them what had happened on the night and morning in question. [308] He conceded that nowhere in that questionnaire was a request for a witness to identify whether they were the person who had said "No need to do that!" [309] He denied that this was because those words were not said. [310] He conceded that when he went to Mona Vale Hospital on 4 December 2011, he was examined but he could not see any bruising. [311] 2. When he returned to Mona Vale Hospital on 7 December 2011 for follow up, he admitted that he had seen video footage of the Shore Club which had been shown to him by Mr Michael Raftopoulos, the licensee of the Shore Hotel. [312] 3. A record was obtained following a further presentation on 9 December 2011 by Dr Silberstein about the Plaintiff being forcibly thrown to the ground and being handcuffed. [313] Refusal of service 1. Mr Sam Delamont was the bar supervisor on the evening in question and provided a statement to police on 1 February 2012. In that statement he indicated that whilst he could recall the incident in December 2011 when a person refused to leave the premises, he could not say for sure whether he in fact refused the patron service and cannot recall whether he had in fact refused any person service on that night. [314] 2. The only evidence from a "glassy" was from Mr Biju Maharjan, who provided a statement to police on 14 February 2012. His statement was that he did not recall an incident happening on 2 December 2011. He stated that it was a "long time ago" and when it was "really busy" he focuses on what he had to do at the time. He stated that he could not recall having told the security guard directly that he thought that someone was intoxicated. [315] 3. LSC Church records that subsequent to the Plaintiff being seated on the wall he returned to the Shore Club and had a conversation with the security guard and obtained his details. He stated that he knows him as Mr Mahmoud Almir. [316] 4. Constable O'Donnell stated that after Manly 15 arrived, she and LSC Church walked across the road back to the Shore Club where she saw the security guard who had dealt with the Plaintiff. She stated LSC Church took his details and he said "do you have the name of the staff member who that refused him service?" No reply is recorded. [317] 5. On 3 December 2011, LSC Church's notebook has an entry said to be at 00:10 am which recorded:- "Security asked male to leave after bar staff had identified him as being intoxicated." [318] 1. The only name of the staff in question was recorded in LSC Church's note book as Mr Almir. [319] He of course was not the bar staff member and had not refused the Plaintiff service. 2. In the substituted police copy of the penalty notice of 9 January 2011 that Constable O'Donnell issued, she recorded:- "… the POI was refused service from the bar at the Shore Club Hotel …" [320] Visit to Shore Club to view CCTV footage 1. Shortly after the incident, the Plaintiff contacted the licensee of the Shore Hotel, Mr Michael Raftopoulos. 2. In a statement to police dated 27 February 2012, Mr Raftopoulos gives evidence that the Plaintiff accused him and his security staff of kicking him out of the club for no reason and that the security guards had injured his back, and he was seriously considering taking action and suing the club. Mr Raftopoulos stated that he did his best to calm him down and listen. He then requested times and dates when this alleged incident occurred, and invited him to have a look at the camera footage. Mr Raftopoulos stated that he wrote this information on a piece of paper but was not sure if he kept it. [321] 3. Mr Raftopoulos then stated that, possibly on the day after the phone call (he could not be sure) the Plaintiff came in and looked at the footage and saw that it was not security that had gotten on top of him. Mr Raftopoulos informed the Plaintiff that he would rather not provide a statement and stated that he was welcome to ask staff if they felt comfortable in providing a statement, however if they refused, it would be unfair if they were pushed. The Plaintiff asked for and was provided with the names of staff who could be seen on the footage, and was also provided with a copy of the footage. 4. When questioned by police, Mr Raftopoulos did not dispute that the Plaintiff first contacted him by telephone on 4 December 2011 and spoke to him about obtaining the footage on 5 December 2011. Nor did he dispute that the footage was provided on 7 December 2011. He also volunteered the following comment to police when giving his statement:- "Well just because of a comment that one of the security officers made to me whilst we were watching the footage, he (THOMLINSON) was claiming that he wasn't intoxicated and was kicked out by security for no reason, if that was the case, how could he mistake blue uniforms for bright yellow vest had he not been affected by alcohol in anyway and continue with the same perception of the event when he phoned me. I remember him (THOMLINSON) being surprised when he saw the footage and saw that it was the police involved and not security. He seemed surprised that security didn't even touch him." [322] 1. The Plaintiff's evidence was at variance to Mr Raftopoulos' evidence. The transcript recorded:- "Q. In the week following the incident you rang Michael Raftopoulos, didn't you? A. Yes, I did. Q. You were a bit angry on the phone about what had happened. Correct? A. Not with Mr Raftopoulos, no. Q. You said to Mr Raftopoulos, didn't you, "You and your security kicked me out of your club for no reason and your security have injured my back and I'm seriously considering taking action and suing your club"? A. Absolutely not. Q. That's what you said to Mr Raftopoulos, didn't you? A. No. Q. You had no idea who had taken you down the stairs, did you? A. I had every idea who had taken me down the stairs. Q. That's why you won't accept any of the conversations that have been put to you about what transpired between you and the security officers, firstly. You accept that, don't you? A. I accept that I was asked to wait and that's all - the only instructions I was given. Q. The reason you don't recall the police officers asking you to leave is because you didn't recall that they had taken you down the stairs. Isn't that right? A. No. Q. After you told that to Mr Raftopoulos on the phone he invited you to come in and look at the camera footage, didn't he? TEMBY: With respect, that can't be a fair question because the witness has not agreed that he had any such conversation with Raftopoulos. SPARTALIS: Fair enough, I'll withdraw it. Q. Can I suggest to you that Mr Raftopoulos invited you to come and see the footage? Do you accept that? A. Yes. Q. A number of days later you went and saw Mr Raftopoulos, didn't you? A. Yes. Q. He invited you to look at the footage? A. Yes. Q. You saw the footage, didn't you? A. I saw some footage. Q. And you asked Mr Raftopoulos if he would give you a statement, didn't you? A. Yes. Q. When you went in and looked at the footage with him, you went through the footage together, didn't you? A. We went through the assault at the bottom of the stairs. That's all I saw and I asked Mr Raftopoulos if I could have a copy of that CCTV footage. Q. Your evidence in relation to what happened with the security and the police is created by the CCTV footage rather than your memory, isn't that right? A. No absolutely not. Q. You had no idea, even a couple of days later, that it was the police who took you down the stairs, correct? A. Absolutely no." [323] 1. In his statement to police the Plaintiff described his interaction with Mr Raftopoulos as follows:- "[26] On Saturday 3 December 2011 I called The Shore Club Hotel and left a message for the Licensee Michael RAFT to contact me. On Sunday 4 December 2011, I received a phone call from Mr RAFT in relation to CCTV footage of the incident. I said 'I was involved in an incident on Friday 2nd December which involved the Police whereby I was assaulted. Do you have copies of the CCTV footage?' He said, 'Yes we do but I will have to check that it's ok first' I told Mr RAFT what happened to me. Mr RAFT said, 'Oh yeh right I know I was there'. Mr RAFT told me he would get back to me with regards to whether I was able to gain a copy of the footage. [27] On Monday 5 December 2011, I contacted Michael RAFT at The Shore Club Hotel with regards to the footage. Mr RAFT told me that gaining a copy of the footage would be no problem but he had not had a chance to copy it yet. I called and spoke with Mr RAFT on two further occasions after this date. …….. [29] On the evening of Wednesday 7 December 2011, I collected the CCTV footage of the incident from Mr RAFT at The Shore Club Hotel." [324] 1. The Plaintiff did not make his complaint as to serious police misconduct until 13 December 2011. [325] 2. On 28 December 2011, Constable O'Donnell made a COPS entry where she added:- "When speaking with the licensee of the Shore Club Hotel, Licensing police were informed that the POI had attended the Shore Club hotel after the incident where he accused the hotel security guards of breaking his back on the night of the incident. The hotel have shown the POI footage of the incident and told the POI it was the police that escorted the POI out of the POI. At this stage the Police are unsure what date the POI attended the Hotel but will clarify with the licensee at a further date." [326] CLAIMS IN TRESPASS 1. The Plaintiff has brought proceedings alleging four instances of assault more accurately referred to in his statement of issues as battery. The Plaintiff has also brought a claim for false imprisonment. For reasons that will become apparent it is first necessary to determine the context in which these events occurred. What were the circumstances in which security approached the Plaintiff? 1. I do not accept that at the time the Plaintiff was approached by security guards on Level 1 that it was his intention to leave the Shore Club. Despite the fact that in Exhibit H the Plaintiff is seen to return a partly consumed glass of beer to the bar area, neither the Plaintiff's report of serious misconduct [327] nor his statements to police [328] record this intention. To the contrary the Plaintiff records that on Level 2 (not Level 1) he bought some drinks for his group of friends placed them on his table, consumed his drink and then told his friends "I'm going for a dance whose [sic] coming." Mr Latham is said to have replied to him "Yeh go on Charlie were will see you in a sec". It was at that point that he walked down the stairs to the first level where the dance floor was located. [329] 2. Neither Mr Latham's nor Mr Aimer's evidence indicate that the Plaintiff had signalled an intention to leave, but rather, they had assumed that he did so at some point during the evening. Nor does the Plaintiff indicate that he told anyone including staff or police that he intended to leave. 3. Although the Plaintiff was unable to identify Mr Cheikho by name, [330] I am satisfied that he was the first security officer that he referred to in his evidence. I am further satisfied that the second security officer who interacted with the Plaintiff that day was Mr Almir. [331] 4. The Defendant in submissions drew attention to the contents of Exhibit H2.1 revealing that at 00:09:40:27, the Plaintiff stumbled backwards into some other people and continues to dance without acknowledging anyone until around 00:10:29:58 when he can be seen moving with a security guard near the dance floor to the back of the staircase. The Defendant contended that from around 00:10:36:94 until 00:11:20:55, the Plaintiff is having a conversation with a security guard most probably Mr Cheikho and at 00:12:28:66 a second security guard believed to be Mr Almir appears. It was submitted that all of this is much more consistent with what the security guards record in their statements. [332] 5. This was followed up in oral submissions with the Defendant pointing out a male person who is holding the glasses on the dance floor looking at the Plaintiff at 00:09:42:35 – 00:09:42:50 after the Plaintiff stumbled backwards at 00:09:39:00. [333] At 00:10:26:68 the security guard is seen motioning with his arm [334] and at 00:10:30:38 the Plaintiff is seen standing with the security guard. [335] At 00;10:34:22 the Plaintiff moves with the security guard nearer to the stairwell [336] and at 00:12:34:26 the second security guard approaches the Plaintiff and places his hand on his back as a and a struggle begins [337] which is also shown at 00:12:49:60 as the Plaintiff is moved towards the stairs by security. [338] 6. On this recording the Plaintiff's assertion of being told to move to point 2 on the Exhibit is not accounted for. [339] During submissions I asked the Counsel for the Plaintiff as to why the Plaintiff would have been asked to wait at a location adjacent to the stairs. [340] No explanation was forthcoming. [341] 7. Beyond this the Plaintiff says that he did not leave the Club as there were too many people coming up the stairs. However Camera 6 on Exhibit H2.1 reveals around this time, there were in fact not a lot of people using the stairway. Mr Chieko's movement at the time away from the staircase where he was recording patron numbers to a position on the left of the dance floor to speak with the Plaintiff is consistent with Exhibit H 2.1. It is moving the Plaintiff momentarily when he felt the circumstances at the time allowed him to do so. The Plaintiff may have been checking his mobile phone at the time, however I accept that he was informed about a suggestion that he was intoxicated and took exception to it, leading to an argument in which he was asked to leave for being rude. The suggestion that Mr Almir arrived and told him to wait without any reason at a time that he intended to depart is implausible. I do not accept the Plaintiff's evidence in this regard. 8. I accept that Mr Cheikho told Mr Almir to escort the Plaintiff out and Mr Almir wrongly understood the reason as due to intoxication. I am satisfied that the Plaintiff contested being drunk and was told to come to a quiet location so a decision could be made. Whilst Mr Almir states that the Plaintiff was failing to communicate or follow simple directions and for that reason had to be removed, he later stated that he was "just trying to move him to an area away from the stairs where we could talk and [sort] the issue out." Bearing in mind the evidence of the noise and the fact that the Plaintiff was near the stairs I am satisfied that the location where he intended to "talk and sort out the issue" was not on Level 1 but rather on the ground level. Arrest and first assault 1. In his Further Amended Statement of Claim, the Plaintiff alleges that the arrest was unlawful for the following reasons:- "[10] In the premises, the plaintiff was unlawfully arrested by Church and Renshaw. Particulars i. At all relevant times, Church and Renshaw knew that they could affect [sic] an arrest without warrant, pursuant to s.99 of the LEPRA if they suspected on reasonable grounds that the person arrested had or was in the act of committing an offence, and if the provisions of s.99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) were satisfied. ii. The plaintiff was not in the act of committing any offence nor had he committed any offence (ss. 99(1)(a), 99(1)(b) & 99(3)(b) LEPRA). iii. There were insufficient grounds at the relevant time for Church and Renshaw to suspect that the plaintiff had committed any offence (s.99(2) LEPRA). iv. There was no basis for believing that the plaintiff would not reveal his identity to police (s.99(3)(a) LEPRA). v. The plaintiff's safety or welfare was not put at risk by his own actions (s.99(3)(f) LEPRA). [11] In the alternative to paragraph 10 above, the plaintiff's arrest was unlawful as neither Church or Renshaw had any intention at the time of arrest of charging the plaintiff with any offence. [12] Further or in the alternative to paragraph 10 above, the plaintiff's actions were not in breach of the peace. [13] At no time did Church or Renshaw explain to the plaintiff the reason why he was being arrested. [14] There was no impediment to Church or Renshaw stating the reason why the plaintiff was being arrested at the time of the action. [15] By not stating the reason why the plaintiff was arrested Church or Renshaw were in breach of s.201(1)(c) of LEPRA. [16] In the premises, Church and Renshaw were not acting within the lawful execution of their duties. [17] Further or in the alternative, by committing the First Assault on the Plaintiff, Church and Renshaw were not acting in the lawful execution of their duties." [342] 1. In the Plaintiff's Schedule of Issues, the assault was more correctly described as a battery. [343] 2. The Defendant for its part alleged that the assault and arrest was lawful for four reasons. Revocation of implied licence to remain on premises 1. First, the Defendant argues that the Plaintiff's license to remain at the Shore Club had been revoked by the security guards and SC Renshaw and LSC Church were assisting a representative of the occupier to remove the Plaintiff after the Plaintiff's license to remain had been revoked. [344] In support of this argument the Defendant cited R v Roxburgh [345] , Cowell v Rosehill Racecourse Company Limited [346] and Naylor v Canterbury Park Racecourse Company Limited. [347] 2. The Defendant in submissions does not identify any evidence in support such an argument. [348] Mr Cheikho asked Mr Almir to escort the Plaintiff out but Mr Almir misunderstood it was because bar staff had identified him as being intoxicated. Mr Almir's evidence was that he was trying to move the Plaintiff to a quiet place to sort the issue out in light of the Plaintiff contesting this. In response to Mr Raftopoulos' request for information he asserts Mr Almir " … kind of shrugged and said police wanted him out (emphasis supplied)." [349] 3. Even if it is accepted that the security guards removed the license of the Plaintiff to remain on the premises, I do not accept that they requested police assistance to give effect to such a desire nor do I accept that the police acted on such a request. 4. Mr Cheikho asserted that the Plaintiff stated "I want to talk to the supervisor" as he pointed to the police whereupon Mr Cheikho asserted that he spoke to the bigger police officer and said: "He's got to go as he is being blatantly rude. We have people coming up and down with only one access. We can't block the stairs." However Exhibit H shows that Mr Cheikho was walking away from the Plaintiff and Mr Almir to their left as the police approached from their right. It does not support conversation between Mr Cheikho and police. LSC Church stated that he watched the conversation between the Plaintiff and the first security guard but was unable to understand what was being said. [350] 5. The only security person who could have conversed with police was Mr Almir. However he gave no account of any conversation with police and his evidence was that he sought to move the Plaintiff as I have described. His evidence did not state that he had determined the Plaintiff to be intoxicated. Nowhere in his asserted response is it suggested there was a request for assistance, rather as noted earlier, he stated that "police wanted him out." This is consistent with the fact (as will be shown below) that LSC Church and SC Renshaw were asserting the use of their statutory power. s 77(5) of the Liquor Act 2007 (NSW) 1. Secondly, the Defendant alleges that LSC Church and SC Renshaw were authorised to remove the Plaintiff under s 77(5) of the Liquor Act 2007 (NSW). In support of this contention the Defendant draws attention to what police were told and their own observations. The Defendant submitted:- "[106] Comparing the plaintiffs [sic] evidence with the evidence in Ex F and H1 reveals a large body of evidence, that weighs heavily in favour of the following findings: a. The plaintiff was observed by the police being spoken to by bar staff; b. The plaintiff would not leave when asked by security; c. The police were told by the security staff that the plaintiff was intoxicated; d. The police were told by the security staff that the plaintiff would not leave; e. The police observed signs of intoxication: red eyes, slurring and swaying f. The police observed quarrelsome behaviour: the plaintiff not leaving when asked, he was argumentative and resisting police in the execution of their duty; g. Renshaw formed the view that the plaintiff was quarrelsome; h. The plaintiff was intoxicated, disorderly (swaying and slurring) and quarrelsome; i. The plaintiff had been asked to leave and he had refused. j. The police were entitled to remove the plaintiff from the Shore Club." [351] 1. The Plaintiff relied on his denial of being intoxicated, the failure of the security guards to assess him as being intoxicated and further, the evidence of Honora Campbell who stated that she did not believe the Plaintiff was drunk [352] or in her opinion, intoxicated. [353] The Plaintiff submitted that in the circumstances, he could not be found to have been intoxicated and therefore the actions of the police were not justified. 2. The identity of any person who may have refused the Plaintiff service has not been revealed. Nor is the source of any information to this effect identified by Constable O'Donnell. There is the notation in LSC Church's notebook recording Mr Almir's name but there is no suggestion he refused service There is no evidence in Exhibit H that the Plaintiff was refused service and I am satisfied that the Plaintiff was not refused service. [354] 3. The precise location where LSC Church asserts an interaction between Mr Mahmoud and the Plaintiff was not identified. However in the context of him making the observation suggests that he was asserting it was in the bar area. [355] The Plaintiff was questioned about speaking to someone at the bar however he identified the person as a female. [356] He had no recollection of speaking to the person collecting the glasses on the dance floor. [357] 4. There is no evidence of the identity of Mahmoud Mahmoud as a staff member nor how LSC Church came to identify him. He was not called nor was any statement provided even though LSC Church cited him in his statement. The conversation between the Plaintiff and Mr Cheikho, as described by Mr Cheikho does not support the staff member who he said approached him having previously spoken with the Plaintiff about his state of intoxication. 5. In submissions, Counsel for the Defendant contended that the person who spoke to Mr Cheikho was a glassy and the unsteadiness of the Plaintiff arose on the dance floor. [358] However as I have previously noted the person who is said to have spoken to Mr Cheikho was not identified or called and as will be discussed below I am satisfied that the sequence in Exhibit H showed that it was the Plaintiff who was in fact bumped on the dance floor. 6. In the circumstances I cannot be satisfied that a member of staff approached Mr Cheikho and expressed concerns in relation to the Plaintiff as he has asserted. Nor can I speculate as to what may have occurred. 7. Whatever the circumstances which led Mr Cheikho to approach the Plaintiff I am satisfied that a conversation ensued along the lines Mr Cheikho asserts. [359] 8. I accept that Mr Cheikho did not assess the Plaintiff as intoxicated and communicated his views to this effect to Mr Eliki Sagoa and Mr Chaz Tanner. Nevertheless he asserted that he had requested Mr Almir to assess the Plaintiff. 9. Mr Almir says that Mr Cheikho told him bar staff said that the Plaintiff was intoxicated and needed to be escorted out. [360] Mr Almir says that he then told the Plaintiff "You need to leave" to which he responded that "No I'm not drunk, I'm not leaving I'm not leaving" and subsequently "Fuck off". Mr Almir's requested the Plaintiff to position closer "to a quieter place" to speak to and assess him. [361] It is clear that they were near the stairs. Mr Almir described the Plaintiff as rude and ignorant and would not do as he asked. As to whether he was intoxicated, Mr Almir stated that he could not smell intoxicating liquor on his breath but his eyes were a bit red. [362] He stated he told his supervisor Mr Sagoa that "I didn't have the opportunity to assess him because he was rude and unresponsive." [363] 10. Mr Sagoa may well have recorded in the incident register what he believed Mr Almir had told him, however I am not satisfied it was based on Mr Almir's view as opposed to what he believed he was advised by Mr Cheikho, who in turn was allegedly advised by bar staff. I am reinforced in this view by Mr Raftopoulos' account of his conversation with Mr Almir which gives no account of any such assessment by Mr Almir. 11. Police attended the premises for the purposes of carrying out a business inspection. [364] The evidence was from Exhibit H that they came down to Level 1 at approximately at 00:08:08. 12. The entries In LSC Church's notebook correspond with what Mr Almir said he was advised by Mr Cheikho. It also corresponds to an extent with the notation in SC Renshaw's notebook referring to the Plaintiff being asked to leave "by security and bar staff." 13. However police at that time had not conversed with bar staff and the content of any statement given by Mr Almir was not confirmed and nor was the source of any information from bar staff identified. 14. The COPS entry of 6 December 2011 noted that in carrying out an inspection of the first level, "Police monitored to the bar area and the bar staff." [365] Constable O'Donnell's statement [366] supports this as does LSC Church's statement. [367] 15. Various police officers asserted making observations of the Plaintiff "swaying." LSC Church stated that he observed Plaintiff swaying "slightly from side to side" after conversing with Mr Mahmoud Mahmoud. SC Renshaw saw the Plaintiff "swaying from side to side at the southern end of the bar". These observations were not put to the Plaintiff nor identified on Exhibit H - indeed at the time of the police arrival on Level 1 of the Shore Club, the Plaintiff was on the dance floor. There are also no contemporaneous records of these observations 16. In evidence-in-chief, the Plaintiff maintained that he was completely coherent and not swaying from side to side. He said he was dancing in a coordinated fashion and had conversations with people. [368] It was put in cross-examination that the Plaintiff was swaying from on the dance floor and he bumped into someone. [369] The Plaintiff stated that someone bumped into him. Indeed the vision on Camera 16 at 00:09:39 of Exhibit H2.1 shows the Plaintiff apparently being pushed back rather than stumbling as a person appears to be coming across his path. [370] 17. Constable O'Donnell, who it is asserted was with LSC Church when they were making observations at the bar area, gave no evidence of observations of the Plaintiff being at that location. Her evidence was that LSC Church brought the Plaintiff to her attention when were at entry of Level 1 standing opposite the stairs leading to Level 2. This was around same location where Mr Cheikho was counting patrons and where moments before he states he showed one of the officers the counter indicating 165 patrons described as "pretty well at capacity." [371] 18. It follows that I reject the evidence of LSC Church making observations of the Plaintiff swaying from side to side after conversing with a Mr Mahmoud Mahmoud. 19. I further reject SC Renshaw's evidence of observing the Plaintiff speaking with a member of the bar staff at the southern end of the bar before gesturing to security. His observations of the Plaintiff swaying form side to side while standing at the bar are also rejected. 20. Constable O' Donnell's reference to being advised by LSC Church that the Plaintiff was intoxicated does not appear in her police notebook although her observations of the Plaintiff swaying and arguing do. [372] The subsequent observations of the Plaintiff slurring his words and smelling of intoxicating liquor also do not appear in her notebook. The notebook entries are described as having been made "contemporaneously", but were entered on 28 December 2011. 21. The only person who observed the Plaintiff slurring his words and smelling of intoxicating liquor was Constable O'Donnell. It was not put to the Plaintiff that he was slurring his words or smelt of intoxicating liquor nor was his stated consumption of alcohol challenged. 22. Constable O'Donnell's observation of the Plaintiff swaying whilst standing on the spot where she claimed she observed them also not put to the Plaintiff. It was put that the Plaintiff was swaying as he was going down the stairs at an earlier time shown on Exhibit H 2.1 at 22:04:12:18 however this was denied by the Plaintiff. [373] It was also put that he was swaying on the dance floor. However, I have already addressed that contention. There is no evidence of LSC Church or SC Renshaw making similar observations to Constable O'Donnell or being informed or relying on them at this time. Their observations were of the Plaintiff swaying was at an earlier point in time, which I have rejected. 23. The observations said to be made by Constable O'Donnell arose from material tendered in the Plaintiff's own case. Even so, I am not satisfied that Constable O'Donnell made an assessment of intoxication, let alone that her asserted observations were accurate. 24. Mr Cheikho, Mr Almir and the two other officers did not give evidence of observations of the Plaintiff slurring his speech or smelling of intoxicating liquor. Whilst Mr Cheikho did ask Mr Almir to "check if he [the Plaintiff] was showing signs of RSA" [374] he recorded telling the Plaintiff "your [sic] not drunk don't worry." [375] He further recorded that: "it is my opinion that the male was actually not intoxicated and for that reason I was trying to explain to him that he could go back inside the venue." [376] Mr Cheikho further recorded telling Mr Sagoa that: "No [the Plaintiff] was not drunk" and Mr Tanner two days later: "the [Plaintiff] was not drunk. The male was pointed out by male bar staff for being drunk. I assessed him and I am positive that he wasn't. He didn't smell of alcohol." [377] 25. Constable Grime gives an account of observations and assessment of the Plaintiff as noted earlier in these reasons. The evidence of LSC Church [378] , Constable O'Donnell [379] and SC Renshaw [380] however indicate that Constable Grime was not present when LSC Church went to speak with security. It was subsequent to the departure of LSC Church that SC Renshaw carried out a search of the Plaintiff. [381] If Constable Grime was present he would have witnessed it but he gives no evidence of doing so. Instead he claims he asked LSC Church whether the Plaintiff had been searched [382] before carrying out a further search and taking custody of the Plaintiff's belongings from SC Renshaw. [383] 26. Constable Grime statement is dated 22 February 2012 and stated that he refreshed his memory from his police notebook and the COPS entry E48552289. His notebook entry contained no relevant information of observations and assessment of the Plaintiff. In the circumstances I am unable to accept his observations and assessment of the Plaintiff as being made or if made, reliable. I do not accept that he was present before SC Renshaw carried out his search. 27. For reasons which appear below, I do not in any event accept that the Plaintiff repeatedly asked why he was removed from the Shore Club and I regard this, as well as the assertion that he had to be told his by police multiple times as being implausible. 28. Whatever the circumstances, Constable Grime made a decision on route in the vehicle to release the Plaintiff rather than transport him home as had earlier been indicated in the VKG recording. [384] His observations of the Plaintiff at that time jogging over Pittwater Road and not seeming to be having any difficulty running or performing normal movements [385] are not easily reconciled with those he made earlier of an intoxicated individual and those of his colleagues the moments before that the Plaintiff was unsteady on his feet and swaying from side to side. 29. Constable O'Donnell gives evidence that together with LSC Church, she went to obtain the name of the person who refused service to the Plaintiff. She stated that security walked with them and gave her the details of the staff member who had refused the male service. This evidence has been referred to earlier in these reasons. [386] 30. LSC Church gave no account of being accompanied by Constable O'Donnell to speak to security after the event. The COPS entry [387] and his statement indicate that he went alone. [388] The relevant details were recorded in his notebook. [389] SC Renshaw also does not indicate that Constable O'Donnell went with LSC Church. [390] Constable O'Donnell does not record in her notebook attending on security with LSC Church. [391] There is no evidence from Mr Almir that he was approached and spoken to him by police after the Plaintiff was removed from the Club. [392] The Plaintiff's evidence at the time he was searched was that the 'police lady' was present. [393] 31. The significance of this is the conversation is said to have occurred between the Plaintiff and SC Renshaw in which the Plaintiff repeatedly asked "but why?" This could not have been witnessed by Constable O'Donnell if she accompanied LSC Church to speak to Mr Almir. Indeed LSC Church does not recount hearing it and SC Renshaw's account is that it occurred when LSC Church had left the wall area. However the statement from Constable O'Donnell to the Plaintiff: "Sir you have been told at least twenty times why you have been asked to leave" appears unlikely to have been made unless the Plaintiff had repeatedly asked SC Renshaw why he was asked to leave and if Constable O'Donnell heard those requests and SC Renshaw's responses. This aspect of the evidence is first recorded in SC Renshaw's notebook. [394] 32. I accept that when first observed it was reasonable for police to believe that the Plaintiff was refusing to cooperate and argumentative. I do not accept the Plaintiff's account of his interaction with police prior to him being turned out of the Shore Club. It is clear from Exhibit H that he did converse with police yet his account provides no detail of it and implausibly suggests he was being turned out with no reason given. At one point whilst being spoken to by police he was seen on Exhibit H to be turning his attention to his mobile phone. 33. I am not satisfied that there was any conversation between police and Mr Almir identifying the Plaintiff as being intoxicated or being identified by bar staff as appearing to be intoxicated until after the Plaintiff was removed from the Shore Club. Despite all the time that elapsed, the person at the Shore Club identifying the Plaintiff as appearing to be intoxicated or speaking with Mr Cheikho has not been confirmed. It is unclear where, if at all, LSC Church obtained the name of Mahmoud Mahmoud bearing in mind no one else either from the Shore Club or Group Services Australia Pty Ltd is able to confirm who he is or what role if any he played. 34. On the evidence I am not satisfied that there was any relevant conversation with either Mr Cheikho or Mr Almir and police about the Plaintiff being intoxicated. Neither formed such a view and neither gave evidence of passing on such information to police. The basis on which they were seeking to move the Plaintiff was outlined earlier. This is confirmed by what Mr Raftopoulos had stated when after the incident that he: "… asked one of my security, Mohammed , I don't know his last name what happened and he kind of shrugged and said the police wanted him out." [395] 1. It follows that I reject the evidence of LSC Church and SC Renshaw that they acted following being told by Mr Almir that the Plaintiff was identified as being too intoxicated and that he would not leave. [396] 2. On the evidence I am nevertheless satisfied that the Plaintiff refused to leave. 3. To the extent the LSC Church and SC Renshaw relied on s 77(5) of the 2007 Act as the source for their actions, they could only have done so on the basis of their own observations and assessment of the Plaintiff although any information supplied by others may have reinforced their assessment. 4. A number of signs are referred to as "noticeable signs of intoxication" in the Intoxication Guidelines issued under s 5(3) of the 2007 Act. However the Guidelines state that the symptoms or signs are not exhaustive and not necessarily conclusive of intoxication. The definition of intoxication set out in s 5(1) of the 2007 Act specify:- 5 Meaning of "intoxicated" (1) For the purposes of this Act, a person is intoxicated if: (a) the person's speech, balance, co-ordination or behaviour is noticeably affected, and (b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor. (2) Accordingly, a reference in this Act to intoxication in relation to licensed premises is a reference to the presence of intoxicated persons on the licensed premises. (3) The Director-General is to issue guidelines to assist in determining whether or not a person is intoxicated for the purposes of this Act. Such guidelines are to be made publicly available in such manner as the Director-General considers appropriate. (4) The guidelines issued by the Director-General may also indicate circumstances in which a person may be assumed not to be intoxicated for the purposes of this Act. 1. s 5(1)(a) of the 2007 Act is disjunctive and does not require all the aspects (that is, speech, balance, co-ordination or behaviour) to be "noticeably affected". Furthermore there may be an overlap between the features in s 5(1)(a) and a person being violent, quarrelsome or disorderly under s 77 (2) (a) of the 2007 Act. 2. s 5(1)(b) of the 2007 Act however, requires an additional factor to be present for a person to be "intoxicated". That requirement is that there were reasonable grounds to believe that the affected speech, balance, co-ordination or behaviour are the result of the consumption of liquor. Beyond this there is no threshold for intoxication. The Guidelines state that reasonable grounds for a belief take account of the relevant knowledge and facts presented. 3. Counsel for the Plaintiff put his submission on the issue as follows:- "Section 77 of the Liquor Act and it's 77(2)(a) and the right to eject is to be found in 77(4) and that's premised upon an entitlement to refuse admission which depends upon the matters in 77(2)(a). There was no entitlement to turn him out unless one of those matters in fact existed. The only one of those matters which the police claimed was intoxication and the evidence is to the contrary of that proposition." [397] 1. The matter has to be based on the observations and information held by LSC Church and SC Renshaw at the time they exercised any power to turn the Plaintiff out. 2. On the evidence I am not satisfied that the Plaintiff was intoxicated within the terms of s 5(1) of the 2007 Act or was assessed as such. I do not accept that the officers in question observed Plaintiff's speech, balance, coordination or behaviour was noticeably affected within the terms of s 5 such that it was reasonable in the circumstances for them to believe that it was the result of the consumption of liquor. For the reasons given I do not accept that either officer was advised to this effect or that they made the observations they claim to have made. The Plaintiff may well have been exhibiting some conduct referred to in s 5(1)(a) of the 2007 Act, however that is insufficient. 3. Despite making entries referred to in the incident register, Mr Sagoa who himself saw the Plaintiff escorted down the stairs and provided the Plaintiff with a statement in which he asserted that the Plaintiff was not intoxicated. [398] Ms Campbell also stated the Plaintiff was not intoxicated. [399] These opinions are of lesser weight as they are based on limited observations and interaction with the Plaintiff at a subsequent point in time. Nevertheless they are consistent with the assessment of Mr Cheikho and observations of Mr Almir which I have accepted. 4. The Defendant further submitted:- "The defendant says that Church and Renshaw, each of or either of them were entitled to exclude the plaintiff from the licensed premises and when he refused to leave, they were entitled pursuant to 77(5), use such reasonable degree of force as may be necessary to be used to turn a person out of a licensed premises. Your Honour has before you exhibits H1, H2 and H3 which are copies of the CCTV footage at the material times. That evidence is incontrovertible evidence which clearly depicts the plaintiff quarrelling or arguing with firstly, the security officers and then the police officers. Your Honour, we say that evidence will satisfy you that the police were entitled to remove him as they did. They were entitled to use reasonable force and we say that's all that was used. HIS HONOUR: On the grounds of being quarrelsome. SPARTALIS: Or argumentative. HIS HONOUR: Section (2)(a) talks about quarrelsome. SPARTALIS: Yes, quarrelsome we say is depicted in the video footage where your Honour can see the plaintiff not leaving. Your Honour, I might add, if your Honour accepts, which we say you must, that the plaintiff was asked to leave, by remaining he was trespassing. His license had been revoked. If your Honour is not satisfied that there was power under s 77, the defendant states in accordance with its defence that the officers had reasonable grounds to suspect that the plaintiff was committing an offence, and that offence was failing to quit when asked to. For assistance with reasonable grounds to suspect-- HIS HONOUR: Just take me through your defence, please. SPARTALIS: Sure. HIS HONOUR: You say at para 9? SPARTALIS: Paragraph 9, yes. In answer to paras 10, 11 and 12 to 17, the plaintiff's license to remain at the Shore Club had been revoked by the security guards. We say that he had been asked to leave by the security guards and your Honour will see at 9(c) that Renshaw and Church were assisting a representative of the occupier to remove the plaintiff. But either way, your Honour, the police were entitled to remove him, we say, because he was quarrelsome, intoxicated or argumentative. I accept that argumentative and quarrelsome are very similar. HIS HONOUR: It rises no higher than quarrelsome. SPARTALIS: Yes." [400] 1. During submissions the issue was further explored with Counsel for the Plaintiff, and in particular whether the Plaintiff, if not intoxicated, could nevertheless be removed under the other criteria in s 77(2)(a) of the 2007 Act. Counsel for the Plaintiff submitted:- "The police have the right to turn out a patron who is quarrelsome and has been asked to leave but just as the police must state the powers they are exercising when they arrest somebody, that being essential to the whole notion of arrest, so it is submitted they can only turn somebody out for the basis upon which they are proceeding, which is, in this case, is supposed intoxication and nothing else. There's never been a suggestion that the police used their powers and it's they who are turning him out because he was quarrelsome. They've only said that they turned him out because he was intoxicated and that is a proposition that finds no support in the evidence of any of the hotel staff, it is indeed negated by some of them." [401] 1. Where an assessment of intoxication cannot be made due to s 5(1)(b) of the 2007 Act not being satisfied, it does not follow that the same conduct would nevertheless engage the exercise of discretion under s 77(2)(a) as being "violent, quarrelsome or disorderly." The relevant features may be transitory or more sustained. The features which may activate the discretion under s 77(2)(b) may be at a different level under s 77(2)(a) of the 2007 Act. 2. There is no evidence at this time that LSC Church and SC Renshaw exercised discretion under s 77(2)(a) of the 2007 Act on the grounds of the Plaintiff being "violent, quarrelsome or disorderly." It is true that the Plaintiff was questioning his removal at the time, however this is a far from suggesting that even if the Plaintiff was not intoxicated, the Police would nevertheless have exercised the discretion under s 77(2)(a) on the grounds of the Plaintiff being "violent , quarrelsome or disorderly" (or to put it as the Defendant submitted, because the Plaintiff was argumentative or quarrelsome). 3. It follows in my view that the power in s 77(3) was not engaged and accordingly the Defendant's second argument fails. 4. It is not in issue that were the power under s 77 to have been exercised it would not engage s 201 of the Law Enforcement Powers and Responsibilities Act 2002 (NSW) [402] as Schedule 1 of that Act states that it does not affect the 2007 Act. Breach of the peace 1. Thirdly, the Defendant in the alternative asserted that the actions of LSC Church and SC Renshaw in relation to the first alleged assault was lawful, as:- 1. The officers believed that the Plaintiff would imminently breach the peace if not moved on; [403] 2. SC Renshaw and LSC Church were authorised … the common law vis-à-vis breach of the peace powers of police … to use reasonable force to turn out the Plaintiff from the Shore Club; [404] 1. In submissions, the Defendant relied on a passage of Barr J in Director of Public Prosecutions v Gribble, where his Honour stated:- "[24] It seems to me that that is the intent of the legislation and that the submission should be accepted. This approach is consistent with the common law. In Johnson v Phillips [1975] 3 All ER 682 it was said at 685 – The first function of a constable for centuries has been the preservation of the peace. His powers and obligations derive from the common law and statute. It is his general duty to protect life and property…the powers and obligations of a constable under the common law have never been exhaustively defined and no attempt to do so has ever been made: see, for example, R v Wakefield [1963] 3 All ER 659 where Ashworth J, who delivered the judgment of the court said: '…it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed'. Also there is the case of Rice v Connolly [1966] 2 All ER 649, where Lord Parker CJ said: 'It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those…'" [405] 1. The Defendant cited s 6(3)(a) of the Police Act 1990 (NSW) which authorises the NSW Police Force to provide services by way of prevention and detection of crime. [406] The Defendant submitted that if the police have an obligation to prevent crime, police has, by way of analogy, an obligation to prevent a continuation of crime in progress including a trespass and a failure to leave licensed premises when requested, or a breach of the peace is anticipated. [407] Further in support, the Defendant stated:- "[226] The plaintiffs [sic] failure to leave, his quarrelsome behaviour and his behaviour as observed in EX H1 and H3, leave no doubt that the plaintiff was intoxicated, quarrelsome and resisting the police and that the police were entitled to remove him to prevent an anticipated or impending breach of peace justified by his behaviour. [227] To suggest that the arrest for breach of the peace was made up lies in stark contradiction to the evidence in Ex F at 91, the contemporary incident report prepared by Sagoa stating that the plaintiff was "violent/aggression", "fail to qui" and "intoxication" and Renshaw's contemporary notebook entry Ex F 120 created on the 3rd December 2011 which clearly states: 'He was … taken to a bus stop … to prevent a breach of the peace.'" [408] 1. In oral submissions, the Defendant submitted that the Plaintiff's resistance and defiance constituted an impending or imminent breach of the peace. [409] 2. Although the Defendant in its submissions cites police exercising a power to turn out, there can be no doubt that at common law, this would amount to an arrest, thereby invoking the requirements of s 201 of the 2002 Act. 3. The Plaintiff drew attention to the fact that at common law an arrest is effected when an arresting officer makes it plain to the person being arrested, by words and/or conduct, that he or she was no longer a free person. [410] To this end, no precise form of words is necessary provided that the person submits to the compulsion. [411] 4. Counsel for the Plaintiff submitted as follows:- "… A key question is what conversation occurred between police and Thomlinson at the top of the stairs. An account of that conversation was given by Church and I'll take you to it in a moment. The State will have to persuade you that this conversation in fact occurred in circumstances where the sworn evidence from Thomlinson is that it did not and in circumstances where the time available between the first police contact with Thomlinson and him being taken away down the stairs is 11 seconds. The conversation your Honour, was this according to Church's statement. "Mate you are intoxicated and have been asked to leave, it's time for you to leave the premises." This is at page 149 and following your Honour of exhibit F. Near the foot of the page - can I start again? Sorry, we have O'Donnell saying, "mate you are intoxicated and have been asked to leave, it's time for you to leave the premises." And then over the page at 150, Church, according to this statement, says, "mate, I am Senior Constable Church from Manly Police, you have been asked to leave the premises by security, due to your intoxication level. At this time I am also asking you to leave the premises." "But why do I have to leave?" "As I just stated, you have been asked to leave due to your intoxication levels." "But why?" "Staff at every licensed premises have the power to ask any person to leave at any time. If you do not comply with this direction, then you are committing an offence. You have to leave now." "No." Now, your Honour, the conversation takes 25 seconds or more to recount that normal speed. Indeed when I related it, it takes distinctly longer than that but I'm perhaps a trifle slowly spoken. It is said to have been a conversation between a police officer and a man who was reckoned to be intoxicated and it makes no sense for it to have been gabbled. There was not time for the conversation contained in the Church statement to have occurred between first contact with police and him being grabbed by Renshaw and taken away and that is the first problem that the statement faces." [412] 1. In R v Howell (Errol), [413] Watkins LJ stated:- "We share the opinions expressed in the foregoing quotations … Furthermore, we think, the word "disturbance" when used in isolation cannot constitute a breach of the peace … We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant." 1. In Poidevin v Semaan, Leeming JA favourably cited R v Howell. [414] His Honour also noted that the effect of ss 4 and 201 of the 2002 Act was "to impose obligations on the police officer exercising the power … and that obligation applies even when the power … derives from the common law. [415] 2. Further, Leeming JA approved [416] the following passage from Williams, 'Arrest for Breach of the Peace" [1954] Criminal Law Review 578 at 590:- "At common law the police may interfere in some limited ways, even with an innocent person, for the preservation of order. The leading case is Humphrey v Connor (1864) 17 Ir R 1, an Irish decision that has won approbation in English books. It was there held that a constable could commit what would otherwise have been an assault upon an innocent woman (taking an orange lily from her, which was causing offence to others), if that were the only way of preserving the peace." 1. Howell was also cited in State of New South Wales v Tyszyk [417] . By way of obiter, Campbell JA noted that "acceptance of the account of breach of the peace in Howell has not been universal" stating:- "[95] … In Nicholson v Avon [1991] 1 VR 212, Marks J said at 221: A number of cases have been cited by counsel in which a definition of breach of the peace has been attempted: R v Howell (1981) 73 Cr App R 31, at p 37; R v Chief Constable of Devon and Cornwall [1982] QB 458, at p 471; Valentine v Lilley [1982] 2 All ER 583, at p 590; Simcock v Rhodes (1977) 66 Cr App R 192; Parkin v Norman [1982] 2 All ER 583, at pp 587–8; Innes v Weate [1984] Tas R 14, at p 22 and articles "Arrest for Breach of the Peace" by Glanville Williams, and Leigh, "Police Powers in England and Wales". I am not persuaded that I should regard the attempted definitions as exhaustive of the meaning to be given to the expression "breach of peace" or "threatened breach of peace". The facts in a particular case will or will not appeal to a court as justifying a conclusion by police officers that there was a breach of the peace or a threat of it. [96] In State of New South Wales v Kuru [2007] NSWCA 141; (2007) Aust Torts Reports 91-893 at [149] Ipp JA said: A breach of the peace occurs when an act "either actually harms a person, or in his presence, his property, or is likely to cause such harm, which puts someone in fear of such harm being done": R v Howell (Errol) [1982] QB 416 at 427 per Watkins LJ, in delivering the judgment of the English Court of Appeal. This statement of the law was followed by the English Court of Appeal in Addison v Chief Constable of West Midlands Police [2004] 1 WLR 29 at 30 to 31. See also Nicholson v Avon [1991] 1 VR 212 at 222. [97] That statement was neither agreed with nor disagreed with by other members of the court (Mason P and Santow JA). Further, I note that it was made in a context where the prime concern was to decide whether a police officer had, at common law, a power to enter private property when a breach of the peace was apprehended. There was no doubt that the police officers in Kuru had reason to believe there may be violence, because they were attending the premises in response to a complaint of a violent domestic incident." [418] . 1. Campbell JA went on to note that there was authority which suggested an extended application in Howell:- "[100] That likewise does not seem to restrict the activities of constables to activities connected with violence or its prevention, except perhaps in the extremely extended sense that any system of law can be seen as a discouragement to self-help through violence as a means of remedying wrongs. There is authority that a party may be bound over to keep the peace even if no person has been put in bodily fear, and even if nothing has been done which tends to a breach of the peace in the sense of something which is calculated to lead to violence: Lansbury v Riley [1914] 3 KB 229; R v Sandbach; ex parte Williams [1935] 2 KB 192 esp at 196; Ackers v Taylor [1974] 1 WLR 405." 1. Campbell JA did not determine the correctness of the extended application of Howell as it was unnecessary to do so on the facts. [419] 2. The Defendant did not seek to develop an argument contrary to that expressed by the Plaintiff referrable to the decision of Howell. 3. Counsel for the Plaintiff, after referring to Howell, submitted:- "It is, we submit, an a risiable proposition that there was anything in Mr Thomlinson's conduct on the night in question which can be described - can be brought within the terms of that judgment or can be described as an attack or threatened attack upon the body or property of anybody and no arrest for the breach of the peace can, in the circumstances, be justified." [420] 1. On the evidence, I accept that this is so and it follows that the action that LSC Church and SC Renshaw took at this point could not be supported on the basis of them arresting the Plaintiff to prevent a breach of the peace. 2. The Plaintiff was on any version not told at this point that he was being arrested for breach of the peace as required by s 201(1) of the 2002 Act. Nor was any argument put that it was impractical to do so at that time. To the extent that the Defendant submits that LSC Church's statement [421] indicates that he complied with his obligations in this regards I reject that evidence for reasons which appear below in consideration of the of the Defendant's fourth argument. Reasonable grounds to suspect an offence had been committed 1. Fourthly, the Defendant asserts that the power of arrest for an offence was engaged. The Defendant contended that for the purposes of s 99(2) of the 2002 Act police had reasonable grounds to suspect the Plaintiff had committed an offence namely s 77(4) of the 2007 Act. In these circumstances it was asserted that police had reasonable grounds to suspect that it was necessary to arrest the Plaintiff to: 1. Prevent him from continuing to commit at offence pursuant to section 77(4) of the 2007 Act thus engaging s 99 (3) of the 2002 Act; and/or 2. Preserve the safety or welfare of the Plaintiff who was intoxicated. [422] 1. The Defendant's submissions set out the basis for the asserted suspicions arising but did not identify evidence that the arrest power in question was in fact used. [423] 2. The evidence of LSC Church indicates that he introduced himself to the Plaintiff and advised that he was a police officer from Manly Police. LSC Church stated that he directed the Plaintiff to leave and if he did not comply he would be committing an offence. [424] This was supported by the statement of Constable O'Donnell [425] and SC Renshaw. [426] The Plaintiff did not contend that this would not constitute compliance with s 201(1) of the 2002 Act, but rather disputed these words being said. In this respect, Counsel for the Plaintiff submitted:- "Now, your Honour, the conversation takes 25 seconds or more to recount that normal speed. Indeed when I related it, it takes distinctly longer than that but I'm perhaps a trifle slowly spoken. It is said to have been a conversation between a police officer and a man who was reckoned to be intoxicated and it makes no sense for it to have been gabbled. There was not time for the conversation contained in the Church statement to have occurred between first contact with police and him being grabbed by Renshaw and taken away and that is the first problem that the statement faces." [427] 1. Further, in reply, Counsel for the Plaintiff submitted:- "There's a few points in reply. Firstly, we submitted that on Thursday last that the defendant had problems. The first identified was that there was not time for the conversation contained in the Church statement, and agreed to by O'Donnell word for word, to have taken place. That has not been rebutted or even engaged with by counsel for the State, and they've had five days to think about it." [428] 1. Counsel for the Defendant however, did raise the following:- "[105] On behalf of the plaintiff, it is asserted from the bar table, that the conversations referred to earlier between the plaintiff and Church, could not have occurred in the time allowed. It does not come from any evidence about the speed or tone at which the conversation was hand. To suggest that words would not have been said in a particular period of time without testing the possibility is itself risible. The likely hood [sic] is that whatever conversation took place, it would have been quick. There can be no doubt as to the effect of the conversation." [429] 1. On the evidence I am not satisfied that the asserted conversation took place. Neither in the first COPS entry nor the notebook entry of SC Renshaw was there any evidence of the Plaintiff being arrested for an offence, or an intention to bring proceedings against him for an offence as at 3 December 2011. Whilst Constable O' Donnell asserts that the Plaintiff was advised that during a "struggle [the Plaintiff] was placed under arrest for breach of the peace and failing to leave premises" [430] that was made on 28 December 2011 and relates to the second alleged assault. Constable Church in the first police copy of the penalty notice issued, stated that the Plaintiff was arrested for breach of the peace not an offence and even then, it did not identify when that occurred. [431] I do not accept LSC Church's evidence at [12] of his statement that suggested compliance at this time with s 201 of the 2002 Act. It was not supported by the Plaintiff, Mr Cheikho or Mr Almir. Nor do I consider that it could have occurred in the time for the reasons put by the Plaintiff, which in my view is consistent with Exhibit H. 2. Beyond this, Counsel for the Plaintiff drew attention to the fact that what occurred could not have constituted an arrest under s 99 of the 2002 Act stating:- "The third problem for the State concerns arrest, or lack of it. As Thomlinson was the product of his liberty, the State must justify that. He was not arrested for a statutory offence or by warrant and, as we know, he was not taken before a magistrate at the earliest possible opportunity. Section 99 of LEPRA cannot be availed of by the State on behalf of these police officers. He was supposedly arrested for breach of the peace. He denies that he did. His evidence, his sworn evidence, is that he asked if he was being arrested and that was answered in the negative. As I was saying, the State cannot avail itself of s 99 of LEPRA because we know he was not arrested for a statutory offence or pursuant to warrant and was not taken before a magistrate so it can't have been a s 99 arrest." [432] 1. The Defendant made no submissions to a contrary effect. 2. It follows that the purported reliance on s 99(2) of the 2002 Act to justify the Plaintiff's arrest must fail and the Plaintiff's claim of battery is established. Second assault 1. In his Amended Statement of Claim, the Plaintiff alleges that he walked along the corridor from the foot of the stairs to near the entrance of the Club he was thrown to the floor facedown by LSC Church and SC Renshaw. [433] He alleges that SC Renshaw then jumped onto his back driving both knees into his lower back causing him immediate and considerable pain. Thereafter the Plaintiff pleads that he shouted that he was hurt and for SC Renshaw to get off his back. [434] SC Renshaw is said to have driven his left knee with his full weight onto the Plaintiff's spine before being handcuffed by Constable O'Donnell. [435] 2. In the Plaintiff's Schedule of Issues this is referred to a battery. [436] 3. In relation to this aspect of the Plaintiff's claim, the Plaintiff submitted:- "[93] When these falsities are contrasted with the objective factual evidence from independent witnesses, including Ms McKirgan's evidence that she heard the officers saying 'get down, stay down', the open and proper inference is that the Plaintiff was thrown to the ground at the entrance to the Shore Club and that this act was performed by the officers Church and Renshaw with the intention cause him injury. [94] There was then simply no justification for officer Renshaw to jump on the Plaintiff and drive his knee into the base of his spine. This is the open and proper finding on the objective factual evidence which includes the presence of a further two Police officers who could have been called upon to assist with the restraint and handcuffing of the Plaintiff. The only proper inference is that officer Renshaw performed this act with the intention to cause injury to the Plaintiff." [437] 1. One of the major criticisms made of the Plaintiff arose from the evidence of Mr Raftopoulos, who had stated that the Plaintiff had called him. During this call, Mr Raftopoulos stated that the Plaintiff had complained and accused him, and his security staff of kicking him out of the club for no reason. The Plaintiff further alleged that security had injured his back and stated that he was seriously considering taking action and suing the club. The Defendant submitted:- "…That evidence confirms that the plaintiff clearly had no recollection that the police were involved in his removal from the Shore Club. (The plaintiff denied this in cross examination T223.14). There was no reason for the plaintiff to tender Raftopoulos' evidence. There is no reason to doubt it. Raftopoulos' version has not been impugned even though the plaintiff denies it." [438] This supported by the fact (undisputed) that plaintiff did not tell anyone at Mona Vale Hospital on 4 December 2011 that he had been assaulted by Police officers. His "explanation" that he deliberately did not tell anyone because he was afraid of the police is not credible in circumstances where, after he had spoken with Michael Raftopoulos, he then conveniently recalled the police involvement." [439] 1. The Plaintiff's account of leaving the Shore Club on the evening in question and exchanging "strong words" with the officer, who he claimed had kneed him in the back, was not challenged. Nor was any officer called to contradict his claim. The action of the Plaintiff is inconsistent with an assertion that he had told Mr Raftopoulos that "security injured his back." 2. Beyond that the Plaintiff in his statement of serious misconduct of 13 December 2011 stated that when he was on the wall he identified the person who searched him and the person who "kneed me." He asserted he said to the person: "Why did you knee me in the back, you have really hurt me? I am going to report you for assault." [440] Viewing the CCTV footage would not have necessarily revealed to the Plaintiff that the officer who he asserted had kneed him was the same officer who searched him following the incident. No other source for this knowledge was identified as at the date that the Plaintiff made the report. 3. Furthermore the Plaintiff's evidence was that whilst on the wall opposite the Shore Club, he asked to speak to the officer in charge and sought the name of the officer who '"did this to him" so he could report him for assault. He stated that he was given the name "Grime". Whilst he was challenged about being given the name Grime, he was not challenged about asking to speak to the senior officer asking for the name of the officer who kneed him and the fact that he stated that he was going to make a complaint about him. 4. The Plaintiff may not have been aware of the name of the police officer involved in the incident on his back, however I am satisfied that he aware that it was a police officer, based on his evidence which including remonstrating to the officer in question, as he was escorted from the club, identifying him as the person who searched him and advising that he wanted to speak to the senior officer and make a complaint. The Plaintiff was clearly aware the incident occurred in the context of him being handcuffed. I accept that he had a grievance with the security staff over what had occurred on the evening in question. I accept that he raised it with Mr Raftopoulos in their encounter prior to viewing the CCTV footage. In circumstances where Mr Raftopoulos was not called and cross-examined I am unable to ascribe much weight to his assertion that the Plaintiff that stated "security injured my back and I am seriously considering taking action and suing your club." 5. There was also other evidence to be considered beyond that given by the Plaintiff, being that of the other employees. 6. The Defendant submitted:- 1. That Honora Campbell could not be accepted in relation to observations she claims she made of not seeing any stumble or fall on the stairs on the part of the Plaintiff and the three police officers as the CCTV footage in Exhibit H3 at Camera 17 at 00:19:06 shows that she was looking forward and did not turn around until she heard a commotion. [441] Further the Defendant states that the CCTV footage in Exhibit H1 shows that the Plaintiff was only being escorted down the stairs by two police officers with Constable O'Donnell following. [442] The Defendant submitted that Exhibit H1 demonstrates that at least one police officer was already bent over by the time Ms Campbell turned her head to look and she could not possibly have seen anything that was happening behind her. In these circumstances it was contended that she could not have seen anything that occurred prior to that time including the Plaintiff striking LSC Church or the Plaintiff being escorted down the hallway. 2. By reference to Exhibit H1 and Ms McKirgan's movement by the time she turns around the Plaintiff is surrounded by security guards and police officers. In these circumstances it was submitted that it was likely that if the Plaintiff was resisting initially, Ms McKirgan would not have seen it. [443] It was further submitted that she was in a position to hear a person say "no need to do that to him" as the Plaintiff asserted, but did not testify that she heard them leading to an inference that those words were not said. 3. Although Ms Sanae Edward's evidence was untested it was consistent with the police version. It was asserted that Ms Edwards was the third scanner in Exhibit H1 and could view the Plaintiff with an unobstructed view. [444] 1. I accept that Ms Campbell did not see the Plaintiff, LSC Church and SC Renshaw coming down the stairs. Nor could she recall police saying anything. [445] She recalled hearing the Plaintiff saying "I don't understand. I don't know why this is happening." [446] Nevertheless her clear evidence was that one officer had his right knee in the Plaintiff's back although she did not see anyone "jump on" the Plaintiff's back. [447] She stated that "the whole motion of him being upright to going on the ground was quite harsh." [448] 2. Ms McKirgan's evidence was that she heard the words "get down, stay down". She stated that she did not see the Plaintiff perpetrate any violence. [449] She maintained that the Plaintiff was not resisting but she saw an officer place a knee vertically on the Plaintiff's back. [450] She rejected the assertion that the Plaintiff would not surrender his arms for handcuffs describing the position as "a bit awkward" and "very awkward." [451] I accept that from her vantage point she was able to make these observations. A contrary proposition was not put to her and I do not accept that Exhibit H1 demonstrates otherwise. 3. Ms Edwards was not identified in Exhibit H1 by reference to the evidence and her evidence was untested. However her observations of the Plaintiff resisting were inconsistent with the evidence of the both Ms McKirgan and Ms Campbell. At one point she said she saw a man on the floor with a few police men on top of him. [452] Later in her evidence she stated:- "I have a feeling one of the police had his knee on the man's back to hold him down and I can't really recall what the other policeman was doing however he was helping by holding the man down somehow." [453] 1. In the circumstances I am not satisfied that her account is reliable. 2. Constable O'Donnell did not witness any resistance or striking of LSC Church by the Plaintiff as he came down the stairs. Although she claimed to have collected a police cap on the landing between the stairs as she later followed them down, the only person who was wearing a police baseball cap was SC Renshaw and he clearly retained it after the landing. As she ascended the stairs she had a cap in her hand. Whilst Exhibit H shows Constable O'Donnell bending down at the landing I do not accept that it was to collect any police cap belonging to LSC Renshaw. Clearly its falling had nothing to do with any incident involving a struggle with the Plaintiff as it is said to have occurred half way down the bottom flight of stairs [454] or the bottom of the stairs. [455] 3. Mr Sagoa's evidence whilst somewhat confusing ultimately maintained that the officer was on the back of the Plaintiff and had the left knee placed somewhere on his back. [456] 4. Mr Raftopoulos stated:- "… I recall the incident, all I saw was two or three police escorting a gentleman down the stairs as I was coming up the stairs. This man was thin, shaven head, medium height, white caucasian, he looked to be in his late 20s. I can't remember what he was wearing. I saw the police escort him from the landing on the mid level down the first flight of stairs. Everything seemed normal and when I got to the top of the stairs, I asked one of my security, Mohammed, I don't know his last name what happened and he kind of shrugged and said the police wanted him out (emphasis supplied). [457] 1. Consistent with his notebook entry, [458] SC Renshaw stated the Plaintiff continued to attempt to break free by pulling away and thrash his body from side to side and:- "Due to the [Plaintiff] resisting and pulling away from police the [Plaintiff] was then taken to the ground inside the entry to the premises. I have then placed my knees over the [Plaintiff's] back I have then grabbed the [Plaintiff's] right arm and placed it behind his back (emphasis supplied)." [459] 1. LSC Church makes no reference to the Plaintiff being taken down or that SC Renshaw having any knee(s) in the Plaintiff's back. He asserted that his own knees were not making contact with the Plaintiff and he noticed that SC Renshaw was in exactly the same position on the right side. [460] His version of events has the Plaintiff, SC Renshaw and himself losing balance and landing heavily in the ground at the bottom of the stairs. The account given by Sergeant Huleatt is that LSC Church informed him that whilst the Plaintiff was being removed one of the police officers had been struck in the face. If in fact this occurred to LSC Church it is unusual that he would not have mentioned the fact that he was police officer that was struck [461] . 2. The Plaintiff denied that he hit any police officer either deliberately or accidentally. [462] The specific version of events outlined by LSC Church was not put to the Plaintiff although by reference to Exhibit H1 it was put that at about the time of 12:18:59:45 the Plaintiff's left arm struck Senior Constable Church in the face. [463] 3. LSC Church's account of a loss of balance on the stairs due to a struggle with the Plaintiff was not supported by SC Renshaw. 4. The differing accounts of how LSC Church is said to have been struck and the absence of any support from other civilian witness including the account of Mr Raftopoulos that "everything seemed normal" leaves me to be unable to be satisfied that it occurred. No charge of resist arrest or assault police were brought. LSC Church's failure to refer to the actions of SC Renshaw as well as the terms of Acting Inspector Huleatt's account of what he was told about the matter cause me to doubt LSC Church's credibility in particular. 5. SC Renshaw clearly accepts that the Plaintiff was taken down and records this in his notebook. Ms McKirgan was cross examined and remained firm although she acknowledged that time that had elapsed since the events in question and she could not say for certain now that she saw the Plaintiff brought down. [464] Despite this I accept her evidence and I am satisfied that the Plaintiff was told to get down and stay down and this had nothing to do with any loss of balance on the stairs. 6. The Plaintiff gives evidence of hearing a bystander say as he was on the ground "No need to do that." No other witness gives evidence of saying or hearing those words. 7. Overall I am satisfied that the Plaintiff was brought down by LSC Church and Renshaw. I am satisfied that SC Renshaw did place his knees on the Plaintiff's back (as indeed he accepts) and further that he did so using downward force as the Plaintiff testifies. This account was supported by Ms McKirgan and Mr Narwal although each of them only give evidence of seeing one knee on the Plaintiff's back. Although there were references in the evidence to SC Renshaw "jumping" on the Plaintiff's back I am not satisfied that what occurred involved more than one downward movement of each knee although I accept the Plaintiff's evidence that he experienced a force and heard a crack. This is consistent with the evidence of Dr Carr that the injury required downward "momentum" and "acceleration". [465] 8. In Croucher v Cachia, Leeming JA stated in reference to the tort of battery: "[24] The fact that the onus lay on the defendant, and the nature of what was required to be proven, was explained by Windeyer J in McHale v Watson (1964) 111 CLR 384 and by Street CJ (with whom Ferguson and James JJ agreed) in Blacker v Waters (1928) 28 SR (NSW) 406 at 410, in both cases tracing the matter back to Weaver v Ward (1616) Hob 134; 80 ER 284. There it was said that no man may be excused of a trespass "except it may be judged utterly without his fault". The position in this respect is essentially unchanged four centuries later. [25] As Gummow J said in Stingel v Clark [2006] HCA 37; 226 CLR 442 at [47]: "[I]n McHale v Watson, Windeyer J demonstrated that, contrary to the view taken by Diplock J in Fowler v Lanning, in an action for trespass to the person by a blow or missile it was for the defendant to aver and prove the absence of intent and negligence on the defendant's part, rather than for the plaintiff to aver and prove that the defendant acted either intentionally or negligently." Gummow J dissented in the result, but the statement of principle reproduced above is uncontroversial. Further, "negligence" means, in this somewhat unfamiliar context, an absence of fault on the part of the defendant (this is another way in which "negligent" bears a variety of meanings, depending upon the context: see Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167 at [39]-[41])." [466] 1. The Plaintiff's account of the location where he was forced to the ground was uncontested and is somewhat distant from the stairs. I am satisfied that the Plaintiff continued to question and challenge what was happening to him. I accept Ms McKirgan's evidence that the Plaintiff may have had difficulty surrendering his hands because of the position he was in. 2. I am not satisfied that any act of assault or resistance was committed by the Plaintiff, let alone that any such action caused the accompanying police to lose balance on the stairs. I have previously found that police could not have turned the Plaintiff out under s 77(2) of the 2007 Act. Consistent with the authorities discussed earlier irrespective of whether the Plaintiff was advised then or subsequently, I find that there was no basis for any arrest for breach of the peace. 3. It is not in issue that the Plaintiff subsequently asked to speak to the senior officer whilst outside the Shore Club. The contents of that conversation were clearly contested. 4. I do not accept that he continually questioned at this time why he was asked to leave the Shore Club. The evidence of Mr Cheikho and Mr Almir indicated that he understood that it was alleged he was intoxicated but was questioning this assessment. Further the contents of the statements of the three persons who accompanied him to the Shore Club, although earlier in time, do not evidence any lack of comprehension. I cannot accept that after the injury was occasioned to him that the Plaintiff would focus on why he was required to leave the Shore Club as opposed to the nature and circumstances of the injury he had occasioned. The assertion that he had been told twenty times that he was asked to leave recorded in SC Renshaw's notebook is not replicated in SC Renshaw's statement as coming from him. The statement from Constable O'Donnell commencing with telling the Plaintiff "Sir you have been told at least twenty times that you were asked to leave" cannot be accepted in light of her assertion that she was accompanying LSC Church to speak to Shore Club security. Constable Grime was not present during that search and I do not accept that he could have heard it either. 5. I am satisfied that the Plaintiff questioned what had occurred and asserted that he made a complaint by asking to speak to the senior officer. I am unable to determine whether he was falsely given Constable Grime's name in response to the request for the name of the officer who caused injury to his back. The conversation recorded by Constable O'Donnell in her notebook of 28 December 2011 suggests that the Plaintiff was aware of Constable Grime and was told that he had been given a lift by him, but did not otherwise appear to identify him as the "big guy that stood on my back." [467] 6. I am further satisfied that following the second assault, the Plaintiff was in pain and requested to go to hospital. I do not accept the statements of LSC Church and Constable Grime that there was a discussion with the Plaintiff in which he stated that he would be dropped off at a bus stop at Warringah Mall. [468] SC Renshaw says that the Plaintiff was told by LSC Church that he would be dropped off at a bus stop at North Manly. [469] Constable O'Donnell says that LSC Church stated to the Plaintiff that he would be dropped off at a bus stop at Warringah Mall. [470] 7. The evidence from the VKG recording established that at the time of the Plaintiff's entry into the vehicle, the intention was that he was to be taken home and this was subsequently changed on route. The area in which the Plaintiff was ultimately released was unfamiliar to him and there is no evidence that it would have necessarily facilitated his return home by bus. So much at least was conceded by the Defendant's counsel. [471] It is not in issue that the Plaintiff took a taxi home after he was released. 8. Constable Grime gave an account of observations he made of the Plaintiff when he left the vehicle, and stated:- "At no time did the male complain to me or any other Police in my presence of any injuries or pain, nor did he request treatment of any kind." [472] 1. Counsel for the Plaintiff ultimately submitted:- "Church got rid of the problem by having him put in a van and taken out of the area and that gives rise to another problem for the State in these proceedings in that the records show he was to be taken home but he was not, nor was he taken to hospital where, on the sworn evidence, he asked to be taken. It would, of course, be very untidy for the police to take a man injured while in custody to hospital and, accordingly, they simply dumped him and he was told he would find his own way home." [473] 1. Counsel for the Defendant rejected this inference being drawn, stating:- "The plaintiff says he was protesting about his injuries, he was in severe pain, and he pleaded to be taken to the hospital. He, the person who claims to be suffering this pain, is in a position not on one occasion, on two occasions we know of from the evidence, to take himself to the hospital. That's where he said he wanted to go. He said he wanted to go to the hospital, he wanted the police to take him to the hospital. What does he do? He jumps in a taxi and goes home and takes a Panadeine. If that's not enough, when he got home and he was in severe pain, had been pleading to go to the hospital, his wife was there with a car, with a baby seat, she was with a baby, why didn't he have his wife take him to the hospital? What should your Honour make of all that? Your Honour should find this, and it's a comfortable finding we say, because it is illogical, his evidence. Your Honour should find that the plaintiff never ever once during the time he was with the police indicated to them that he should have been taken to the hospital. [474] 1. The Defendant also referred to the police denying that the Plaintiff asked to go to the hospital. [475] This submission appears to relate to Constable Grime's evidence referred to earlier. 2. It is difficult to understand the purpose of Constable Grime adding this information referred to in relation to a statement prepared for the criminal proceedings. It implies that Constable Grime was aware as at 22 February 2012 that the Plaintiff had at some point asserted a request to be taken to hospital. At that time the only source of such knowledge (apart from the Plaintiff) would have been the Plaintiff's report of serious misconduct. [476] However even if an inference was to be drawn that this was his source, [477] Constable Grime's evidence can be given little weight in light his limited presence at the scene as I have found, and Constable Grime not being present for cross-examination. 3. I accept that the Plaintiff's injuries were such as to be productive of complaint as he testified. I accept that there is no suggestion that his injuries were either life threatening or an emergency. Nevertheless they were significant and productive of pain. 4. Making the request to be taken to hospital whilst in Manly is not contradicted by the fact that he subsequently made his way home after being dropped at location which was unfamiliar when Mona Vale Hospital was further north of his home. The assertion that he was intending to catch a bus home is implausible – the destination was changed on route from one of originally taking him home and it was not known whether a bus could take him home from the location he is said to have been dropped off (being after Oliver Street on the southern kerb of Pittwater Road). [478] 5. In the absence of any evidence from the Defendant and bearing in mind the provision of s 140 of the Evidence Act 1995 (NSW), I am satisfied that the Plaintiff's contention as to the motives of LSC Church is the proper conclusion to be drawn. It corresponds with LSC Church's inaccurate description of SC Renshaw's actions whilst handcuffing the Plaintiff. 6. In the circumstances I am satisfied that a battery was committed to the Plaintiff and the Defendant has not discharged the onus of establishing that the battery was committed unintentionally and utterly without fault on the part of either LSC Church or SC Renshaw. Third assault 1. The Plaintiff alleged that whilst remaining handcuffed he was unlawfully searched by SC Renshaw who removed his wallet and phone and various business cards from his pocket. [479] 2. This was described in the Plaintiff's Schedule of Issues as a battery and trespass. [480] 3. The Plaintiff asserts that this search was not sanctioned by s 23(1) of the 2002 Act. Counsel for the Plaintiff submitted that even if the Plaintiff was arrested for breach of the peace, s 23 of the 2002 Act can have no application as it is dependent on an arrest for an offence or under a warrant. [481] Counsel for the Defendant did not argue otherwise but did contend, by reference to s 23(1) of the 2002 Act:- "The plaintiff's conduct was such as demonstrated by exhibit H1, demonstrates that he presented a danger to a person because of his conduct. In relation to (b), that could be used to assist a person to escape from lawful conduct, your Honour. We say your Honour would be satisfied that his conduct was sufficient to demonstrate the necessity to search him because of his level of resistance." [482] 1. The Plaintiff's argument is sound. Even if arrested for a breach of the peace, s 23(1) of the 2002 Act did not authorise a search. However for the reasons previously given, I am not satisfied that the Plaintiff was arrested for breach the peace and nor am I satisfied that he was arrested for an offence or under warrant. 2. Further the Plaintiff was not in lawful custody and it follows that s 24 of the 2002 Act also cannot be availed of to authorise the search. 3. In my view, the search being unauthorised, the tort of battery has been established. Fourth assault 1. The Plaintiff's Amended Statement of Claim alleged that:- "[38] The plaintiff while still handcuffed, was then forcibly pushed by Grime and /or Doring into the back of the police van. [39] As a consequence of Grime's and /or Doring's actions in paragraph 38 above, the plaintiff landed on his back causing further aggravation to the plaintiff's injuries. [40] Grime and Doring then drove the plaintiff around for approximately 20 minutes in the back of the police van. During this time, the plaintiff was not seated or restrained but rather slid and bumbed around the police van floor whilst handcuffed on his back, causing severe pain. [41] When the police stopped either Grime or Doring opened the door of the police van and told the plaintiff to get out. The plaintiff explained that he was unable to move due to his injuries. [42] At that point Grime or Doring grabbed the plaintiff's feet and pulled him feet-first from the van, causing further extreme pain to the plaintiff. [43] The actions of grime and Doring as described at paragraphs 39 to 42 above were intended to cause injury to the plaintiff." 1. In his Schedule of Issues the Plaintiff described the relevant acts a battery. [483] 2. The Defendant, in its Defence, admitted that the Plaintiff was assisted into the van by Constable Grime and Constable Doring [484] whilst still handcuffed. It further admitted that Constable Grime assisted the Plaintiff out of the back of the vehicle. [485] 3. In the circumstances of the Plaintiff's unlawful arrest his continued detention and handcuffing in the small police van was unlawful. The acts relied on were the pushing of the Plaintiff into the van and the pulling him out of the van. 4. The Plaintiff submitted that there could be no justification under s 230 of the 2002 Act for the force deployed by Constable Grime and Doring in pushing the Plaintiff into the back of the small police van and then pulling him out around the confines of Manly. 5. I am satisfied the Plaintiff has made out his claim. Conclusion on trespass 1. On the evidence I am satisfied that the First to Fourth Assault claims, more properly described as batteries, in the Plaintiff's submissions and Statements of Issues have been established. 2. The Plaintiff makes a claim for false imprisonment based on the deprivation of his liberty for an hour between approximately 12:00am and 1:00am. Based on the records provided, [486] I am satisfied that the time in all was approximately 40 minutes from the Shore Club to when he was released. 3. In Cleland v The Queen, Deane J stated:- "It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed." [487] 1. In Trobridge v Hardy, Fullagar J stated:- "The mere interference with the plaintiff's person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the defendant to justify, if he could, by reference to his office or otherwise." [488] 1. In view of my findings as to the circumstances of the Plaintiff's arrest as being unlawful it follows that the Plaintiff's consequent detention has not been justified and the tort of false imprisonment has been established. MALICIOUS PROSECUTION CLAIM Facts 1. On 3 December 2011, Constable Church's notebook had an entry at 00:10 am which recorded:- "Security asked male to leave after bar staff had identified him as being intoxicated." [489] 1. On 6 December 2011 at 12:34 pm, Constable O'Donnell made an entry on the COPS referrable to the attendance by the police at the Shore Club on 2 – 3 December 2011. In reference to the Plaintiff, the entry recorded:- "While at location, Police dealt with a fail to quit from the first level … " There was no mention made in that notation of any arrest or proposal to initiate proceedings against the Plaintiff. The narrative provided described in some detail the police activity and observations at the premises but little regarding the Plaintiff. [490] No explanation as to why any additional material could not be provided was recorded on that occasion. 1. SC Renshaw produced his notebook relevant to 3 December 2011. In that statement, particulars and a description of the Plaintiff are provided. The statement relevantly read:- "POI: was asked repeatedly to leave the premises by security bar staff and police due to his intoxication. POI refused the requests, was then escorted out by police when POI resisted LSC Church and CST Renshaw. POI has then elbowed LSC Church to the head. POI was then taken to the ground just inside the entry of the Shore Club. He was then handcuffed to the rear before being escorted outside. He continued to ask why he had to leave, and was informed on approximately 20 occasions, it was due to him being too intoxicated. He was then placed in the rear of a caged truck and taken to a bus stop at North Manly to prevent a breach of the peace." [491] 1. The entries in SC Renshaw's notebook after the date of the event records subsequent events in 2012, but then corrected to 2011. 2. No notation was made in that notebook of an intention to bring proceedings against the Plaintiff. 3. LSC Church recorded in his statement of 22 February 2012 that he advised the Plaintiff on 3 December 2011 that he was to be issued with a penalty notice, recounted as follows:- "… What I'm going to do is send you a ticket for remain on premises for failing to leave licensed premises. I will also give you a move on direction from the Manly CBD for the next six hours. And to prevent further breach of the peace I will get you dropped off to a bus stop at North Manly." [492] 1. Constable O'Donnell stated that in her conversation with the Plaintiff on 28 December 2011, it was reiterated to him that he was advised "on the night" that he would receive an infringement in the mail. [493] This was also recorded in her "contemporaneous" notebook entry of 28 December 2011. [494] 2. Acting Inspector Craig Huleatt was rostered as the Duty Officer from 6:00pm on 2 December 2011 to 6.30am the following morning. His evidence was that he attended the eastern footpath of South Steyne opposite the Shore Club Hotel at 12.20am after hearing a request on police radio for a caged vehicle to attend. Upon arriving, the Acting Inspector conversed with LSC Church, SC Renshaw and Constable O'Donnell. In his statement, Acting Inspector Huleatt stated:- "I spoke further with Leading Senior Constable Church in relation to what action was to be taken and he indicated that action would be taken against the male for failing to quit licensed premises. Asked if he proposed to take action for resisting police or any other offences Leading Senior Constable Church stated he felt the fail to quit was probably sufficient." [495] 1. Although Acting Inspector Huleatt does not explain when he "further spoke" to LSC Church regarding the action that would be taken it was not suggested in argument that it was on an occasion other than 3 December 2011 when he attended the eastern footpath of the location opposite the Shore Club at about 12.20 am. 2. LSC Church also stated that following the incident he informed Acting Inspector Huleatt and Sergeant Ellis. No statement has been provided from Sergeant Ellis. [496] LSC Church states that he informed the officers that the Plaintiff had been dropped off at a bus stop out of Manly to prevent a further breach of the peace. No mention was made in that context, to any prosecution action. [497] 3. On 13 December 2011, the Plaintiff had completed his report of serious police misconduct. [498] 4. On 16 December 2011, the Plaintiff attended the Manly Police Station and a statement was obtained from him. The Plaintiff's evidence was that he signed the first statement on 16 December 2011. On 20 and 24 December 2011 the Plaintiff sent emails [499] to Detective Senior Constable Tyrell to make some corrections to the statement, and an amended statement was signed on 27 December 2011. [500] 5. On 18 December 2011, the police obtained a statement from Mr Cheikho. [501] 6. On 19 December 2012, LSC Church completed a COPS entry which detailed the events as he recalled them on 2 – 3 December 2011. At the foot of that statement, it is recorded:- "(Event creation delayed due to industrial action. Event created at this time due to the nature of the incident)." [502] 1. In his statement, that is 22 February 2012, LSC Church states:- "On 19th December 2012, I commenced an event in relation to this incident and recorded it on the NSW Police COPS system. The delay in its creation was due to the current NSW Police Association industrial action, rostered days off and workload." [503] 1. LSC Church also stated:- "At this time, I consulted Licensing Staff within the Manly Local Area Command about the correct infringement to issue to THOMLINSON. I completed a ticket for 'fail to leave premises when required,' Infringement number: 4032730186 and posted it to THOMLINSON." [504] 1. Notwithstanding this LSC Church also indicated in his statement that he made a decision at the time not to arrest and charge the Plaintiff due to how busy licensed premises were, and the fact that he took pity on the Plaintiff due to his intoxication and his plea to go home to his wife and child as soon as possible. [505] 2. In summary, different explanations were given for the failure to record details of the incident or record of the fact that an infringement was to be issued to the Plaintiff before the making of the complaint on 13 December 2011. These included: "industrial action", "rostered days off", 'the nature of the incident" and "workload." As to not arresting and charging the Plaintiff, the reasons given included: "how busy the licensed premises were and "pity" towards the Plaintiff. All the explanations came from LSC Church and none from Constable O'Donnell who made the first COPS entry or SC Renshaw who made the notebook entry referred to. Nor do the COPS entries show any evidence of activity until after the date making of the complaint by the Plaintiff. The first activity was the obtaining of statement from Mr Cheikho. 3. On 20 December 2011, LSC Church sent a penalty infringement notice to the Plaintiff in the mail for an offence of "Failing to leave premises when required." [506] 4. The penalty notice stated that it was in relation to:- "Failed to leave licensed premises when requested by Security and Police in the Shore Club" [507] 1. The police copy provided the following description of the offence: "About 00.05 am on Saturday 3rd Dec 2011 Police witnessed security ask the POI to leave the 1st floor of the Shore Club Manly. The POI refused. LSC CHURCH and CST. O'DONNELL also requested the male leave the Shore Club however he refused. He was escorted from the Shore Club and arrested for Breach of the Peace. The POI was told on no less then 20 occasions why he was arrested and why he was arrested and why he had been asked to leave the location." [508] 1. Constable O'Donnell stated that she was contacted by Senior Constable Orrick who advised her that the offence code on the ticket was wrong. [509] She thereafter came to issue the substitute infringement. LSC Church's evidence was that he was similarly advised by the licensing staff at Manly Local Area Command. [510] 2. On 28 December 2011, Constable O'Donnell called the Plaintiff to revoke the penalty infringement notice issued by LSC Church because "it had been filled out incorrectly." [511] On 9 January 2012, the Plaintiff received a further updated infringement notice in the mail for the offence of "Excluded person failing to leave premises when required." [512] 3. In the description of the offence it stated:- "At the above date and time, the POI was refused service from the bar at the Shore Club Hotel which holds hotelier license [REDACTED] due to his intoxication. The POI was then asked to leave by security officer ALMIR where the POI refused. The POI was asked to leave by CST O'Donnell and then by L/SC Church where he said 'No'. L/SC Church and S/C Renshaw escorted the POI down the stairs while he continued to resist. He was eventually handcuffed and taken out of the hotel. Police observed the POI sway from side to side and to slur his words while continually say 'But why?'" 1. The Plaintiff did not pay this infringement notice but elected for the matter to be heard before a Court. [513] 2. Thereafter there are notes between 30 December 2011 and 5 January 2012 relating to seeking and obtaining video recordings from the Club referable to the matter. 3. Mr Richard Jeffery, solicitor, gave evidence that on or about 18 May 2012, SC Renshaw delivered a bundle of documents to him, being the documents in Exhibit F, in addition to the two infringement notices being Exhibits B and D, and CCTV footage of the incident obtained from the Shore Club, which was Exhibit H. [514] Those documents were subpoenaed in the proceedings before the Local Court of NSW, heard by Bradd LCM which was the subject of Exhibit G. 4. On 9 August 2012, the prosecutor sought leave of the Local Court to withdraw the infringement notice the subject of proceedings before him. Ingredients 1. The principles to be considered in a claim of malicious prosecution were stated by the High Court of Australia in A v State of New South Wales. [515] In that case, Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ stated:- "[1] … For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause." [516] Who was the prosecutor ? 1. The Defendant did not put in issue that the issuance of two infringement notices [517] and the subsequent Court Attendance Notice [518] were proceedings of the kind to which the tort applies. [519] 2. In terms of who was the prosecutor the Statement of Claim [520] identifies LSC Church and that it was him who had allegedly maliciously prosecuted the Plaintiff. [521] However infringement notice 4032730195 was issued under the name of Constable O'Donnell who was also identified as the prosecutor in the Court Attendance Notice. That notice replaced the infringement notice 4032730186 issued under the name of LSC Church in order to rectify a clerical error. [522] 3. In the transcript of the Local Court criminal proceedings of 8 August 2012, LSC Church conceded he was the informant in the matter and was involved in service of his statement on the Defence. [523] Nevertheless the Defendant argued that at law, LSC Church was not the prosecutor. Relying on answers given by Mr Jeffery when he was recalled by the Plaintiff, it was asserted that the Contents to the Brief of Evidence relating to the fail to quit charge were signed by Constable O'Donnell. [524] That document was marked for identification BF and was not tendered in the proceedings. [525] 4. In A v State of New South Wales, [526] the plurality stated: "[34] The identification of the appropriate defendant in a case of malicious prosecution is not always straightforward. 'To incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion." [527] 1. In Young v New South Wales, Young v Young (No 2), Adamson J held "[141] The question of who is a prosecutor is not limited to the informant. Anyone responsible for initiating the prosecutions can be relevantly regarded as a prosecutor: see Fleming, at [27.30] pages 696-697 …" [528] 1. The relevant principles relating to maintenance of a prosecution were set out by Macfarlan JA in State of New South Wales v Landini. [529] 2. In Sahade v Bischoff, Gleeson JA referred to Landini and stated at [121]:- "[121] … The common feature in the authorities is the requirement that the defendant take some positive conduct to maintain the prosecution, such as giving evidence in support of the prosecution, which was known to be false." [530] 1. In my view, the proceedings were initiated and maintained by LSC Church as the prosecutor. He determined the course to be pursued, issued the initial infringement which was replaced by the second notice for the reasons indicated. He determined the course that was followed and maintained it by giving evidence in the Local Court and accepting that he was the Informant. 2. It was not in issue that the proceedings were terminated in favour of the Plaintiff. The question of whether in instituting and maintaining the proceedings Church acted without reasonable and probable cause and maliciously remained in issue. [531] Setting for determining absence of reasonable and probable cause 1. In determining the setting in which the absence of reasonable and probable cause is to be assessed, the plurality in A stated:- "[39] The standard form of pleading alleges that the defendant acted (maliciously and) without reasonable and probable cause. A plaintiff who sets out to prove that allegation may, or may not, endeavour to establish, by direct evidence (including admissions), or inference, something about a defendant's belief. In a jury trial that may raise an issue for the jury. At a trial without a jury, that may raise for the judge's decision a specific question of fact. The nature of the question may depend upon what, in the circumstances of the case, is said to demonstrate that a defendant did not have reasonable and probable cause to prosecute. Those circumstances, in turn, may be affected by the nature of the allegations, and the prosecutor's capacity to form an opinion about their strength and reliability." [532] Principles for determining absence of reasonable and probable cause 1. In the inquiry as to absence of reasonable and probable cause and the nature of the belief that was relevant, the plurality in A stated:- "[58] … the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful. [59] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light." [533] 1. The plurality then summarised what it referred to as three critical points as follows:- "[77] There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion?" [534] 1. In noting the challenges presented where the prosecutor relies upon information supplied by third parties, the plurality in A stated:- "[80] In cases where the prosecutor acted on material provided by third parties, a relevant question in an action for malicious prosecution will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion. (There may also be a real and lively question about the objective sufficiency of the material, but that may be left to one side for the moment). In deciding the subjective question, the various checks and balances for which the processes of the criminal law provide are important. In particular, if the prosecutor was shown to be of the view that the charge would likely fail at committal, or would likely be abandoned by the Director of Public Prosecutions, if or when that officer became involved in the prosecution, absence of reasonable and probable cause would be demonstrated. But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established. [81] The expression "proper case for prosecution" is not susceptible of exhaustive definition without obscuring the importance of the burden of proving the absence of reasonable and probable cause, and the variety of factual and forensic circumstances in which the questions may arise. For the reasons given earlier, it will require examination of the prosecutor's state of persuasion about the material considered by the prosecutor. That should not be done by treating the five conditions stated by Jordan CJ in Mitchell v John Heine as a complete and exhaustive catalogue of what will constitute reasonable and probable cause. First, to focus upon what is reasonable and probable cause distracts attention from what it is that the plaintiff must establish - the absence of reasonable and probable cause. And secondly, because those conditions are framed in terms of belief about probable guilt, they are conditions that, for the reasons already given, do not sufficiently encompass cases where the prosecutor acts upon information provided by others." [535] 1. Then referring to the objective aspect of reasonable and probable cause, the plurality stated:- "[82] It is convenient to deal at this point with the objective aspect of an allegation of absence of reasonable and probable cause. As Dixon J said in Brain, if there is no dispute that a prosecutor "believed in the truth of the charge, or considered its truth so likely that a prosecution ought to take place" and no question arises as to the materials upon which the opinion was founded, there remains the question, for the Court to decide, "whether the grounds which actuated [the prosecutor] suffice to constitute reasonable and probable cause." [83] Reference is sometimes made in this context to the statement of Hawkins J in Hicks v Faulkner defining reasonable and probable cause: "to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed." The objective element of the absence of reasonable and probable cause is thus sometimes couched in terms of the "ordinarily prudent and cautious man, placed in the position of the accuser" or explained by reference to "evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution". Or, as Griffith CJ put it in Crowley v Glissan, the question can be said to be "whether a reasonable man might draw the inference, from the facts known to him, that the accused person was guilty". [84] None of these propositions (nor any other equivalent proposition which might be formulated to describe the objective aspect of absence of reasonable and probable cause) readily admits of further definition. It is plain that the appeal is to an objective standard of sufficiency. The references to "reasonable" and "reasonably", to "ordinarily prudent and cautious", make that clear. [85] Because the question in any particular case is ultimately one of fact, little useful guidance is to be had from decisions in other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiry should have been made. [86] It is, nonetheless, important to recognise what, standing alone, may not suffice to show a want of objective sufficiency. It is clear that absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others it will very often be the case that some further inquiry could be made. Lister v Perryman, where a charge was preferred on account of what had been reported to the prosecutor, is a good example of such a case. And as Lord Atkin rightly said in Herniman v Smith: "It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution." [87] For like reasons it cannot be stated, as a general and inflexible rule, that a prosecutor acts without reasonable and probable cause in prosecuting a crime on the basis of only the uncorroborated statements of the person alleged to be the victim of the accused's conduct. Even if at trial of the offence it would be expected that some form of corroboration warning would be given to the jury, the question of absence of reasonable and probable cause is not to be decided according to such a rule. The objective sufficiency of the material considered by the prosecutor must be assessed in light of all of the facts of the particular case." [536] 1. The test for determining whether the subjective element of absence of reasonable and probable cause has been established is whether the prosecutor has been shown to not have honestly concluded that the material was such as to warrant setting the criminal law in motion. 2. Gyles AJA in Thomas v State of New South Wales observed that this involved a lesser subjective standard than a belief in guilt. [537] In considering the objective element his Honour stated:- "[104] The reasonableness of the belief then comes into play. Was the trial judge in error in finding that the appellant had not established that there was not a reasonable basis for the belief in guilt, or, as that might now be reframed, a reasonable basis for setting the processes of the criminal law in motion? That requires an identification of the material properly to be taken into account on that issue. There is a question as to whether that material is limited to that which is admissible in evidence at trial and limited to that which will certainly be available at trial. [105] The material to be considered cannot be limited to that which is admissible in evidence. A reasonable basis for a decision by an investigating police officer to lay a charge is not to be equated with a magistrate's decision as to committal for trial or a trial judge's ruling on whether there is a case to go to the jury. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law. Neither is it necessary that the prosecutor be assured that all necessary witnesses will attend the hearing and give evidence in accordance with the information provided by them. The prosecutor may not be a public official. The decision to charge will often be taken promptly, if not immediately, in all kinds of circumstances. Investigations can be expected to continue where necessary, at least up to preparation of the brief of evidence for committal. That is not to suggest that these topics are not properly to be considered under this head. A practical assessment is required. Situations vary so much that it is not helpful to endeavour to lay down strict ground rules. (See Lister v Perryman (1870) LR 4 HL 521 per Lord Westbury at 538, Lord Colonsay at 540 and 542; Hicks v Faulkner (1878) 8 QBD 167 at 173-4; Birchmeier v Council of Municipality of Rockdale (1934) 51 WN (NSW) 201 at 202-3; Mitchell v John Heine & Son Ltd [1938] NSWStRp 33; (1938) 38 SR (NSW) 466 at 469-471)." The Plaintiff's concession as to prima facie case 1. The Plaintiff's solicitor Mr Jeffery conceded that during the prosecution proceedings before the Local Court, a concession was made on behalf of the Plaintiff "that on the papers that were served there appeared to be a prima facie case." [538] 2. Counsel for the Defendant asserted that the significance of that concession went to the question of absence of reasonable and probable cause. Counsel for the Defendant asserted that this constituted an admission that there was a case to answer. [539] 3. Counsel for the Plaintiff asserted that the concession made was that on the papers that were served there appeared to be a prima facie case. [540] 4. For reasons earlier referred to in the judgment of Gyles AJA in Thomas v State of New South Wales, the Defendant's contention has no substance. Plainly, the question of absence of reasonable and probable cause does not fall to be determined on an opinion of Counsel based on papers. Nor does it constitute any admission for the purposes of these proceedings. What does the Plaintiff say? 1. In written submissions, the Plaintiff asserted that:- "[104] … Officer Church carried out these acts as an informant who had made a knowingly false statement to justify an otherwise groundless prosecution against person who he knew to be innocent. The court Attendance Notice in officer O'Donnell's name could not have been issued in the absence of her relying on this knowingly false information provided by Church." [541] 1. The facts pleaded as giving rise to an absence of reasonable cause were broadly set out in the Amended Statement of Claim. [542] Whilst the particulars raise issue with a number of events that transpired on 3 December 2011 the critical issues were whether the Plaintiff was identified as intoxicated and consequently requested to leave the premises and his refusal to do so. 2. The Plaintiff in submissions drew attention to aspects of the evidence where it asserts that LSC Church lied, being:- 1. The contention that there was a fall at the bottom of the stairs; [543] and 2. That LSC Church was approached by one of the security guards and was told the Plaintiff had "been asked to leave because he is intoxicated." [544] 1. I have rejected LSC Church's evidence as to a fall at the bottom of the stairs and regarding the incident where the Plaintiff was on the ground and the subject of an assault. However this does not directly relate to evidence of the Plaintiff committing an offence under s 77 (5) of the 2007 Act. 2. By contrast, the question of what LSC Church was advised by one of the security guards does relate to the offence in question. 3. In relation to other aspects of the evidence the Plaintiff's submission asserted that the version of the relevant police officers should not be accepted in preference to other evidence. [545] 4. The Defendant contended that the Plaintiff must prove that there was an absence of information available to LSC Church for him to form a reasonable belief in the charge of fail to quit pursuant to s 77(5) of the 2007 Act. It contended that the Plaintiff has failed to prove what was available to LSC Church at the time that he brought the proceedings. It acknowledged that even if LSC Church assembled a brief, there was no evidence as to what was in it when the contents were available to him and what could it would have been made of the documents. In any event, the Defendant argued that if Exhibit F was available, there was evidence to prove the charge. 5. The evidence that would have been available at the time the first penalty notice was issued include the observations of LSC Church, the statement of Mr Cheikho, LSC Church's own notebook entries and SC Renshaw's notebook entries. 6. In the first penalty notice, no mention is made of the Plaintiff being intoxicated or the basis on which police directed him to leave the premises. On 18 December 2011, statements were obtained from Mr Cheikho and Mr Almir who failed to identify the Plaintiff as being intoxicated but rather, described him as being rude and non-responsive. 7. The second COPS entry recorded that LSC Church asked security "Is everything OK?" and a security guard replying "This male has been asked to leave because he is intoxicated." This cannot be accepted as he was not assessed as intoxicated by Mr Cheikho or by Mr Almir. As stated earlier Mr Almir was seeking to move the Plaintiff to another level to assess him. Bearing in mind s 140 of the Evidence Act 1995 (NSW) however, I cannot form the view that LSC Church lied based on a rejection of his evidence and the time occupied by any conversation. An honest and reasonable mistake made by LSC Church cannot be excluded particularly in light of the evidence of the noise prevalent at the time. 8. The claim that the Plaintiff was refused service by bar staff was wrong. After apprehending the Plaintiff both LSC Church and (according to her evidence) Constable O'Donnell went to ascertain the name of the staff member who had refused the Plaintiff service. [546] Assuming this occurred, it would have been apparent at that point from the notation in LSC Church's notebook that Mr Almir had not identified the Plaintiff as intoxicated but "bar staff" were said to have made this identification. [547] However the refusal of service is not recorded in the second COPS entry. Although it is recorded in the second penalty notice issued by Constable O'Donnell, there is no evidence that LSC Church saw it happen. 9. Further, I cannot accept, for the same reasons, LSC Church's statement that he observed a member of staff, being a Mr Mahmoud Mahmoud having a conversation with the Plaintiff, who then ended the conversation and walked directly to the security guard monitoring the entrance, or the observation that the Plaintiff was standing in the same position swaying from side to side. 10. SC Renshaw's statement that the Plaintiff was swaying at the southern end of the bar was an observation not recorded in his notebook and for reasons given I do not accept they were made. Nor is there evidence they were passed on when the prosecution action was commenced 11. There is no evidence of Constable O'Donnell's asserted observations being passed on, but in any event, for the reasons given, I am not satisfied that they were in fact made. 12. The Defendant's submission was as follows:- "According to LSC Church's statement (which is Exhibit F148 – F154), the plaintiff was intoxicated. According to the statements of Yousef Cheihko and Mahmoud Almir, the plaintiff was quarrelsome (in that he was argumentative). Though they said that they though the plaintiff was not intoxicated, Cheikho was told by bar staff to remove the plaintiff because he was intoxicated. Opinions about intoxication may differ, and the fact that the security guards had a different opinion to the Police and the bar staff is of little moment. Their evidence of the plaintiff's argumentative and stubborn resistance to leaving (and his unresponsiveness at times) is consistent with the plaintiff being intoxicated, even if he did not smell of liquor. Only the plaintiff denies being intoxicated or quarrelsome. Whether the court accepts the Police officers or the security guards (or indeed both), the plaintiff was by all accounts either intoxicated or quarrelsome. That being so, either the security guards or the Police officers were entitled to ask him to leave The Shore Club. Plainly, there was reasonable and probable cause for issuing the plaintiff with penalty notice." [548] 1. Neither LSC Church or any other officer was called to give oral evidence. 2. I am not satisfied that the Plaintiff was identified by LSC Church as being intoxicated within the terms of s 5(1) of the 2007 Act nor that he made any observation or received information that allowed him to reasonably form such a view. In my view, LSC Church saw a situation and surmised that the Plaintiff had been identified as intoxicated and refused to leave the premises without satisfying himself of the fact and the basis for exercising the powers reposed in him. 3. There is no evidence that he had any other material relied upon at the time at the time proceedings were commenced beyond those referred to. 4. For reasons previously discussed there is no evidence that LSC Constable Church or any other officer would have exercised the power under s 77(2) of the 2007 Act on any ground other that intoxication. On the evidence available as at 20 December 2011, I am satisfied that the Plaintiff has established an absence of reasonable and probable cause. 5. Prior to the commencement of the issuance of the second penalty notice two further statements were obtained being those of Mr Sagoa on 23 December 2011 and Ms McKirgan on 24 December 2011. Both the statements confirmed that the Plaintiff had to be forcibly removed from the Shore Club. Mr Sagoa stated that he spoke to Mr Cheikho who said to him that he was not intoxicated but "didn't get the full story." He stated that Mr Almir's view was that he was intoxicated and completed the incident register on the basis of what the two guards had told him. Whatever belief Mr Sagoa had as to what Mr Almir had told him, LSC Church and Constable O'Donnell would have been aware of Mr Almir's position based on the fact that after the incident both approached him and were advised that the source of the information was "bar staff." Neither officer recorded Mr Almir as forming a view that the Plaintiff was intoxicated and on the evidence I am satisfied this is so. 6. For the reasons given, the second penalty notice was wrong in asserting the Plaintiff was refused service and the observations of Constable O'Donnell cannot be accepted. 7. In all, I am satisfied that the Plaintiff has established an absence of reasonable and probable cause at the time both penalty notices were issued and the proceedings were maintained in the circumstances outlined. Malice 1. As to the question of malice, the Plaintiff's submission was a s follows: "[106] As to the element of maliciousness (element (c)), the evidence proves on the balance of probabilities that the intention of officer Church in issuing the first penalty notice was not the proper invocation of the criminal law, but to ward off the complaint made against him by the Plaintiff on 13 December 2011. The lies told by Church in his statement serve the purpose of perpetuating his malice in the prosecution of the Plaintiff. Throughout the entire prosecution, officer Church accordingly performed the role of prosecutor for a purpose other than the proper invocation of the criminal law (A v NSW (supra) at [55])." [549] 1. The Plaintiff did not plead any other motive although it did refer to alleged lies told by LSC Church. Although the pleadings also referred to asserted fabrication of other officers, this was not part of the Plaintiff's submissions on the question of malice by LSC Church. 2. There was evidence from the Plaintiff that following making of his complaint Inspector Cope was provided that names of some of the employees at the Shore Club to conduct an investigation. [550] However there was no evidence of any communication between Inspector Cope and LSC Church or Constable O'Donnell as to the complaint made by the Plaintiff prior to the issuance of either penalty notice. Whilst it was asserted in the Further Amended Statement of Claim that the Plaintiff was informed by Inspector Cope of Manly Police on 18 December 2011 that he might be issued with a penalty notice [551] that allegation was not admitted by the Defendant. [552] Nor was it established by the Plaintiff or in any tendered records. 3. If the motive of vengeance can be established then that is a proper basis for establishing malice. [553] However there is no evidence that the penalty notice was issued to ward off the complaint nor was any such an allegation pleaded as it was required to be. Nor did the Plaintiff draw attention to any facts from which an inference to this effect could be drawn. 4. To the contrary whilst the first COPS entry was limited, LSC Church did obtain Mr Almir's details and SC Renshaw prepared a notebook entry and recorded the Plaintiff's details. Acting Inspector Huleatt was advised of the course LSC Church proposed to take. Whilst there is no recording on 3 December 2011 that an infringement notice was to be issued, I am satisfied that that was the ultimate purpose and intention at the time of obtaining that information and I accept that Acting Inspector Huleatt was informed accordingly. It follows that I accept that the Plaintiff was informed that a penalty notice would be issued on the evening in question. 5. The difficulty of relying on an absence of reasonable and probable cause to establish malice was referred to by the plurality in A where it was stated:- "[90] No little difficulty arises, however, if attempts are made to relate what will suffice to prove malice to what will suffice to demonstrate absence of reasonable and probable cause. In particular, attempts to reduce that relationship to an aphorism - like, absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause - may very well mislead. Proof of particular facts may supply evidence of both elements. For example, if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause. No universal rule relating proof of the separate elements can or should be stated. [91] What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor. [92] Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant and to stop a civil action brought by the accused against the prosecutor. But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose. And as with absence of reasonable and probable cause, to attempt to identify exhaustively when the processes of the criminal law may properly be invoked (beyond the general proposition that they should be invoked with reasonable and probable cause) would direct attention away from what it is that the plaintiff has to prove in order to establish malice in an action for malicious prosecution - a purpose other than a proper purpose. [93] Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. Secondly, the reference to "purposes other than a proper purpose" might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with the principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law (emphasis supplied)." [554] 1. In State of New South Wales v Beck, Ward JA stated in relation to findings of fabrication made in first instance in that case:- "[71] It is not disputed that such findings were very serious. There is no doubt (and this was not disputed by Mr Cleary) that his Honour was required, before making findings of criminal conduct on the part of the police officers, to approach the determination of such matters with 'much care and caution, weight being given to the presumption of innocence and exactness of proof expected' (Briginshaw at 347), and to have an actual persuasion, on the balance of probabilities, of the relevant matters giving rise to such a conclusion." [555] 1. Her Honour went on to state that "the giving of inconsistent or contradictory accounts does not of itself necessarily bespeak of fabrication" [556] and there may be an innocent explanation for the fact that the evidence in the police statements were contradicted. [557] Her Honour earlier gave as an example an honest and reasonable mistake. [558] 2. I have earlier referred to the fact that a number of the observations at the Shore Club asserted to have been made by LSC Church in relation to the Plaintiff could not have been made. I referred to the fact that they were in many instances not the subject of cross-examination of the Plaintiff and LSC Church was not called to give evidence. However it was neither pleaded nor submitted that these were instances of LSC Church fabricating. [559] 3. In the areas the subject of the Plaintiff's submissions, I have not accepted the evidence of LSC Church in a number of critical respects and made an adverse credit finding in relation to some his evidence subsequent to the first assault. 4. However the areas where the Plaintiff alleged fabrication arose, were areas where I have preferred not to accept his evidence. 5. It follows I am unable to be satisfied that the relevant evidence has been fabricated bearing in mind the provisions of s 140 of the Evidence Act 1995 (NSW). 6. It follows I am unable to find that the Plaintiff has established that the dominant purpose of the prosecutor was other than the proper invocation of the criminal law. Conclusion as to malicious prosecution 1. The Plaintiff having not established malice, the claim for malicious prosecution must fail. DAMAGES Plaintiff's evidence 1. The Plaintiff's evidence was that the injuries he has sustained have had a "massive effect" on his interaction with his children. At the time of these events his eldest child was eight months and his youngest was not yet born. He stated that he struggled at the time and still does when he has to pick his children up and lift them into the car. He stated that he was not able to jump on a trampoline and run around on the beach. He added that fatherly – son activities that involve playing with kids was difficult and had a major effect on him. [560] 2. The Plaintiff stated that he felt traumatised, suffered from anxiety, many sleepless nights not just through physical pain but flashbacks to the event. He stated that he gets angry and emotional when he sees police and the incident affected his belief and trust in the police. [561] 3. As a consequence of his injuries he maintained that he had a sitting intolerance for extended periods. He stated that he could sit for ten to fifteen minutes maximum, before he had to get up and stretch move around. According to his evidence the pain could be aggravated by picking up something heavy, twisting and even getting dressed in the morning or getting out of bed. He stated that lifting suitcases into the car when they went on holiday set the pain off and the whole holiday was ruined. [562] 4. The Plaintiff had a keen interest in music and had played guitar in a band since he was fifteen. Since the events in question, he stated that the amount of time he spends has been reduced but he still plays in a band. He stated that he moved his heavy band items into a storage unit in a studio so he does not have to cart them around. Further he stated that he had reduced the size of his amplifier stack so he does not have to lift as much weight. He stated that when playing with the guitar on his back standing "it's not too bad" because he is standing up and it was the lifting of the gear and taking it home at the end of the night that caused him pain. [563] 5. The Plaintiff stated that he was previously engaged in running, surfing, cycling, mountain biking, snow skiing, snowboarding, and gym activities such as cross-fit training, boxercise and pilates. He described himself as being very active, cycling 350 kilometres in a typical week but was now cycling once or twice a week for 10 to 20 kilometres. [564] 6. In cross-examination, the Plaintiff was tested about a number of activities by reference to photographs taken from his wife's Facebook postings. [565] The photos were posted subsequent to the events in question although it is not clear at least whether some were all taken after before or afterwards. They include depictions of the Plaintiff apparently enjoying himself and playing with his children, playing guitar, gardening, bending over, at home working on a computer, carrying and lifting his children, walking with a children near the beach, posing for a photo with a dual pram and jumping into a pool, riding a bike, skiing and on a chair lift. 7. The Plaintiff stated that in months following the incident he had difficulty mowing the lawn and lifting his child. He stated that he had a gardener and neighbour assist him because he could do it himself without difficulty. [566] 8. He stated that photos of him mowing the lawn and holding his child on this back posted in April 2012 were probably before the incident. [567] In relation to bike riding the Plaintiff stated that he had two bikes being a hybrid and a mountain bike but no longer used the latter. [568] The hybrid was a mountain bike that he had adapted to ride on the road and he use to use to ride to work. [569] He stated that the mountain bike had dual suspension and it did not jar his back going over bumps. He conceded purchasing it following the incident. [570] He conceded riding a mountain bike down a fire trail that he described as being "not particularly rough." [571] 9. The Plaintiff recorded himself riding his mountain bike in September 2013 and uploading videos on Youtube. [572] He conceded that he had done so less than ten times and stated the trails were not particularly bumpy. [573] He said that the trail was pretty smooth, and that he did it once and regretted it. [574] He further conceded being on the bike upright. [575] 10. So far as the frequency of his bike riding was concerned, the Plaintiff conceded that this had reduced to some extent because of his obligations as a father. However he stated that it was something he was determined to pursue as there were many sacrifices that he had made as a result and cycling was something that he pushed himself as hard as he could to maintain. Nevertheless he had to accept that he could not do it like he used to [576] although he persists in using the hybrid bike which places him in a vertical position. [577] 11. Another Youtube video was shown of the Plaintiff surfing in October 2014 in Hawaii. He stated that he was in pain when doing so but continued nonetheless. He stated that:- "… the water is actually with respect, pretty good for my back, it's not an impact and the paddling motion is a bit of a double edged sword, it helps me try and build some strength in my back again, but, it also can cause pain too. It's not, it's low impact." [578] 1. He maintained that the video had been slowed down to half speed and it was only a very small clip showing him surfing a very small wave for a very short period. [579] The Plaintiff maintained that he was doing everything he could to get his life back in order and rehabilitate himself. He stated that he was taking medication and it was enabling him to do very limited things that he used to do very well at extreme levels. [580] 2. The Plaintiff's evidence had earlier been was that up until he undertook the ADAPT programme he was taking the medication Tramadol but if he had a bad flare up he would take Endone as well. [581] He conceded that he took the medication whilst using his bike and surfing. [582] 3. The Plaintiff also gave evidence of participating on a Harley Davidson Fat Boy ride around Maui in October 2014 but stated that this was on tarmac. [583] 4. The Plaintiff was also the subject of surveillance recording. [584] By agreement the parties accepted that I would only take notice of such vision as was exhibited in Court. [585] 5. The recording of 25 March 2016 showed the Plaintiff lifting children's bikes out of the vehicle bending over pedals. The Plaintiff stated that it also showed him kneeling. However he did bend with his backpack to assist his son riding a bike. He reiterated that bending caused pain. The recording also showed the Plaintiff walking with what he described as a light surfboard in his hand. [586] Various surfing manoeuvres were also depicted including paddling and being upright and falling. The Plaintiff maintained he was more restricted in surfing compared to previously. [587] The Plaintiff maintained that his injury had impeded his ability to surf. [588] 6. The Plaintiff was asked questions about lifting a surfboard on 27 March 2016 and stated that he had a few surfboards and they were "all light." [589] 7. The recording of 28 March 2016 showed the Plaintiff standing in his garage and walking towards the bus stop. It was unremarkable. The Plaintiff accepted that on that day he had loaded children's toys to take to Lifeline in Dee Why. [590] He conceded putting cardboard on the roof and strapping it down. He stated that he stood on the wall of the car to minimise overexertion and "make it easier" for himself. [591] 8. The recording of 13 February 2015 showed the Plaintiff setting up and playing in his band at a venue known as the Foxhole. It showed him lifting a bag he described as "not heavy" and a speaker that he also said was not heavy. [592] It also showed him bending down, moving equipment, walking kneeling and squatting. The Plaintiff maintained that he did have difficulty with bending down and lifting things that are heavy and required any load or strain. [593] 9. In relation to a suggestion that on 17 January 2015 he moved two green lidded garbage bins, the Plaintiff conceded that he has moved them but stated that the difficulty depended if they were full or not. [594] 10. He denied that on 31 January 2015 he was running along Collaroy Beach to the south end with a surfboard in his hand, maintaining that he cannot run. [595] Medical evidence 1. The Plaintiff was taken to Mona Vale Hospital on 4 December 2011 at 6:00 am by his wife. Although the notes from Mona Vale Hospital were not tendered, they were presented by the Plaintiff to Dr Silberstein who referred to them, in a report of 4 January 2012. [596] Dr Silberstein recorded:- "He brought records from the Mona Vale Hospital. These records include reference to a possible fractured rib which could not be proven radiologically at the time. He described the incident that had occurred on December 2nd, 2011 which was described as having included being forcibly thrown to the ground, then being handcuffed, and being kneed in the lower thoracic spine area whilst still lying prone on the ground. He described having felt a crack in his lower spine that occurred during this incident." [597] 1. According to the Plaintiff's chronology, he attended Mona Vale Hospital for a second time, where he underwent further tests. He recorded being told by hospital staff that the spinal x-ray reports suggested that he had a compressed vertebrae. He asserted that he was referred for a full abdominal ultrasound to be performed at a clinic in Dee Why on the same day. [598] 2. Dr Silberstein was a general practitioner who the Plaintiff consulted close to his work some four or five times following the injury. [599] The Plaintiff also saw his family general practitioner, Dr Zeleny, ten times. [600] 3. He was referred to Central Imaging on 9 December 2011 for the purposes of a CT scan. [601] It appears that the Plaintiff went to the Royal North Shore Hospital after the second visit to Mona Vale Hospital and the rheumatology registrar assessed him, where he underwent a CT scan of his lumbar spine. This apparently demonstrated a fracture of the left twelfth rib, with minimal displacement with no fracture of the vertebral body. [602] 4. On 13 December 2011, the Plaintiff was referred for the purposes of an MRI scan, which appears to have been carried out on 14 December 2011. [603] Reporting on the scan, Dr Phil Lucas states:- "Scheuermann's changes in the thoracic spine with wedging of vertebral bodies and increased kyphosis and end plate changes." [604] 1. The Plaintiff was subsequently reviewed on 22 December 2011 by Dr Seah at Royal North Shore Hospital, who ordered a CT scan of the lumbar spine. This revealed a fracture of the twelfth (lowest) rib on the left side, and posterior aspect (which is to say, adjacent to the spine). Dr Silberstein noted that the fracture was acute and highly likely to have occurred at the time of the incident on 2 December 2011. [605] He recorded the Plaintiff as having no known history of any spinal condition and furthermore, that he maintained an excellent level of fitness. [606] Dr Silberstein concluded:- "Mr Thomlinson now has significant low thoracic pain and stiffness. He does not give any history of these symptoms prior to this incident. He is stiff, finds it difficult to stand from a seating position, cannot currently lift his eight month old child and similarly other activities are affected. Mr Thomlinson has undergone a range of investigations that have included pain X-rays, Computerised Tomography scanning and finally Magnetic Resonance Scanning. The outcome of these tests is that there is a developmental variation in the bones of the thoracic spine known as Scheuermann's Disease, but the fracture that was felt to be present on the initial X-ray was not confirmed. Scheuermann's Disease arises in teenage and is not relevant to his current injury. Mr Thomlinson's injury is acute soft tissue injury and sprain to the lower thoracic spine; and a fracture of the neck of the left twelfth rib." [607] 1. The Plaintiff saw Dr Carr, rheumatologist, on 25 January 2012. Although Dr Carr's first report is dated 16 January 2012, this appears to be an error. [608] Dr Carr arranged for a nuclear medicine bone scan, with limited SPECT CT, which was performed on 19 January 2012. He diagnosed the Plaintiff as sustaining fractures of the "left 11th and 12th ribs, due directly to the police assault, when he was kneed on the left side of his thoracolumbar junction, by a police officer on 2/12/2011." [609] He also diagnosed the Plaintiff as having sustained "soft tissue injuries at the thoracolumbar junction" and noted that the Plaintiff had an "underlying asymptomatic Scheuermann's disease" and suspected that "the forceful injury ha[d] aggravated this disorder and rendered it symptomatic, and that could cause long term sequelae." [610] 2. On 21 January 2012, Dr Carr placed the Plaintiff on Endep at 8:00pm, and strong analgesics in the form of Endone 5mg (oxycodone) as needed, noting that Panadine Forte was not helping at that stage. It was also noted that the Plaintiff was seeing physiotherapist. [611] 3. On 8 February 2012, the Plaintiff was still suffering from a sharp localised left sided T12 pain, but had bilateral thoracolumbar junction pain from about T8 to S1, aggravated by sitting when driving. Dr Carr records that the Plaintiff advised him that Endone only lasted about three hours, and thereafter, moved him across to Durotram XR 200, which was a strong analgesic drug. Dr Carr stated:- "The injury sustained by Mr Thomlinson unfortunately have aggravated his previously asymptomatic thoracolumbar Scheuermann's disease and this may result in prolonged pain for this man over the next couple of years. His only treatment for this will be strengthening exercises, but not surgery." [612] Dr Carr also stated that Mr Thomlinson needed pain management, regular physiotherapy and gradual increase in pool therapy, swimming and walking in the pool. [613] 1. In a letter dated 26 August 2013 to the Plaintiff's solicitors, Dr Carr stated:- "… Thomlinson is still in trouble with his thoracolumbar junction pain, still easily aggravated by bending, twisting and lifting. He has been trying to reduce his analgesia and he finds that if he gets his dose of Durotram down to the XR 100, he still suffers pain on mechanical activities. When he tried to get off the Durotram he of course developed the side effects of withdrawal …" [614] Dr Carr noted that the Plaintiff was seeing a psychologist and had recently attended the North Shore Private Hospital Pain Management Program with Dr Charles Brooker. He noted that it had been suggested that the Plaintiff attend the ADAPT program, which was expensive, but felt that due to the overlying depression and anxiety induced by his pain and the court case, that this would be a useful experience. [615] 1. In conclusion, Dr Carr prescribed Tramal 50s, to try and get the Plaintiff off analgesia by the end of the month. Dr Carr concluded:- "There is a burning quality to this pain as well and Charles Brooker might like to consider some Lyrica as an alternate antineuropathic drug, but basically he really does need to live with his chronic pain now and the ADAPT program is very useful in helping patients to learn to live with their pain." [616] 1. In a report dated 3 February 2016 addressed to Dr Zeleny, [617] Dr Carr stated that he had last seen Mr Thomlinson on 26 August 2013 for his chronic backache. He noted that the Plaintiff had been managing his back pain with Durotram XR 200, exercises, cycling and swimming. It was also noted that the Plaintiff had completed the ADAPT program, which allowed him to reduce his medication, continue to cycle, but did not affect his baseline constant thoracolumbar junction pain. He noted that the Plaintiff suffered from regular flare ups of the thoracolumbar junction pain associated with spasms down both sides of his thoracolumbar spine from about T10 down to L3 which was quite visible. He noted that the flare ups would occur with simple activities, such as putting weight on his spine leaning forward, putting an article or object into the rear of his car or picking up a child. He noted that the spasms could last several days and he "just has to lay down." [618] 2. Dr Carr noted that the Plaintiff continued to cycle "a couple of times a week" as he found that it "loosen[ed] him up a little bit with the posture in the cycling position more adaptable for his spinal problem than the erect posture." He noted that the sitting posture was the "worst of the postures" and the most he could sit down for, was about 10 to 15 minutes before changing work position. [619] Dr Carr recommended that the Plaintiff return to Durotram 100 or 200s for "a couple of weeks" and then use it intermittently. He noted that the Plaintiff had young children, with the younger one requiring lifting and that aggravated his back. He also noted that the Plaintiff had lost about 2 weeks of work in the last 12 months due to the flare ups in his back. He recommended an updated MRI scan to ensure that the Plaintiff had not damaged his spine further, but noted that the number of flare ups of severe spinal pain would be as often as once a month, with each episode lasting for at least seven days. In conclusion, Dr Carr records that the Plaintiff's physical activities at home, work and during simple sporting activity will remain and continue to be impaired indefinitely. [620] 3. In the accompanying report to the Plaintiff's solicitors dated 3 February 2016, Dr Carr noted the Plaintiff's difficulties in his employment, particularly when sitting at work for long periods and noted a change in posture provides temporary pain relief. It also noted that the Plaintiff had taken short periods off work over the previous 12 months because of acute exacerbations of pain. So far as pain levels were concerned, he recorded that these are in the order of 3 out of 10, with 10 being the most severe. He recorded the Plaintiff as suffering this throughout the day and often at night, however, it was regular flares of pain that he was now suffering. He noted that pain could come on with simple activities and the regular aggravation of pain episodes has not settled since he was assaulted. 4. A further MRI scan was ordered and this was the subject of a report dated 15 February 2016 by Dr Lyons. [621] Dr Lyons concludes:- "Findings of longstanding Schmorl's nodes with no evidence to suggest any acute bone pathology or signs of acute disc protrusion. No cord or nerve root impingement was seen." [622] 1. The Plaintiff was seen at the request of the Defendant, by Dr Lloyd Hughes, orthopaedic surgeon, who reported on 12 March 2015 [623] and 21 March 2016. [624] Dr Hughes obtained a history of the Plaintiff complaining about thoracolumbar spinal pain, which he described as a "dull ache all the time." He noted that the symptoms were present every day and was worse when he was lifting anything, such as when he tried to lift his children. He recorded that the Plaintiff had no previous problem with his back, and whilst he had previously been very active, running regularly, bike riding and surfing, he was now only able to do some light swimming, but no longer surfed. 2. On examination, Dr Hughes recorded:- "Examination of his back revealed a normal lumbar lordosis and he was able to demonstrate a good range of lumbar spine movements being able to touch his toes on forward lumbar flexion without any tilt of the lumbar spine or spasm of the sacrospinalis muscles. Lateral lumbar flexion and extension were unrestricted and painless. Straight leg raising was full and painless on both sides and neurological examination of the lower limbs was normal. He pointed to the thoracolumbar region of his spine as the site of his symptoms and there was some subjective tenderness there. He demonstrated a full range of thoracic spine movements. Straight leg raising was full and painless on both sides and neurological examination of the lower limbs was normal." [625] 1. In a follow up report on 3 February 2016, Dr Carr referred to Dr Hughes' findings, and stated:- "These physical findings in terms of range of spinal movements are inconsistent with my physical examinations of Mr Thomlinson as his treating doctor since I first saw him on the 16/10/2012. Mr Thomlinson complained to me that at the time of the medical examination from Dr Hughes that he indeed was restricted in his spinal movements by pain and muscle spasm. Mr Thomlinson was confounded by Dr Hughes' findings of 'normal' spinal movements." [626] 1. Dr Hughes was challenged about this in cross-examination. He conceded that a doctor who saw a patient on a number of occasions and examined him, and prescribed medication, would be in a distinctly better position than he was, to give an opinion as to the patient's condition, bearing in mind that he had only seen the Plaintiff once. [627] He maintained however that the Plaintiff could touch his toes easily and stated that he was "quite surprised." [628] 2. He acknowledged being aware that the Plaintiff's condition was variable in that he had flare ups of acute pain from time to time, but stated that there was no evidence that he was suffering from one of those flare ups when he saw him on 3 March 2015. [629] The Plaintiff was called in reply and he denied being able to touch his toes at the examination conducted by Dr Hughes on 3 March 2015 and further denied that he did so "easily." [630] The Plaintiff was not cross-examined in relation to this evidence. 3. Dr Hughes concludes that the Plaintiff probably suffered a soft tissue injury to his thoracolumbar region resulting from being traumatised in that area by "kneeing from an assailant." He stated that any soft tissue injury should have resolved within a period of weeks and would not be causing continuing symptoms over three years later. [631] Dr Hughes specifically rejected the view of Dr Carr, that Scheuermann's disease in the thoracolumbar spine was the cause of the Plaintiff's symptoms, having been aggravated or rendered symptomatic by the injuries to his back. He stated that this was "not an opinion based on medical evidence or on the known progression of Scheuermann's disease which he described as an "adolescent developmental condition which could cause symptoms in adolescence but does not cause symptoms in adulthood." [632] Thereafter he concluded:- "Having excluded any soft tissue or adolescent Scheuermann's disease causing his present symptoms, the most likely diagnosis now is degenerative disc disease in the lumbar spine for which there is some evidence on the CT scan report dated 22 December 2011 which reports bulging degenerative discs in the lower lumbar region. In this case the condition is degenerative in nature and not caused by any trauma in the incident on 3 December 2011 and any aggravation of any underlying degenerative condition caused in that incident would have resolved within a few weeks or the most one to two months." 1. Being referred to a CT scan on 18 October 2010, Dr Hughes noted that he demonstrated pre-existing posterior disc bulging which was indicative of degenerative disc disease. Dr Hughes stated that the Plaintiff may have been experiencing pain and restriction of movement in his spine and the pre-existing condition could explain subsequent pain and restriction of movements. [633] 2. It is plain from Dr Hughes' second report of 21 March 2016 that he did not feel that the Plaintiff was pain free, but rather that the pain that he was experiencing was the product of degenerative disc disease. [634] He elaborated stating that:- "… if it is assumed that he did not suffer pre-existing pain prior to the incident at work on 3 December 2011, because of the degenerative disc present and pre-existed the incident, it is probable that the plaintiff's degenerative disc disease would have progressed in the absence of injury to the point where he would have experienced spinal pain in any event." [635] 1. However, as to the question of Scheuermann's disease, Dr Carr stated:- "It could be said that for a patient with Scheuermann's disease in which the thoracolumbar discs do not develop normally in childhood and adolescence, that such a condition would make it likely that such a violent kneeing injury with extension of the thoracolumbar spine would make it more likely to render the spine to be seriously injured by such an assault, than a person with a normal spine." [636] 1. Dr Carr concluded, stating:- "Mr Thomlinson's presentation to me has always been consistent with structural spinal injury and the rendering of his Scheuermann's disease. The failure of recovery has been clear cut in this man's case. His physical examination and his witness of pain and the activities on spinal movement that aggravate his pain are all consistent with aggravation of Scheuermann's disease and or degenerative disc disease secondary to Scheuermann's disorder and soft tissue thoracolumbar injury. I enclose a copy of the updated MRI report of 15/02/2016 of his thoracolumbar spine. It should be noted that minor disc bulge is evidence at T8/9 and T9/10 on this scan, whereas the earlier MRI thoracic spine of 14/12/2011 did not show significant disc bulge in these regions. The MRI scan of 14/12/2011 demonstrated the Scheuermann's changes of vertebral wedging and endplate irregularity but no disc bulge. I reviewed both sets of MRI scans and was impressed with the change that has developed in the intervening years since injury and though I cannot be certain that disc bulge is the source of this man's pain, I think it represents objective abnormality and change since the MRI scan of 14/12/2011." [637] 1. Dr Hughes on the other hand, in his last report, stated:- "… It is clear from the medical literature that Scheuermann's disease is not symptomatic in adulthood and pain only occurs during the adolescent growth period. It is clear from the medical literature that the only effect of Scheuermann's disease in adulthood is the residual kyphosis and not any pain or other symptoms. It is clear that Scheuermann's disease in adulthood is asymptomatic and cannot be therefore rendered symptomatic by any injury." [638] 1. In cross-examination, Dr Carr stated that in order to fracture a rib, you would need a "downward force with some momentum." [639] Dr Carr did not think that a person could generate this force by struggling. [640] Whilst he stated that nothing was impossible, [641] he believed that it was less probable, if not impossible to occur otherwise, if the rib was healthy. [642] 2. Dr Carr was cross-examined in relation to the question of whether the pain the Plaintiff was suffering arose from degenerative change or as a consequence of trauma and stated as follows:- "Q. It is almost impossible, isn't it, to say with certainty that any pain that Mr Thomlinson suffers arises from the incident rather than the degenerative condition that arises. Correct? A. Okay. That's totally wrong. It's absurd to think that people who had suffered trauma and have documented recurrent pain, muscle spasm for years and years that they suddenly got pain from wear and tear in their discs. So I mean it's just - it's a silly thing to say, if you have trauma and you develop pain and the pain goes beyond 12 weeks it's called chronic pain. So when I saw Charlie first up I thought, 'Well, this guy's pain he's probably had more than one rib fracture, he might have even fractured his transverse process. This is going to get better but I don't like the look of his spinal films of his Scheuermann's disease' and that's how it played out with him. Q. This isn't silly though, is it, that you can suffer pain from degenerative changes without any trauma? A. Well, the problem is that we all - 95% of people at 45 have degenerative changes in their spine. Q. That means, what, the answer is yes? A. That means you've got it." [643] 1. Dr Carr in cross-examination reiterated his view that Dr Hughes' suggestion that Scheuermann's disease did not cause symptoms in adulthood was a "silly statement." [644] Dr Carr said:- "… the natural history and long term follow up studies in adulthood, there are a few of them and the ones that we have from the original description suggest that you do get symptoms in adulthood. So I don't know where he's getting that from." [645] 1. Referring to the consultation that he had with the Plaintiff on 3 February 2016, Dr Carr noted that the current flare up was beginning to settle after six weeks, he stated that the Plaintiff could lift things to a limited degree, even with the spasms. [646] He stated "you have to do things to do life, so you do things" [647] but nevertheless, he said that within the six week period prior to the consultation he would have thought that the Plaintiff would have avoided it. [648] He stated that holding a guitar would exacerbate the Plaintiff's pain [649] and that the Plaintiff could cycle but not in an upright bike. He also did not think that the Plaintiff could jump on a surfboard. [650] Dr Carr stated when questioned about the Plaintiff's pain level and his ability to do these tasks, that they could be done, but he would advise against it. [651] 2. Dr Carr conceded that the effects of Endone would turn off the pain receptors to make the patient comfortable and to allow more physical activity. [652] Nevertheless, he stated that he would not be encouraging someone taking such medication to participate in the activities referred to, as it would be quite likely that they might suffer from mini-trauma. [653] 3. Dr Hughes was not given the opportunity to view the surveillance film of the Plaintiff, but nevertheless he was asked questions in cross-examination based on assumptions which were put to him by counsel for the Plaintiff. He stated:- "Q. Have you been provided with any surveillance footage of Mr Thomlinson taken on behalf of the defendant for the purpose of this hearing? A. No. Q. I ask you to make these assumptions. Firstly, that Mr Thomlinson was placed under surveillance secretly. That's the first assumption, all right? A. Yes. Q. Secondly I ask you to assume that he was unaware of such surveillance. Very well? A. Yes, yes. Q. Thirdly, I ask you to assume that when under surveillance he handled himself in a perfectly natural manner. A. Yes. Q. Fourthly, I ask you to assume that film was taken during the course of such surveillance, very well? A. What was the last question? Q. That I ask you to assume that film was taken during such surveillance. A. Yes. Q. And next I ask you to assume that the film footage which has been played to this Court showed Mr Thomlinson very largely either kneeling or squatting when handling objects at or close to ground level. A. Yes. Q. On the basis of those assumptions, you'd have doubt, would you not, as to whether he had at the time of the surveillance, a normal range of normal [sic] in his back? A. Yes." [654] 1. Dr Hughes confirmed that he was told that prior to the incident, in early December 2011, the Plaintiff had no difficulties with his back. It was then put specifically to him as follows:- "Q. If the complaints he made to you were present at all times up until his sole consultation with you, the likelihood is, do you agree, that the symptoms he described were due to trauma he suffered as described by him in early December 2011? A. They, they could have been related to the incident, yes." [655] 1. Dr Hughes is no longer a treating orthopaedic surgeon, having for the last 25 years carried out a practice with the ASSESS Medical Group involving assessing persons who had been involved with accidents. [656] Dr Hughes last performed operative work in 1990. [657] 2. On the evidence before me, I am satisfied that the Plaintiff:- 1. Sustained fractures to his 11th and 12th rib as a direct consequence of being kneed to the left side of his thoracolumbar junction on 2 December 2011; 2. Sustained soft tissue injuries of the thoracolumbar junction as a result of the same assault; and 3. Had his underlying asymptomatic Scheuermann's disease aggravated by the forceful injury occasioned to him by police officer, rendering the disorder symptomatic over the longer term. 1. I accept Dr Carr's criticisms of Dr Hughes' position which failed to consider how the trauma encountered by the Plaintiff could lead to chronic pain syndrome. Dr Hughes' findings on examination that the Plaintiff "walked and moved normally without any apparent discomfort and moved his back normally and freely when getting on and off the examination couch" and further "demonstrated a full range of thoracic spine movements" [658] and him being "quite surprised" that the Plaintiff was able to touch his toes [659] was inconsistent with the examinations conducted by Dr Carr. This was further disputed by the Plaintiff in discussions with Dr Carr [660] and he disputed, that he touched his toes during Dr Hughes' examination. [661] 2. I do not accept Dr Hughes' view that Scheuermann's disease is not symptomatic in adulthood and that pain could only occur in the adolescent growth period for the reasons described by Dr Carr. Specifically, I accept Dr Carr's criticism that Dr Hughes had failed to consider the effects of trauma in relation to chronic pain syndrome. The Plaintiff did not have any pain in his back prior to the incident in December 2011 and ever since then, developed chronic back symptoms. I do not accept Dr Hughes' view that it is "possible [that] pre-existing disc disease in the lower lumbar spine may have been temporarily aggravated" in these circumstances. [662] I do not accept the Defendant's criticisms of Dr Carr as being "affectionate and familial" by his references to the Plaintiff as "Charlie." [663] This was not the subject of any questioning in cross-examination and I do not regard that as evidence suggesting anything other than a professional relationship. 3. The suggestion put by the Defendant that Dr Carr accepted that the Plaintiff's alleged pain could be caused by bulges to his discs and activities such as mountain biking that could cause mini-traumas, was not established on the evidence. Dr Carr's evidence was to the effect that he could not be certain that the disc bulge at T8/9 and T9/10 could be the source of his symptoms. [664] 4. Dr Carr comprehensively rejected Dr Hughes' opinion in relation to Scheuermann's disease not causing pain in adults. The criticism that he did not comment on Dr Hughes' evidence in relation to literature is rejected. Dr Hughes in his report did not identify the literature to which he referred to and nor was any such literature put in cross-examination of Dr Carr. [665] To the extent that Dr Carr sought to adduce literature in relation to the question of patients suffering from Scheuermann's disease following an incident of trauma, it was objected to by Counsel for the Defendant. [666] 5. I accept that there are times where the Plaintiff's pain could be more intense than at others, impacting on his levels of activity. This was acknowledged by Dr Carr, who stated:- "Q. Well, let me ask you it this way. If he was able to undertake the matters I just raised, it is unlikely, isn't it, that his pain level is what he says it is, do you agree with that? A. Again, in the main, yes. But having been put upon stage myself with an acute cervical disc protrusion that was pressing on my cervical cord and asked to dance in front of the natives, I've done it. I've also gone out and swung a golf club the next day and played with an acute disc protrusion. So I can do things, but it's no fun. Q. Yes, but we don't know that-- A. It's stupidity, really. Q. It is stupidity, isn't it? A. Even the doctor does it. Q. Yes, it is stupidity, isn't it? A. Yes." [667] 1. Various surveillance films were not shown to Dr Carr. In the circumstances, I do not form any views adverse to the Plaintiff as to any inconsistencies. I accept that after the incident the Plaintiff has endeavoured to maintain a reasonably active lifestyle doing a wide range of social and recreational activities although not of the same intensity and duration. Facebook photography is of limited forensic assistance. Such postings depict a moment of time that reflect the mood of the moment and are transitory. I can draw little from the photos beyond the fact that the Plaintiff continues to enjoy pleasurable pursuits to some degree. The Plaintiff did not deny being able to participate in a variety activities and has sought to maintain an active lifestyle despite his injury. I accept his evidence that the scope and duration of many of the activities he has engaged in has diminished consequent to the accident. I accept for the reasons the Plaintiff has given, that he experiences pain and discomfort from time to time and this interferes with his ability to attend to work duties, in recreational and home duty pursuits. Psychological evidence 1. The Plaintiff consulted the practice of Think Clinical Psychologists and saw Joanna Callaghan on 19 December 2011. He re-presented on 7 May 2012 when he saw Dr Sarah Hughes. Following an initial assessment by Dr Hughes the Plaintiff had cognitive behavioural therapy for six sessions. The Plaintiff was cross examined extensively about the history he had provided to her. [668] The Defendant ultimately submitted that the Court should reject Dr Hughes' opinion as it was inconsistent with the Plaintiff's own version of events described in his testimony, Exhibit F and Q. Specifically it was submitted that:- "[318] The plaintiff told Joanna Callaghan on the 19 December 2011 that he had 6 independent statements, that he had fractured his spine and that he had internal bruising. [319] He said at the top of the stairs he was grabbed by the throat, and at the bottom of the stairs thrown down on to the floor on face at foot of stairs a concrete floor [sic]. He said he was slammed down on the floor, that an officer jumped down on his back, that he felt something crack. [320] He said that he was not arrested, he didn't know what was going on and he didn't know what was happening. [321] His psychological impairment as stated by Dr Hughes is not born [sic] out by the evidence. Indeed the Plaintiff's recreational activities as identified in Ex1, Ex 2 and his sworn testimony demonstrate against a finding that the diagnostic criteria for PTSD have been made out. [322] It is respectfully submitted that the Court, should be satisfied the factual basis for her report has not been established, and the Court should reject her report." [669] 1. The thrust of the history from the Plaintiff relate to his grievance of over his treatment at the hands of police on the occasion in question. It is treatment which has to a significant extent been borne out in the findings in this matter. 2. The clinical records used to cross-examine the Plaintiff were not tendered in evidence. The Defendant also did not require Dr Hughes for cross-examination. [670] There is no evidence that the Plaintiff's activities contraindicate the diagnostic criteria for post-traumatic stress disorder. In any event, the Plaintiff was last seen on 29 August 2013 at which point Dr Hughes opined that he no longer met the criteria for post-traumatic stress disorder. 3. Nor has the Defendant produced any psychological evidence of its own. 4. Dr Hughes's evidence, which I accept, expressed her diagnosis as follows:- "[VI] The key feature of Post-Traumatic Stress Disorder is the onset of symptoms following exposure to a traumatic stressor involving direct experience of or bearing witness to an event involving actual or threatened death or serious injury. Mr. Thomlinson has reported to me that he was assaulted by police officers on the evening of Friday the 2nd of December, 2011. Based on what has been reported to me by Mr. Thomlinson I understand that this assault resulted in significant injury (Criteria A). [VII] Also consistent with a Post-Traumatic Stress Disorder diagnosis, Mr. Thomlinson has reported to me that he experienced recurrent, involuntary, and intrusive memories of the event, despite his attempts to avoid such thoughts (Criteria B, C). Further, Mr. Thomlinson reports experiencing intense and prolonged distress following exposure to reminders of the events of Friday the 2nd of December (e.g seeing a police car, hearing stories about the police on the news) (Criteria B). It is notable that Mr. Thomlinson's ongoing pain (which I understand from Mr. Thomlinson is a result of the injuries he sustained on Friday the 2nd of December, 2011) also serves as a reminder of the event and re-triggers his distress. [VIII] Mr. Thomlinson has reported to me that after the events of Friday the 2nd of December, 2011, he developed negative beliefs about his safety and the safety of his family. Mr. Thomlinson reports that he became fearful that he would be targeted by the police for speaking out against them. Mr. Thomlinson has also reported to me that he experienced persistent feelings of fear, shock, disbelief and outrage after the events of Friday the 2nd of December, 2011 (Criteria D). [IX] Based on information reported to me by Mr. Thomlinson I understand that after the events of Friday the 2nd of December, 2011 he became hypervigilant for signs of danger; was easily startled and felt constantly stressed, anxious, and on edge; experienced physical symptoms of hyper-arousal (including nausea, heart palpitations); found it difficult to concentrate; and had difficulty getting to and staying asleep (Criteria E), in large part due to intrusive memories of the event." [671] Civil Liability Act 2002 (NSW) 1. Although reliance on ss 51, 52, 53 and 54 the Civil Liability Act 2002 (NSW) were in the Defence. [672] The Defendant drew attention to no evidence and made no submission engaging ss 52 and 53 of the Civil Liability Act. In closing submissions reliance was confined to s 54 which it was argued in its interaction with ss 3B(1)(a)(ii) and 51 applied to personal injury damages arising from the intentional tort of assault and battery. The Defendant asserts that the Plaintiff committed the serious offences of:- 1. Resist a police officer in execution of duty contrary to Crimes Act 1900 (NSW) s 58; 2. Assault police officer in execution of duty contrary to Crimes Act 1900 (NSW) s 58; 1. For reasons earlier given I have rejected the allegation of the Plaintiff assaulting or resisting Police in the execution of duty. It follows that this defence cannot apply. 2. Bearing in mind the findings I have made, the Plaintiff's claim is confined to compensatory damages for the assaults, battery and false imprisonment together with interest and out of pocket expenses. Although a claim was made for economic loss this was not pursued in the Amended Schedule of Damages. 3. Section 3B of the 2002 Act excludes the provisions of the Act applying inter alia where "the civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death." The term injury is not defined in Part 1 of the 2002 Act although it is defined as "personal injury" in s 5 (for the purposes of Part 1A) and well as in s 11 (for the purpose of Part 2), s 26A (for the purpose of Part 2A) and as personal injury in s 27 (for the purposes of Part 3). 4. In State of New South Wales v Ibbett, Spigelman CJ stated:- "[21] The concept of 'personal injury' is reasonably well established in Australian legal practice. It has rarely, if ever, been used to refer to harm to reputation, deprivation of liberty, or to injured feelings such as outrage, humiliation, indignity and insult or to mental suffering, such as grief, anxiety and distress, not involving a recognised psychological condition. (See e.g. Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 359-363.) An award for the emotional harm involved in apprehension of personal violence would not generally be regarded as an award for 'personal injury damages.'" [673] 1. In New South Wales v Williamson, French CJ and Hayne J stated:- "[33] Often but not always, a battery will cause personal injury to the victim. False imprisonment is often accompanied by an assault and battery and the accompanying battery may (but need not) cause personal injury. There may be cases where an act of false imprisonment itself causes psychiatric, even physical injury. [34] Even assuming, however, that the respondent did allege that the act of wrongful imprisonment (as distinct from the batteries he alleged he had suffered) had caused him some personal injury, the claim for false imprisonment was necessarily a claim for damages on account of the deprivation of liberty with any accompanying loss of dignity and harm to reputation. The deprivation of liberty (loss of dignity and harm to reputation) is not an 'impairment of a person's physical or mental condition' or otherwise a form of 'injury' within s 11 of the Liability Act. The claim for false imprisonment, at least to the extent to which it sought damages for deprivation of liberty, is not a 'claim for personal injury damages.'" [674] 1. The Plaintiff asserted that each of the four incidents of assault, battery and false imprisonment were performed with the intention of causing injury. 2. In its submissions as to damages the Defendant submitted that the provisions of the Civil Liability Act applied on the basis of ss 51 and 54. In particular no issue as to the matter not being excluded from the Civil Liability Act by operation of s 3B was raised in either the Defence or its submissions. 3. The Defendant did submit however that the Court should find "applying the Briginshaw standard" that the alleged injury occurred unintentionally either when the Plaintiff came to the ground or when he was resisting whilst on the ground. [675] In the circumstances as I have found them, that submission must be rejected. 4. The Defendant next sought to rely on the judgment of Besanko and Robertson JJ in Fernando v Commonwealth of Australia [676] to submit:- "… even if there is no evidence that a defendant in fact formed a state of mind relevant to justify an action- a plaintiff is still only entitled to nominal damages if in the circumstances a person could and would have formed the relevant state of mind (and reasonable suspicion) and probably would have acted on their state of mind in the circumstances of the case (and so the Police officers did act, so it is a necessary inference that they would have so acted). So if the court is satisfied that the circumstances of this case could have given rise to any Police officers forming a reasonable suspicion that the plaintiff had committed an offence (particularly failure to quit) then the plaintiff could and would have been lawfully arrested to prevent him from continuing to remain at those licensed premises. It matters not whether police knew or turned their mind to the facts. Accordingly, only nominal damages should be awarded if the court finds that the plaintiff was falsely imprisoned as a matter of liability." [677] 1. The decision in Fernando was clearly based on the construction of s 189(1) of the Migration Act 1958 (Cth) which the required an officer who knew or reasonably suspected that a person is an unlawful non-citizen to detain the person. [678] By contrast s 77 (2) of the 2007 Act reposes a discretion to turn a person out. It follows that in the absence of any evidence that the discretion was or would have been engaged, the Defendant's argument must fail Compensatory damages 1. The claim for compensatory damages is specified to include a component of aggravated and exemplary damages. 2. The Plaintiff's claim is an amount of between $120,000 and for the assaults, $160,000 unlawful arrest and negligence. The Defendant has asserted a range up to $75,000 for assault and battery and $5,000 for the false imprisonment. 3. In the circumstances of the injury as I have found it, I would award damages of $90,000 for the four pleaded assaults. 4. In relation to his false imprisonment the Plaintiff's liberty was curtailed for just under an hour and he has suffered associated hurt feelings. In Coyle v New South Wales, the sum of $10,000 was awarded for the causes of wrongful arrest and false imprisonment with Tobias JA stating:- "[99] It is difficult to imagine, for a person who is otherwise generally a law abiding citizen, a more humiliating experience or a greater shock to one's equilibrium than being forcefully deprived of one's liberty for even a relatively short period of time in circumstances which are entirely unjustified. This is all the more so where that curtailment of liberty is accompanied, as in the present case, by the detained person being handcuffed and marched through a crowd of onlookers and then incarcerated in a police paddy wagon, locked in a cell at the police station and fingerprinted and photographed as a criminal. Not surprisingly, the whole experience must have been both humiliating and highly embarrassing." [679] 1. In this case, a shorter period of time was involved and the Plaintiff was not detained in cell. Nevertheless the circumstances were such that I consider the sum of $7,000 as being appropriate for the false imprisonment. 2. The Plaintiff's out of pocket expenses are claimed at $8,796.23 which were agreed arithmetically. [680] The Defendant disputed the cost of the Plaintiff's attendance on the ADAPT programme. The evidence was that $2,683.33 is still owed by the Plaintiff for the programme, although $250 for a medical assessment has been paid. [681] The Plaintiff's unchallenged evidence was that he would pay the sum. [682] The Defendant submitted that this cost should not be recompensed. The Defendant contended that there was no expert evidence warranting that expenditure and the amount that should be allowed is less than $5000 and limited to a period of six weeks. [683] The amount was included in a revised Schedule of Damages submitted by the Defendant. [684] 3. The Plaintiff's evidence was that he was on medication every day until he commenced that ADAPT programme. [685] The Plaintiff's evidence was that he told Dr Carr a he could not continue to live his life taking strong medication every day and in those circumstances he was referred to the chronic pain management clinic. [686] Contrary to the Defendant's submission, the Plaintiff's attendance at the ADAPT programme was supported by Dr Carr. Dr Carr's opinion was not challenged in this respect. Nor was the Plaintiff's evidence that he derived benefit from the course insofar as that he now only takes medication when he has a flare up (which is about once a month). [687] In my view, the whole of the out of pocket expenses claimed should be allowed. 4. The Plaintiff submitted an amount of $10,000 should be allowed for future medical and pharmaceutical expenses on the basis that the Plaintiff had incurred close to $9000 in the past four and a half years. The Plaintiff is aged 41 and will require medication and medical attention from time to time. [688] The Defendant made no allowance, on the basis that any back pain arose from a pre-existing degenerative back condition. This contention does not accord with the findings I have made. The Plaintiff's evidence was that he spent between $10 and $20 per month on medication. I would allow $7000 by way of buffer for future medicals. 5. In respect of aggravated damages particularisation of facts and circumstances as required by UCPR r 15.8 was not separately provided for in the Further Amended Statement of Claim. Following this being raised during submissions the relevant facts were referenced to those in set out in [69](i), (ii), (iiA), and (iii) [689] which read as follows:- (i) Loss of liberty - the plaintiff was unlawfully arrested, handcuffed whilst injured and detained while in the police transport vehicle. (ii) The plaintiff faced the fear and anxiety of a groundless prosecution against him until the matter was withdrawn and dismissed on 15 June 2012. (iiA) The plaintiff's civil rights were abused as a consequence of his malicious prosecution. (iii) As a result of the bringing of the charges, the plaintiff was required to attend the Local Court at Manly and at the Downing Centre, causing him embarrassment, humiliation, outrage, insult, insult, damage to his reputation, loss of self esteem and apprehension. [690] 1. Particulars (ii), (iiA) and (iii) relate to malicious prosecution in respect of which I have found for the Defendant. Particular (i) is the only one in respect of which any claim can be sustained. 2. The Plaintiff's evidence was that he had always respected police and thought of police respectfully. [691] However he felt, after the assault, not only had they used unnecessary force, [692] but he also felt "betrayed." [693] 3. The relevant principles governing the award of aggravated and exemplary damages are conveniently summarised in State of New South Wales v Zreika by Sackville AJA:- "[60] … Aggravated damages are given by way of compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant's wrongdoing, while exemplary damages are awarded to punish and deter the wrongdoer: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118, at 129-130, per Taylor J, cited with approval in New South Wales v Ibbett [2006] HCA 57; 229 CLR 638, at 646-647 [31],[33]. Aggravated damages are assessed from the point of view of the plaintiff, but an award of exemplary damages is based on the conduct of the defendant: NSW v Ibbett, at [34]; Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1, at 7 [15], per Gleeson CJ, McHugh, Gummow and Hayne JJ. However, the same set of circumstances may justify an award of either aggravated or exemplary damages, or both: NSW v Ibbett, at 647 [33]. [34]. [61] Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect " detestation " for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno. at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights ": Gray v MAC, at 7 [14]. [62] Exemplary damages may be awarded against the State in respect of the conduct of police officers for whose torts the State is responsible: NSW v Ibbett; NSW v Landini , at [114]. The assessment of exemplary damages in a case of conscious and contumelious disregard of the plaintiff's rights by the police: "should indicate ... that the conduct of the [police] was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses ... do not happen." Ibbett, at 653 [51], citing Adams v Kennedy (2000) 49 NSWLR 78, at 87, per Priestley JA. [63] In a frequently cited passage, Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448, at 471, observed that the considerations that enter into the assessment of compensatory damages are quite different from those that govern the assessment of exemplary damages and that there is no necessary proportionality between the assessment of the two categories. Nonetheless, in NSW v Ibbett, at 647 [34], the plurality endorsed the proposition that it is necessary to determine both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation. Their Honours also said (at [35]) that where the same circumstances increase the hurt to the plaintiff and also make it desirable for the Court to mark its disapprobation of the conduct, a single sum may be awarded. Such an award would represent both heads of damage and ensure that no element is compensated more than once." [694] 1. In State of New South Wales v Riley, Hodgson JA stated:- "[130] If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages? [131] In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified. [132] That approach is consistent with what Lord Reid said in Cassell & Co. Ltd. v. Broome [1972] UKHL 3; [1972] AC 1027 at 1085: Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not so where he has been caused mental distress or when his reputation has been attacked - where, to use the traditional phrase, he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain how far other people's minds have been affected, it is almost impossible to equate the damage to a sum of money. Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions. So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled as compensation. It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation. [133] This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means, I think, that aggravated damages can be a matter of degree: the worse the defendant's conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going." [695] 1. The Defendant contended that the Plaintiff's actions were provocative and in line with the decision in Whitbread v Rail Corporation New South Wales [696] which followed Fontin v Katapodis [697] aggravated and exemplary damages should not be awarded. 2. The Defendant argued that Exhibit H incontrovertibly showed the Plaintiff's attitude to police and security guards. It asserted that the Plaintiff was defiant and had the Plaintiff left the Shore Club when asked by security, he would not be in the situation in which he finds himself. In oral submissions, it was added:- "If your Honour finds that the plaintiff was assaulted in assault terms, your Honour may award exemplaries but that would be the lower end of the scale. But your Honour, the High Court has made clear this - provocation will disentitled the plaintiff to an award for aggravated and exemplary damages, and we rely on Fontin v Katapodis for that proposition in the High Court. We have detailed - commencing at paras 361 all the way through to 381. I am not going to read from the cases. It is clear that in these circumstances, particularly when your Honour has got the benefit of exhibit H which demonstrates his conduct, the evidence of Church and Renshaw as to his conduct on the lower staircase, their evidence including Grime's evidence as to the communications between him and his conduct, your Honour would find he provoked the conduct of the police which disentitles him, we say, to aggravated and exemplary damages." [698] 1. The Plaintiff made no submission on this question. 2. In this instance I am satisfied that the Plaintiff was not lawfully arrested or detained. At the point where police asked the Plaintiff to leave the premises at the top of the stairs, I am satisfied that no explanation was given as to why the officers had forced the Plaintiff's arms behind his back. 3. Both officers had an obligation to act in a measured way. I am not satisfied that the Plaintiff was in breach of the peace as the police had alleged. The actions of the officers at the entrance of the Shore Club involving the Plaintiff being forced to the ground, face first and then kneeing him in the back causing injuries, as well as forcing both his arms behind his back to facilitate his handcuffing, and ignoring his pleas that he had been hurt by their actions are noted. I am not satisfied that police informed the Plaintiff at that point that he was being detained for breach of the peace or for failing to leave the premises. Even if they did, there was no lawful basis for such a detention. 4. I accept that the Plaintiff was handled aggressively, handcuffed and his pleas for medical treatment were ignored. I am satisfied that the false imprisonment continued at that point, forcing the Plaintiff into the back of the vehicle whilst his hands were handcuffed so he could not control his fall and his movement in the vehicle as a consequence of not being secured whilst being driven around, added to his injury. Finally, when the Plaintiff was removed from the vehicle forcibly, he was taken to a location unfamiliar to him and was told to make his own way home. He was not taken to hospital as he had requested. 5. I accept that this police conduct was such that the Court should mark disapproval of it. The amount should bring home that those officials for the State that are responsible for overseeing the NSW Police Force, that police officers act in a way to ensure that these incidents do not occur. I accept that the Plaintiff's actions at the commencement of his interaction with police were provocative and I have taken that into account. Cooperation on his part with the security officers could have avoided the situation that emerged. However, that in my view, does not justify the conduct to which he was subjected such as to disentitle him to aggravated and exemplary damages. 6. In the circumstances, I would award aggravated damages of $15,000 and exemplary damages of $20,000. 7. The Plaintiff is entitled to interest on past compensatory damages. The Plaintiff's Schedule of Damages claims that in accordance with Practice Note 15. 8. Whilst the Defendant concedes an entitlement to interest in relation to compensatory damages, it was not clear from submissions that it had agreed to the rate proposed by the Plaintiff. In the circumstances, I will hear further argument in light of these reasons. Heads of damage Award General damages for the four assaults $90,000.00 General damages for the false imprisonment $7,000.00 Out-of-pockets for past expenses $8,796.23 Out-of-pockets for future expenses by way of buffer $7,000.00 Aggravated damages $15,000.00 Exemplary damages $20,000.00 TOTAL $147,796.23 ORDERS 1. The orders of the Court are:- 1. Verdict and Judgment for the Plaintiff in the sum of $147,796 (rounded down); and 2. I will hear from the parties as to interests and costs. Endnotes 1. Hereinafter referred to as "LSC Church" 2. Hereinafter referred to as "SC Renshaw" 3. Defence to Further Amended Statement of Claim filed 5 April 2016 at [1](a) 4. (2009) 52 MVR 492, 526 (Basten JA with Handley AJA agreeing); see also: SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 at [115] (Ward JA with Macfarlan JA and Sackar J agreeing) 5. Defendant's Written Submissions, dated 26 April 2016 at [10] 6. Defendant's Written Submissions, dated 26 April 2016 at [10] 7. [2009] NSWCA 227 at [2] (Basten JA) 8. See Judgment of 14 April 2016 9. Plaintiff's Written Submissions, dated 21 April 2016 at [53] – [54] 10. [2014] NSWCA 230 at [24] (Meagher JA with Basten and Gleeson JJA agreeing) 11. [2013] NSWCA 437 at [66] (Ward JA with Beazley P and Barrett JA agreeing) 12. [2015] NSWSC 1633 at [98] – [116] (Hallen J) 13. Exhibit J 14. Exhibit J 15. Exhibit L 16. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, p 41 at [6]; Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 56 at [6] 17. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, p 41 at [6]; Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 56 at [6] 18. T 22.43 19. Exhibit J 20. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 56 at [6] 21. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 56 at [6] 22. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 57 at [8] and T 459.5 – .7 23. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, p 41 at [6] and Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 56 at [6] 24. Exhibit F, Statement of Ms Andrew Latham, dated 7 January 2012, p 114 at [7] 25. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 57 at [8] 26. T 459.9 – .17 27. T 459.24 – .26 28. T 459.39 – .40 29. T 459.42 – .44 30. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, p 42 at [8] – [9] and Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 57 [8] and [9] 31. Exhibit F, Statement of Ms Andrew Latham, dated 7 January 2012, p 114 at [7] (Mr Latham stated that they arrived "After 9pm") 32. Exhibit F, Statement of Mr Casey Aimer, dated 23 January 2012, p 122 at [6] 33. Exhibit H (comprising H1 – Plaintiff's compilation disc; H2 – Shore Club discs and H3 – the police compilation disc) 34. Defendant's Written Submissions, dated 26 April 2016 at [14] – [15] 35. T 459.50 – 460.1 36. T 459.50 – 467.30 37. Defendant's Written Submissions, dated 26 April 2016 at [17] and [46] 38. Exhibit F, Statement of Mr Casey Aimer, dated 23 January 2012, p 122 at [8] 39. Exhibit F, Statement of Ms Andrew Latham, dated 7 January 2012, p 114 at [10] 40. T 468.47 – 469.2 41. T 468.24 – .30 42. T 470.33 – .35 43. T 460.44 – .45 44. Exhibit N 45. T 21.31 – .36 and Exhibit N 46. T 464.13 – .16 and Exhibit J 47. T 33.17 - .19 48. T 464.33 – .36 49. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, p 42 at [10] and Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 57 at [10] 50. Exhibit J 51. Exhibit J 52. Exhibit K 53. T 170.1 – .13 54. T 21.48 – .49 and Exhibit K 55. T168.45 – .48 56. T 22.25 – .30 57. T 27.42 – .46 58. T 27.42 – .46 59. T 120.45 – 121.22 60. T 121.24 – .26 61. Exhibit F, Statement of Ms Andrew Latham, dated 7 January 2012, p 114 at [8] 62. Exhibit F, Statement of Mr Casey Aimer, dated 23 January 2012, p 122 at [7] 63. T 26.40 – .45 64. T 26.47 – 27.1 65. T 121.28 – .33 66. T 124.28 – .43 67. T 121.36 – .37 68. T 28.47; see also at T 121.40 – .43 69. T 121.38 – .39 70. T 157.36 – .39 71. T 29.1 – .2 72. T 29.4 – .7 73. T 29.14 – .17 74. Exhibit J 75. T 122.50 – 123.15 76. T 123.17 – .27 77. T 123.43 – .45 78. T 121.43 79. T 122.23 – .25 80. T 29.41 – .42 81. T 30.3 – .4 82. T 30.10 – .12 83. T 158.9 84. Exhibit H 85. T 157.48 – 159.30 86. T 161.32 – 34 87. T 161.36 – .38 88. Exhibit Q, "Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct", dated 13 December 2011 89. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, pp 43 – 45 at [14] – [16] 90. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, pp 43 – 45 at [14] – [16]; and Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 59 at [15] – [16] 91. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 72 at [11] 92. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, pp 73 – 74 at [12] – [16] 93. T 199.1 – .27 94. T 201.11 – .15 95. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 74 at [19] 96. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 74 at [20] 97. Exhibit F, Statement of Mr Mahmoud Almir, dated 18 December 2011, p 69 at [9] 98. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 73 at [12] 99. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 73 at [14] 100. Exhibit F, Statement of Mr Mahmoud Almir, dated 18 December 2011, pp 69 – 70 at [10] – [14] 101. T 207.9 – .19 102. T 203.45 – .46 103. T 209.34 – .35 104. T 206.46 and T 207.18 – .19 105. T 207.45 – 212.10 106. T 29.24 – .25 107. T 30.15 – .18 108. Exhibit J 109. T 30.31 – .32 110. T 30,42 – .44 111. T 163.25 – .42 112. T 177.34 – .37 113. T 230.9 – .10 114. T 236.31 – .33 115. T 237.1 – .5 116. Exhibit Q, "Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct", dated 13 December 2011 at [6] 117. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, pp 44 – 45 at [15] – [16] 118. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, pp 73 – 74 at [16] – [17] 119. Exhibit F, Statement of Mr Mahmoud Almir, dated 18 December 2011, pp 69 – 70 at [11] – [12] 120. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 157 at [4] 121. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 158 at [5] 122. Exhibit F, NSW Police Force Notebook issued to Constable Amy O'Donnell, pp 166 – 167 123. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 159 at [12] – [14] 124. Exhibit F, NSW Police Force COPS entries, pp 76 – 77 125. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 149 at [7] – [10] 126. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 149 at [11]; and also see: Exhibit F, NSW Police Force COPS entries, pp 76 - 77 127. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 159 at [14] and Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 179 at [8] 128. Exhibit F, NSW Police Force COPS entries, p 77 and Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 150 at [12] 129. Exhibit F, NSW Police Force Notebook issued to Senior Constable Ritson Renshaw, p 184 130. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, pp 178 –9 at [5] – [15] 131. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 180 at [16] 132. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 159 at 15] 133. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 150 at [12] 134. T 30.48 – .49 135. T 31.3 – .5 136. T 31.11 – .13 137. T 33.27 – .31 138. T 33.38 – .39 and T 33.42 139. T 33.46 – .47 140. T 33.50 141. T 34.27 – .28 142. T 67.28 – .30 143. T 67.32 – .34 144. T 67.36 – .38 145. Exhibit Q, "Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct", dated 13 December 2011, p 11 at [6] 146. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 60 at [17] 147. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 60 at [17] 148. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 60 at [18] 149. T 67.40 – .41 150. T 35.21 – .22 151. T 35.28 – .30 152. T 36.22, T 36. 25 153. T 36.25 154. T 238.25 155. T 315.17 – .22 156. T 316.1 – .2 and being marked on Exhibit T 157. T 316.28 – .34 158. T 316.37 159. T 316.40 160. T 316.44 161. T 316.48 162. T 317.8 163. T 317.13 164. T 317.21 – .22 165. T 317.27 – .31 166. T 317.36 – .37 167. T 317.45 – .48 168. T 318.1 169. T 318.13 – .18 170. T 318.34 – .35 171. T 318.42 172. T 319.4 – .6 173. T 319.8 – .9 174. Exhibit F, Handwritten statement of Ms Hayley McKirgan, undated, p 102 175. T 321.46 – .50 176. T 322.8 – .20 177. T 323.9 – .17 178. Exhibit F, Handwritten statement of Ms Hayley McKirgan, undated, p 102 179. Exhibit F, Statement of Ms Hayley McKirgan, dated 24 December 2011, pp 99 – 101 180. T 319.48 – .49 181. Exhibit F, Statement of Ms Hayley McKirgan, dated 24 December 2011, pp 100 – 101 at [7] – [17] 182. T 323.40 – 324.17 and T 324.33 – .37 183. T 324.21 – .26 184. T 325.22 – .24 185. T 326.18 – .24 186. T 324.36 – .37 187. T 511.8 – .10 188. T 510.8 – .9 189. T 511.41 – .46 190. T 512.1 – .4 191. T 512.30 – .31 192. T 513.22 – 514.7 193. Exhibit F, Handwritten statement of Ms Honora Campbell, dated 15 December 2012, p 110 194. Exhibit F, Statement of Ms Honora Campbell, dated 6 January 2012, pp 108 – 109 at [5] – [12] 195. T 515.26 – .27 196. T 515.29 – .33 197. T 516.1 – .4 198. T 516.6 – .7 199. T 519.39 – .40 200. T 519.45 – 520.36 201. T 522.5 – .7 202. T 522.17 – .19 203. T 522.25 – .26 204. T 525.15 – .24 205. T 522.21 – .23; and T 525.26 – .28 206. T 522.29 – .36 207. Exhibit F, Statement of Ms Sanae Edwards, dated 30 December 2011, pp 105 – 106 at [6] – [12] 208. Exhibit F, Statement of Mr Sandeep Narwal, dated 13 January 2012, p 119 at [5] 209. Exhibit F, Handwritten statement of Mr Sandeep Narwal, dated 13 January 2012, p 120 210. Exhibit F, NSW Government – Office of Liquor, Gaming & Racing Incident Register, dated 3 December 2011, p 96 211. Exhibit F, Statement of Mr Eliki Sagoa, dated 23 December, p 91 at [10] 212. Exhibit F, Statement of Mr Eliki Sagoa, dated 23 December 2011, pp 91 – 92 at [9] 213. Exhibit F, Handwritten statement of Mr Eliki Sagoa, undated, p 93 214. Exhibit F, Handwritten statement of Mr Eliki Sagoa, undated, p 93 215. Exhibit F, Statement of Mr Eliki Sagoa, dated 23 December, p 90 at [6] 216. Exhibit F, Statement of Mr Eliki Sagoa, dated 18 January 2012, p 98 at [4] 217. Exhibit F, Statement of Mr Eliki Sagoa, dated 23 December, p 90 at [9] 218. Exhibit F, Statement of Mr Eliki Sagoa, dated 23 December, pp 90 - 91 at [9] – [10] 219. Exhibit F, NSW Police Force COPS entries, p 78 220. Exhibit B 221. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 148 at [3] 222. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, pp 150 – 151 at [14] – [19] 223. Exhibit F, NSW Police Force Notebook issued to Constable Amy O'Donnell, p 167 224. Exhibit D 225. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, pp 160 – 161 at [16] – [21] 226. Exhibit F, NSW Police Force Notebook issued to Senior Constable Ritson Renshaw, pp 184 – 185 227. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 61 at [19] 228. T 36.25 229. T 35.28 – .30 230. Exhibit Q admitted subject to a restriction under s 136 of the Evidence Act 1995 (NSW) as evidence of details of complaint not its truth 231. Exhibit Q, "Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct", dated 13 December 2011, p 12 at [11] 232. T 36.34 – .35 233. T 36.39 – .40 234. T 36.42 – .43 235. T 36.44 236. T 36.48 – .50 237. T 37.1 – .38 238. Exhibit Q, "Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct", dated 13 December 2011 239. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 61 at [20] 240. Exhibit F, NSW Police Force Notebook issued to Constable Amy O'Donnell, p 170 241. T 452.14 – .17 242. T 275.14 – .47 243. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 151 at [22] – [24] 244. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 160 at [18] – [21] 245. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 181 at [24] – [42] 246. T 38.39 – .40 247. T 38.42 – .44 248. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 181 at [23] 249. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 181 at [26] 250. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 181 at [27] – [32] 251. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 182 at [38] and T 276.22 – .27 252. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 160 at [19] 253. T 37.46 – .47 254. T 37.50 – 38.5 255. T 39.8 – .12 256. T 39.15 – .17 257. T 39.26 – .29 258. T 39.31 – .32 259. T 39.34 – .43 260. T 39.40 – .43 261. T 39.43 262. Exhibit M 263. T 40.31 264. T 40.9 – .11 265. T 278.40 – 279.13 266. T 278.50 – 279.4 267. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 153 at [25] 268. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 161 at [22] 269. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 140 at [7] 270. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 140 at [8] 271. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 141 at [10] 272. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 142 at [14] 273. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 142 at [15] 274. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 142 at [15] 275. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 142 at [15] 276. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 143 at [19] 277. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 144 at [20] 278. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 144 at [20] 279. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 144 at [22] 280. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 144 at [22] 281. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 144 at [22] 282. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 145 at [23] 283. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 139 at [3] 284. Exhibit F, NSW Police Force COPS entries, p 80 285. Exhibit F, NSW Police Force COPS entries, p 80 286. Exhibit F, VKG transcript of 3 December 2011, p 128 287. Exhibit F, VKG transcript of 3 December 2011, p 130 288. Plaintiff's Further Amended Statement of Claim, filed 1 April 2016 at [40] 289. T 91.18 – .29 290. T 39.26 – 29 291. T 39.15 – .17 292. T 91.40 – .43 293. Exhibit M 294. T 42.41 – .42 295. T 42.45 – .46 296. T 43.1 – .2 297. T 43.5 – .6 298. T 43.25 – .26 299. T 43.31 – .35 300. T 111.38 – .39 301. T 112.33 – .41 302. T 112.43 – .44 303. T 113.10 – .17 304. T 113.37 – .39 305. Exhibit H 306. T 114.18 – .19 307. T 114.32 – .39 308. T 115.16 – .28 309. T 115.37 – .42 310. T 116.34 – .36 311. T 116.38 – .47 312. T 116.49 – 117.20 313. Exhibit F, Report of Dr Nicholas Silberstein dated 4 January 2012, p 137 314. Exhibit F, Statement of Mr Sam Delamont, dated 1 February 2012, p 125 at [18] 315. Exhibit F, Statement of Mr Biju Maharjan, dated 14 February 2012, p 132 at [9] – [10] 316. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 151 at [20] 317. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 160 at [19] 318. Exhibit F, NSW Police Force Notebook issued to Senior Constable Iain Church, p 156 319. Exhibit F, NSW Police Force Notebook issued to Senior Constable Iain Church, p 156 320. Exhibit D 321. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, pp 172 – 172A at [5] 322. Exhibit F, Statement of Mr Michael Raftopoulos, dated 27 February 2012, p 173 at [8] 323. T 223.7 – 224.22 324. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, pp 63 – 64 at [26] – [27] and [29] 325. Exhibit Q, "Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct", dated 13 December 2011 at [28] 326. Exhibit F, NSW Police Force COPS entries, p 81 327. Exhibit Q, "Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct", dated 13 December 2011 328. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, p 43 at [14] and p 58 at [14] 329. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 58 at [12] – [13] 330. T 198.25 – .26 331. T 206.12 – .15 332. Defendant's Written Submissions, dated 26 April 2016 at [22] 333. T 647.24 – .27 334. T 648.40 – .42 335. T 648.43 – .45 336. Defendant's Written Submissions, dated 26 April 2016 at [24] 337. T 654.36 – .37; also: Defendant's Written Submissions, dated 26 April 2016 at [22] (which states the time as 12:37:94) 338. T 656.20 – .22 339. T 649.29 – .41 340. T 600.44 – .45 341. T 601.10 – .11 342. Plaintiff's Further Amended Statement of Claim, filed 1 April 2016 at [10] – [17] 343. Plaintiff's Schedule of Issues and Damages at [1](c) 344. Defendant's Defence to Further Amended Statement of Claim, filed 5 April 2016 at [9](a)-(c) 345. (1871) 12 Cox C.C. 8 346. (1937) 56 CLR 605 347. (1935) 35 SR (NSW) 281, 286 (Jordan CJ) 348. Defendant's Written Submissions, dated 26 April 2016 at [199]-[201] 349. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 172 at [4] 350. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 149 at [10] 351. Defendant's Written Submissions, dated 26 April 2016 at [106] (see also at [21]) 352. Exhibit F, Statement of Ms Honora Campbell, dated 6 January 2012, p 109 at [11] 353. T 515.26 – .27 354. T 622.31 – .34 355. Exhibit F, NSW Police Force COPS entries, p 76 and Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 149 at [8] ("At this time, Police witnessed a member of staff who I now know to be Mahmoud MAHMOUD") 356. T 183.18 – .26 357. T 121.1 – .22 358. T 649.12 – .17 359. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 73 at [11] – [12] 360. Exhibit F, Statement of Mr Mahmoud Almir, dated 18 December 2011, p 69 at [10] 361. Exhibit F, Statement of Mr Mahmoud Almir, dated 18 December 2011, p 69 at [10] 362. Exhibit F, Statement of Mr Mahmoud Almir, dated 18 December 2011, p 69 at [10] 363. Exhibit F, Statement of Mr Mahmoud Almir, dated 18 December 2011, p 70 at [14] 364. Exhibit F, NSW Police Force COPS entries, p 76 and Exhibit F, Statement of Sergeant Craig Michael Huleatt, dated 20 December 2011, p 87 at [5] 365. Exhibit F, NSW Police Force COPS entries, p 85 366. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 159 at [11] 367. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 149 at [7] 368. T 27.44 – .46 369. T 250.36 – .47 370. Exhibit H 2.1 371. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 72 at [10] 372. Exhibit F, NSW Police Force Notebook issued to Constable Amy O'Donnell, pp 165 – 169 373. T 251.29 – .36 374. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 73 at [14] 375. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 73 at [12] 376. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 73 at [15] 377. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 74 at [20] 378. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 151 at [20] and p 153 at [25] 379. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 159 at [14] and p 160 at [19] 380. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 181 at [23] and p 181 at [34] 381. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 181 at [23] – [24] 382. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 140 at [8] 383. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 141 at [12] 384. Exhibit F, VKG transcript of 3 December 2011, p 130 385. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 145 at [23] 386. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 160A at [21] 387. Exhibit F, NSW Police Force COPS entries, p 78 388. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 151 at [21] 389. Exhibit F, NSW Police Force Notebook issued to Senior Constable Iain Church, p 156 390. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 181 at [23] and p 182 at [42] 391. Exhibit F, NSW Police Force Notebook issued to Constable Amy O'Donnell, p 167 392. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 151 at [20] 393. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 61 at [19] 394. Exhibit F, NSW Police Force Notebook issued to Senior Constable Ritson Renshaw, p 185 395. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 172 at [4] 396. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 149 at [11]; Exhibit F, NSW Police Force Notebook issued to Senior Constable Iain Church, p 156; Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 159 at [14], Exhibit F, NSW Police Force Notebook issued to Constable Amy O'Donnell, p 166; Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 179 at [8]; and Exhibit F, NSW Police Force Notebook issued to Senior Constable Ritson Renshaw, p 184 397. T 601.36 – .41 398. Exhibit F, Handwritten statement of Mr Eliki Sagoa, undated, p 93 399. Exhibit F, Handwritten statement of Ms Honora Campbell, dated 15 December 2012, p 110 400. T 528.11 – 529.7 401. T 604.23 – .32 402. Hereinafter referred to as the "2002 Act" 403. Defendant's Defence to Further Amended Statement of Claim, filed 5 April 2016 at [9](i) 404. Defendant's Defence to Further Amended Statement of Claim, filed 5 April 2016 at [9](k) 405. (2004) 151 A Crim R 256; [2004] NSWSC 926, 262 [24] (Barr J) 406. Police Act 1990 (NSW) s 6(3)(a) 407. Defendant's Written Submissions, dated 26 April 2016 at [222] 408. Defendant's Written Submissions, dated 26 April 2016 at [226] – [227] 409. T 630.39 – .46 410. R v Inwood [1973] 2 All ER 645 411. Alderson v Booth [1969] 2 QB 216; and Plaintiff's Written Submissions, dated 21 April 2016 at [71] 412. T 582.32 – 583.12 413. [1982] QB 416, 426 – 427 (Watkins LJ) 414. [2013] NSWCA 334 at [18] (Leeming JA Ward and Emmett JJA agreeing) 415. [2013] NSWCA 334 at [21] (Leeming JA with Ward and Emmett JJA agreeing) 416. [2013] NSWCA 334 at [19] (Leeming JA with Ward and Emmett JJA agreeing) 417. [2008] NSWCA 107 418. [2008] NSWCA 107 at [91] – [101] (Campbell JA) 419. [2008] NSWCA 107 at [101] (Campbell JA) 420. T 605.39 – .44 421. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 150 at [12] 422. Defendant's Defence to Further Amended Statement of Claim, filed 5 April 2016 Claim at [9](j)(ii)(b) 423. Defendant's Written Submissions, dated 26 April 2016 at [229] – [235] 424. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 150 at [12] 425. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 159 at [15] 426. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, pp 179 – 180 at [11] – [15] 427. T 583.5 – .12 428. T 671.23 – .28 429. Defendant's Written Submissions, dated 26 April 2016 at [105] 430. Exhibit F, NSW Police Force Notebook issued to Constable Amy O'Donnell, p 168 431. Exhibit B 432. T 584.22 – .33 433. Plaintiff's Further Amended Statement of Claim, filed 1 April 2016 Claim at [18] 434. Plaintiff's Further Amended Statement of Claim, filed 1 April 2016 at [19] 435. Plaintiff's Further Amended Statement of Claim, filed 1 April 2016 at [20] – [23] 436. Plaintiff's Schedule of Issues and Damages at [1](c) 437. Plaintiff's Written Submissions, dated 21 April 2016 at [93] – [94] 438. Defendant's Written Submissions, dated 26 April 2016 at [6] 439. Defendant's Written Submissions, dated 26 April 2016 at [8] 440. Exhibit Q, "Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct", dated 13 December 2011 at [10] 441. Defendant's Written Submissions, dated 26 April 2016 at [157] and [159] 442. Defendant's Written Submissions, dated 26 April 2016 at [158] 443. Defendant's Written Submissions, dated 26 April 2016 at [145] 444. Defendant's Written Submissions, dated 26 April 2016 at [162] 445. T 515.38 – .39 446. T 515.32 – .33 447. T 324.33 – .37 448. T 514.6 – .7 449. T 319.8 – .9 450. T 324.4 – .6 451. T 324.24 – .26 452. Exhibit F, Statement of Ms Sanae Edwards, dated 30 December 2011, p 106 at [7] 453. Exhibit F, Statement of Ms Sanae Edwards, dated 30 December 2011, p 106 at [10] 454. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 150 at [15] 455. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 180 at [18] 456. Exhibit F, Statement of Mr Eliki Sagoa, dated 18 January 2012, p 98 at [4] 457. Exhibit F, Statement of Mr Michael Raftopoulos, dated 27 February 2012, p 172 at [4] 458. Exhibit F, NSW Police Force Notebook issued to Senior Constable Ritson Renshaw, p 184 459. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 180 at [20] 460. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 151 at [17] 461. Exhibit F, Statement of Sergeant Craig Michael Huleatt, dated 20 December 2011, p 87 at [5] 462. T 67.28 – .34 463. T 237.31 – .39 464. T 325.22 – .24 465. T 353.28 – .33 466. [2016] NSWCA 132 at [24] – [25] (Leeming JA with Beazley P and Ward JA agreeing) 467. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 162 at [24] and Exhibit F, NSW Police Force Notebook issued to Constable Amy O'Donnell, p 170 468. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 153 at [24] and also at Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 142 at [15] 469. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 182 at [42]; and Exhibit F, NSW Police Force Notebook issued to Senior Constable Ritson Renshaw, p 184 470. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 160A at [21] 471. T 641.10 – .14 472. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 142 at [14] 473. T 585.17 – .23 474. T 618.36 – .49 475. T 638.11 – .12 476. Exhibit Q, "Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct", dated 13 December 2011 at [12] and [14] 477. Bearing in mind the nature of Exhibit Q and the limited basis on which it was admitted 478. Exhibit F, Statement of Constable Christopher Grime, dated 22 February 2012, p 143 at [18] 479. Plaintiff's Further Amended Statement of Claim, filed 1 April 2016 at [27] – [34] 480. Plaintiff's Schedule of Issues and Damages at [1](e) 481. T 584.44 – .47 482. T 531.24 – .29 483. Plaintiff's Schedule of Issues and Damages at [1](f) 484. Defendant's Defence to Further Amended Statement of Claim, filed 5 April 2016 at [24](a) 485. Defendant's Defence to Further Amended Statement of Claim, filed 5 April 2016 at [26](b) 486. Exhibit H and Exhibit M 487. (1982) 151 CLR 1, 26 (Deane J) 488. (1955) 94 CLR 147; [1955] HCA 68, 152 [3] (Fullagar J) 489. Exhibit F, NSW Police Force Notebook issued to Senior Constable Iain Church, p 156 490. Exhibit F, NSW Police Force COPS entries, p 85 491. Exhibit F, NSW Police Force Notebook issued to Senior Constable Ritson Renshaw, pp 184 – 185 492. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 182 at [42]; Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 152 at [24]; and Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 160A at [21] 493. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 162 at [24] 494. Exhibit F, NSW Police Force Notebook issued to Constable Amy O'Donnell, p 170 495. Exhibit F, Statement of Sergeant Craig Michael Huleatt, dated 20 December 2011, p 88 at [6] 496. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 153 at [26] 497. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 153 at [26] 498. Exhibit Q, "Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct", dated 13 December 2011 at [28] 499. Exhibit F, p 54 and 66 – 67 500. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 55 – 65 501. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, pp 71 – 74 502. Exhibit F, NSW Police Force COPS entries, p 80 503. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 153 at [29] 504. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 154 at [30] 505. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 153 at [27] 506. Exhibit B 507. Exhibit A 508. Exhibit B 509. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 161 at [24] 510. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 161 at [31] 511. Exhibit J 512. Exhibit D 513. Exhibit J 514. T 7.22 – 8.16 515. (2007) 230 CLR 500; [2007] HCA 10 516. (2007) 230 CLR 500; [2007] HCA 10, 502 – 503 [1] 517. Exhibit A, B, C and D 518. Exhibit E 519. Defendant's Schedule of Damages; and Defendant's Schedule of Issues 520. Plaintiff's Further Amended Statement of Claim, filed 1 April 2016 at [55] 521. Plaintiff's Further Amended Statement of Claim, filed 1 April 2016 at [58] 522. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 161 at [24] 523. Exhibit S, Transcript of Local Court proceedings at Downing Centre before Magistrate Bradd on Wednesday, 8 August 2012 at T 4.10 – .11 524. T 507.20 – .22 525. T 508.1 – .4 526. (2007) 230 CLR 500; [2007] HCA 10, 512 [34] 527. Citing John G Fleming, The Law of Torts (9th ed 1998,LBC Information Services) at 676 528. [2013] NSWSC 330 at [141] (Adamson J) 529. [2010] NSWCA 157 at [52] – [60] (Macfarlan JA with Tobias JA and Sackville AJA agreeing) 530. Sahade v Bischoff [2015] NSWCA 418 at [121] (Gleeson JA with Basten JA and Beech-Jones J agreeing); see also: HD v State of New South Wales [2016] NSWCA 85 at [74] – [75] (Gleeson JA with Leeming JA and Emmett AJA agreeing) 531. Plaintiff's Schedule of Issues and Damages at [2] and Defendant's Schedule of Damages; and Defendant's Schedule of Issues at [13] – [17] 532. (2007) 230 CLR 500; [2007] HCA 10, 514 [39] 533. (2007) 230 CLR 500; [2007] HCA 10, 519 – 520 [57] – [59] 534. (2007) 230 CLR 500; [2007] HCA 10, 527 [77] 535. (2007) 230 CLR 500; [2007] HCA 10, 528 [80] – [81] 536. (2007) 230 CLR 500; [2007] HCA 10, 528 – 529 [82] – [87] 537. (2008) 74 NSWLR 34; [2008] NSWCA 316, 58 - 59 at [102] (Gyles AJA with Hodgson and Campbell JJA agreeing); see also HD v State of New South Wales [2016] NSWCA 85 at [99] (Gleeson JA with Leeming JA and Emmett AJA agreeing) 538. T 17.30 – .34 539. T 661.14 – .16 540. T 108.13 – .16 541. Plaintiff's Written Submissions, dated 21 April 2016 at [104] 542. Plaintiff's Further Amended Statement of Claim, filed 1 April 2016 at [58] – [64] 543. Plaintiff's Written Submissions, dated 21 April 2016 at [57] 544. Plaintiff's Written Submissions, dated 21 April 2016 at [65] 545. Plaintiff's Written Submissions, dated 21 April 2016 at [59] – [64] 546. Exhibit F, Statement of Constable Amy O'Donnell, dated 22 February 2012, p 160 at [19] 547. Exhibit F, NSW Police Force Notebook issued to Senior Constable Iain Church, p 156 548. Defendant's Written Submissions, dated 26 April 2016 at [302] 549. Plaintiff's Written Submissions, dated 21 April 2016 at [106] 550. T 114.45 – 115.10 551. Plaintiff's Further Amended Statement of Claim, filed 1 April 2016 at [49] 552. Defendant's Defence to Further Amended Statement of Claim, filed 5 April 2016 at [34] 553. Gilinski v McIver [1962] AC 726 554. (2007) 230 CLR 500 ; [2007] HCA 10, 531 – 532 [90] – [93] 555. State of New South Wales v Beck [2013] NSWCA 437 at [71] (Ward JA with Beazley P and Barrett JA agreeing) 556. State of New South Wales v Beck [2013] NSWCA 437 at [74] (Ward JA with Beazley P and Barrett JA agreeing) 557. A State of New South Wales v Beck [2013] NSWCA 437 at [75] (Ward JA with Beazley P and Barrett JA agreeing) 558. State of New South Wales v Beck [2013] NSWCA 437 at [32] (Ward JA with Beazley P and Barrett JA agreeing) 559. See: State of New South Wales v Hunt [2014] NSWCA 47 at [32] – [45] (Leeming JA with Barrett JA and Tobias AJA agreeing) 560. T 92.12 – .21 561. T 92.23 – .30 562. T 93.11 – .21 563. T 105.30 – 106.16 564. T 70.47 – 71.7 565. Exhibit 2 566. T 282.33 – .35 567. T 283.13 – .34 568. T 289.25 – .26 569. T 289.9 – .11 570. T 289.44 – 289.45 571. T 374.25 – .32 572. T 376.27 – .49 573. T 378.1 – .2 574. T 379.32 – .35 575. T 380.3 – .5 576. T 386.29 – .32 577. T 386.34 – .36 578. T 390.45 – .48 579. T 391.2 – .4 580. T 391.21 – .25 581. T 371.19 – .20 582. T 371.25 – .32 583. T 406.26 – .50 584. Exhibit 1 585. T 444.4 – .17 586. T 432.50 – 433.1 587. T 434.38 – .41 588. T 435.12 – .14 589. T 422.38 590. T 423.9 – .27 591. T 424.21 – .25 592. T 438.8 – .13 593. T 438.38 – .41 594. T 425.19 – .28 595. T 425.41 – .43 596. Exhibit F, Report of Dr Nicholas Silberstein dated 4 January 2012, pp 137 - 138 597. Exhibit F, Report of Dr Nicholas Silberstein dated 4 January 2012, p 137 598. Exhibit J 599. T 100.44 – .45 600. T 100.48 – .49 601. Exhibit J 602. Exhibit R, Report of Dr Gregory Carr, dated 16 January 2012, p 1 603. Exhibit R, Report of Dr Gregory Carr, dated 3 February 2016, p 12 604. Exhibit R, Report of Dr Gregory Carr, dated 3 February 2016, p 12 605. Exhibit F, Report of Dr Nicholas Silberstein dated 4 January 2012, p 137 606. Exhibit F, Report of Dr Nicholas Silberstein dated 4 January 2012, p 137 607. Exhibit F, Report of Dr Nicholas Silberstein dated 4 January 2012, p 137 608. Exhibit R, Report of Dr Gregory Carr, dated 16 January 2012, p 1 609. Exhibit R, Report of Dr Gregory Carr, dated 16 January 2012, p 2 610. Exhibit R, Report of Dr Gregory Carr, dated 16 January 2012, p 2 611. Exhibit R, Report of Dr Gregory Carr, dated 16 January 2012, p 2 612. Exhibit R, Report of Dr Gregory Carr, dated 16 January 2012, p 3 613. Exhibit R, Report of Dr Gregory Carr, dated 16 January 2012, p 3 614. Exhibit R, Report of Dr Gregory Carr, dated 26 August 2013, p 4 615. Exhibit R, Report of Dr Gregory Carr, dated 26 August 2013, p 4 616. Exhibit R, Report of Dr Gregory Carr, dated 26 August 2013, p 4 617. Exhibit R, Report of Dr Gregory Carr, dated 3 February 2016, pp 7 – 8 618. Exhibit R, Report of Dr Gregory Carr, dated 3 February 2016, p 7 619. Exhibit R, Report of Dr Gregory Carr, dated 3 February 2016, p 7 620. Exhibit R, Report of Dr Gregory Carr, dated 3 February 2016, p 8 621. Exhibit R, Report of Dr Gregory Carr, dated 3 February 2016, pp 13 - 14 622. Exhibit R, Report of Dr Gregory Carr, dated 3 February 2016, p 14 623. Exhibit 4.1, Report of Dr Lloyd Hughes, dated 12 March 2015, pp 1 – 6 624. Exhibit 4.2, Report of Dr Lloyd Hughes dated 21 March 2016, pp 1 – 3 625. Exhibit 4.1, Report of Dr Lloyd Hughes, dated 12 March 2015, p 3 626. Exhibit R, Report of Dr Gregory Carr, dated 3 February 2016, p 10 627. T 574.45 – .49 628. T 575.1 – .2 629. T 575.4 – .20 630. T 578.19 – .24 631. Exhibit 4.1, Report of Dr Lloyd Hughes, dated 12 March 2015, p 3 632. Exhibit 4.1, Report of Dr Lloyd Hughes, dated 12 March 2015, p 3 633. Exhibit 4.1, Report of Dr Lloyd Hughes, dated 12 March 2015, p 5 634. Exhibit 4.2, Report of Dr Lloyd Hughes dated 21 March 2016, p 2 635. Exhibit 4.2, Report of Dr Lloyd Hughes dated 21 March 2016, p 2 636. Exhibit R, Report of Dr Gregory Carr, dated 3 February 2016, p 10 637. Exhibit R, Report of Dr Gregory Carr, dated 3 February 2016, p 11 638. Exhibit 4.2, Report of Dr Lloyd Hughes dated 21 March 2016, p 3 639. T 353.18 – .20 640. T 353.25 – .26 641. T 355.4 – .5 642. T 354.50 – 355.2 643. T 357.45 – 358.14 644. T 363.29 – .30 645. T 363.33 – .36 646. T 364.24 – .33 647. T 364.42 648. T 365.6 – .8 649. T 365.13 – .16 650. T 365.23 – .25 651. T 365.35 – 366.9 652. T 368.8 – .21 653. T 368.44 – .46 654. T 570.20 – 571.1 655. T 571.30 – .34 656. T 574.9 – .22 657. T 574.7 658. Exhibit 4.1, Report of Dr Lloyd Hughes, dated 12 March 2015, p 3 659. T 575.2 660. Exhibit R, Report of Dr Gregory Carr, dated 3 February 2016, p 8 661. T 578.7 – .24 662. Exhibit 4.1, Report of Dr Lloyd Hughes, dated 12 March 2015, p 4 663. Defendant's Written Submissions, dated 26 April 2016 at [310] 664. T 363.38 – .50 665. Exhibit 4.2, Report of Dr Lloyd Hughes dated 21 March 2016, pp 1 – 3 666. T 343.49 – 344.1 667. T 365.35 – 366.1 668. T 488.37 – 494.30 669. Defendant's Written Submissions, dated 26 April 2016 at [318] – [322] 670. T 382.32 – .33 671. Exhibit R, Report of Dr Sarah Hughes, dated 5 September 2013, pp 17 – 18 at [VI] – [IX] 672. Defendant's Defence to Further Amended Statement of Claim, filed 5 April 2016 at [45] – [51] 673. State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445, 172 [21] (Spigelman CJ with Basten JA agreeing) 674. (2012) 248 CLR 417; [2012] HCA 57, 428 – 429 [33] – [34] (French CJ and Hayne J, with Kiefel J agreeing) 675. Defendant's Written Submissions, dated 26 April 2016 at [218] 676. (2014) 315 ALR 547; [2014] FCAFC 181 677. Defendant's Written Submissions, dated 26 April 2016 at [351] 678. See (2014) 315 ALR 547; [2014] FCAFC 181, 268 – 269 [87] – [88] (Besanko and Robertson JJ) 679. [2006] NSWCA 95 at [99] (Tobias JA with Mason P and Handley JA agreeing) 680. T 606.43 681. T 95.41 – 96.49 682. T 100.30 – .31 683. Defendant's Schedule of Damages; and Defendant's Schedule of Issues and T 668.27 – .30 684. Defendant's Written Submissions, dated 26 April 2016 at "Table A – Range of damages" 685. T 371.16 and T 393.45 – .47 686. T 494.19 – .23 687. T 98.45 – .49 688. T 606.42 – .46 689. T 612.26 – .31 690. The Plaintiff submitted this included the unwarranted assault: T 612 .41 – .45 691. T 41.48 – .49 692. T 41.49 – .50 693. T 41.45 and T 42.24 – .27 694. State of New South Wales v Zreika [2012] NSWCA 37 at [60] – [63] (Sackville AJA with Macfarlan and Whealy JJA agreeing) 695. (2003) 57 NSWLR 496; [2003] NSWCA 208; 504 – 505 [130] – [133] This was cited by Tobias JA in New South Wales v Delly (2007) Aust Torts Reports 81 – 920; [2007] NSWCA 303 at [80], [88] – [93] and [113] 696. [2011] NSWCA 13 at [33] and [68] (McColl JA) and [257] (Whealy JA) 697. (1962) 108 CLR 17; [1962] HCA 63, 184 [4] (McTiernan J) and 187 [3] (Owen J) 698. T 667.50 – 668.12 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: 17 January 2017