District Court New South Wales Medium Neutral Citation: Raad v State of New South Wales [2017] NSWDC 63 Hearing dates: 17-21 October 2016, 6-7 December 2016, 23 February 2017 Date of orders: 23 March 2017 Decision date: 23 March 2017 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) There is to be judgment for the plaintiff; (2) Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed judgment sum including interest; (3) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed; (4) Liberty to the parties to apply to vary the costs order in (3) above; (5) The exhibits may be returned after 28 days. Catchwords: Torts – assault – battery – false arrest – false imprisonment – malicious prosecution – lawfulness of police actions – whether arrest lawful Legislation Cited: Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW) Liquor Act 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: A v New South Wales (2007) 230 CLR 500 Bale v Mills [2011] NSWCA 226 Browne v Dunn (1893) 6 R 67 Cassell & Co Ltd v Broome (1972) AC 1027 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Croucher v Cachia [2016] NSWCA 132 Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 Danckert v Tonkin [2015] NSWSC 1570 Dowse v State of New South Wales [2012] NSWCA 337 Elleray v Rail Corporation NSW [2017] NSWCA 23 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Jones v Dunkel (1959) 101 CLR 298 R v Gabriel [2004] ACTSC 30 R v Phillips (1971) 45 ALJR 467 Ruddock v Taylor (2005) 222 CLR 612 Sangha v Baxter [2009] NSWCA 78 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Koumdjiev [2005] NSWCA 247 State of New South Wales v McMaster [2015] NSWCA 228 State of New South Wales v Robinson [2016] NSWCA 334 State of New South Wales v TD [2013] NSWCA 32 Varty v Director of Public Prosecutions (NSW) [2015] NSWSC 304 Woodley v Boyd [2001] NSWCA 35 Zaravinos v State of New South Wales (2004) 62 NSWLR 58 Category: Principal judgment Parties: Johnny Raad (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: A Canceri (Plaintiff) M Hutchings (Defendant) Solicitors: O'Brien Solicitors (Plaintiff) Henry Davis York (Defendant) File Number(s): 2015/00119450 Judgment 1. The plaintiff claims damages in relation to the conduct of police officers for whom the defendant is liable under the Law Reform (Vicarious Liability) Act 1983 (NSW) which allegedly occurred in the early morning hours of Sunday 10 June 2012 primarily around the vicinity of the Albion Hotel at 135 George Street, Parramatta, in New South Wales. The Amended Statement of Claim 1. By an Amended Statement of Claim filed in court with leave on 6 December 2016, the plaintiff brings claims for damages against the defendant in the torts of malicious prosecution (paragraphs 24-27), assault, battery and false imprisonment (paragraphs 28-30). Aggravated and exemplary damages are also sought in relation to each of the torts pleaded. 2. The important facts pleaded in the Amended Statement of Claim are as follows: 1. At about 12.30am on 10 June 2012 the plaintiff, Mr Johnny Raad, and his wife, Mrs Ann Raad, attended the Albion Hotel in Parramatta (paragraph 3); 2. At about 3.15am on 10 June 2012 the plaintiff and his wife approached a male security officer within the Albion Hotel enquiring about whether there was anywhere where food could be purchased. It is asserted that the security officer did not appear to understand the enquiry and the plaintiff then said to him words to the effect of "don't worry about it" (paragraph 4); 3. A short time later whilst the plaintiff and his wife were still inside the Albion Hotel, the same security officer approached the plaintiff and asked to have a word with him outside the hotel. The plaintiff followed the security officer outside and stood with the security officer at the entrance of the hotel (paragraph 5); 4. The security officer is alleged to have said to the plaintiff words to the effect "you are not going back in because you are intoxicated". It is asserted that the plaintiff advised the security officer that he was not intoxicated and it was his turn to drive that evening (paragraph 6); 5. The plaintiff then said he needed to get his wife and approached the entrance to the hotel. The security officer allegedly grabbed the arm of the plaintiff and said he could not go back in. It is said that a short time late the plaintiff's wife exited the hotel. The plaintiff was soon after allegedly approached by a security guard the plaintiff now knows as Ali who pushed the plaintiff in the chest with his chest and then grabbed the plaintiff's arm and yelled verbal abuse at the plaintiff (paragraphs 7-9); 6. As a result of the actions of the security guard Ali, the plaintiff requested security personnel in the area to call the police to report the assault on him by Ali (paragraph 10); 7. A short time later it is alleged Police Officers Frith and Blades exited the hotel and approached the plaintiff who told Officer Frith that he had been assaulted by Ali. The plaintiff was asked for identification by Officer Frith which was provided in the form of his New South Wales driver's licence (paragraphs 11-12); 8. Officer Blades then allegedly said to the plaintiff words to the effect "you will be getting a ticket". The plaintiff responded with words to the effect "what for, I have been assaulted?" Officer Blades is then said to have handed to the plaintiff's wife an infringement notice which alleged that the plaintiff had committed the offence of "fail to leave premises when required" (paragraphs 12-14); 9. The plaintiff then pleads that as he realised that the police were not taking his complaint seriously, he and his wife began walking away from the vicinity of the hotel entrance and walked for approximately 40 metres towards Harris Street. It is pleaded that Officers Gedeon, Blades, Restuccia and the security guard Ali then followed the plaintiff and his wife (paragraphs 15-16); 10. It is pleaded that Officer Gedeon approached the plaintiff and the plaintiff said to him words to the effect "you should have seen I wasn't intoxicated because we were there when you hugged your friend in the club". It is alleged that Constable Gedeon reacted to this comment by clenching his teeth. It is further alleged that Officers Blades and Gedeon then grabbed the plaintiff by the arms and handcuffed his hands behind his back (paragraphs 15-18); 11. It is alleged that the plaintiff was then escorted across the road by police and force was used by Officers Blades and Gedeon to place the plaintiff in the rear of a caged police vehicle. The plaintiff was then conveyed to Parramatta Police Station where he was introduced to the Custody Manager at approximately 4am on 10 June 2012. It is further alleged that at about 6am on 10 June 2012 Officer Blades approached the plaintiff and then said he could go (paragraphs 19-21); 12. Upon being released from custody it is alleged that the plaintiff attempted to make a formal complaint about how he had been treated by police. It is alleged that Officer Blades advised the plaintiff that he would have to wait until a supervisor arrived and when the plaintiff walked out of the police station to have a cigarette he was locked out of the police station and Constable Blades refused to re-open the doors to the police station (paragraph 22); 13. It is alleged that the plaintiff elected to have the infringement notice heard at court. The matter proceeded to hearing and on 23 January 2013 it is alleged that the charge against the plaintiff was dismissed by the Local Court at Parramatta. 1. In answer to the Amended Statement of Claim, the defendant in its Defence filed 23 September 2015, pleads in summary as follows: 1. It admits that the Crown is vicariously liable for the conduct of the police officers should the torts alleged in the proceedings be proved (paragraph 1); 2. It admits that the plaintiff and his wife were at the Albion Hotel at the times pleaded in the Statement of Claim (paragraph 2); 3. It does not admit the allegations in relation to what occurred prior to the arrival of the police (paragraph 3); 4. It says that the plaintiff was directed to leave the vicinity of the hotel on several occasions by Officer Blades and that the plaintiff was asked for identification and provided his New South Wales driver's licence (paragraph 4); 5. It says that the plaintiff failed to leave the vicinity of the hotel when directed by Officer Blades and was issued with an infringement notice for failing to leave the hotel (paragraph 5(c)); 6. It says that the infringement notice was handed to the plaintiff's wife as the plaintiff refused to take the infringement notice (paragraph 5); 7. It says that the plaintiff failed to leave the vicinity of the hotel and became argumentative and quarrelsome and Constable Blades assessed the plaintiff as intoxicated and that the plaintiff was subsequently handcuffed (paragraph 7); 8. It says that the plaintiff was escorted across Harris Street to a police caged vehicle. It pleads that the plaintiff refused to get in to the vehicle and was being argumentative and was resisting and then force that was reasonably necessary was used to place the plaintiff into the police vehicle (paragraph 8); 9. The Defence pleads that the plaintiff was conveyed to Parramatta Police Station at approximately 3.50am, arrived there at approximately 4am and was entered into custody at approximately 4.23am. It also asserts that the plaintiff was released from custody at approximately 4.53am to his wife (paragraphs 9-10); 10. It admits that Magistrate Marsden dismissed the charge of "excluded person remain in vicinity of licensed premises" on 23 January 2013 (paragraph 12); 11. The various tort claims alleged are denied. The defendant also denies that the plaintiff is entitled to any damages at all including exemplary and aggravated damages. It further pleads that at all material times the actions of the police were reasonable and lawfully justified under Section 77 of the Liquor Act 2007 (NSW) and Sections 99(3)(b), 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"). It is specifically pleaded that no more than reasonable force was used in the circumstances and that the plaintiff's detention/imprisonment followed the plaintiff's lawful arrest (paragraphs 14-17); 12. By way of further defence, the defendant pleads Sections 47-50 of the Civil Liability Act 2002 (NSW) ("CLA") on the basis that the plaintiff was intoxicated and contributory negligence should be found. 1. At the commencement of the final hearing, after identifying the relevant pleadings then relied on, the court brought to the attention of the parties the decision of the Court of Appeal in Croucher v Cachia [2016] NSWCA 132. In particular, the court indicated that this decision may have some bearing on the plaintiff's pleading of the tort of battery and whether it fell within Section 3B(1)(a) of the CLA on the basis that the battery alleged was "an intentional act that is done by the person with intent to cause injury" to the plaintiff. 2. Counsel for the plaintiff obtained instructions, and indicated that the plaintiff would plead first, that the police officers in question for whom the defendant was liable intended to cause injury to the plaintiff and, in the alternative, that the injury caused to the plaintiff was negligently caused by the police officers for whom the defendant was liable. This was reflected in the amendment in paragraph 28 of the Amended Statement of Claim. 3. It is clear from the Schedule of Damages handed up by counsel for the plaintiff, and the plaintiff's written submissions, that the primary damages sought by the plaintiff relate to alleged injuries to his knees which he asserts occurred when he was forcefully placed in the police vehicle for conveyance to Parramatta Police Station. It is claimed by the plaintiff that at the time he was handcuffed with his arms behind his back and when he was half way into the vehicle he was forcefully pushed from behind by police officers and landed heavily on his knees causing injury. 4. As stated above, it is not in dispute that the Magistrate in the Local Court found that the offence of "excluded person remain in vicinity of licensed premises" was not established and the charge against the plaintiff was dismissed on 23 January 2013 following a reserved decision. Preliminary comments in relation to the proceedings 1. As often occurs in cases where torts are alleged by arrested persons against police officers, there are starkly differing accounts between the plaintiff and his wife and the police officers for whom the defendant is vicariously liable as to what occurred after the plaintiff left the Albion Hotel and prior to and after the plaintiff's arrest in the early morning hours of 10 June 2012. 2. In order to determine the issues in dispute between the parties, it is necessary for the court to make factual findings and to decide which account or accounts it prefers as to what occurred. 3. In making its factual findings, the Court is not bound to accept any of that which a particular witness attests to and similarly may accept part only of a particular witness's evidence: Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [118]-[123]; Danckert v Tonkin [2015] NSWSC 1570 at [152]. Consequently, it does not follow from the fact that part of the evidence of a witness is rejected that other aspects must also be rejected and that is so even if it be found that the witness was lying: Sangha v Baxter [2009] NSWCA 78 at [155]-[156]; Croucher v Cachia [2016] NSWCA 132 at [129]. 4. In determining the important factual findings which must be made, the Court will take into account all of the evidence as well as other relevant matters including the following: 1. The events in question in these proceedings occurred over four years ago and there are likely to be deficiencies in witnesses' recollections, particularly in regard to the detail of what occurred and was said in the immediate vicinity of the Albion Hotel at the relevant time; 2. The plaintiff was allegedly very upset at the time in relation to his exclusion from the Albion Hotel and what he perceived to be the reaction of police at the time to his complaints of the assault. He had also consumed on his evidence a little more than one glass of beer at the time and his wife had had two alcoholic drinks; 3. There is CCTV footage of some of the events in question in the present case. Some considerable weight should be given to this evidence while conceding the limitations in it. Generally speaking, weight should be given by the court to contemporaneous records unless it is accepted that those records have been manipulated or doctored in some way or are erroneous or unreliable or relevantly incomplete; 4. The majority of the High Court stated as follows in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31]: "[31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical." 1. Some of the witnesses in the present case have already given evidence in the Local Court in relation to the charge against the plaintiff. This applies to the plaintiff, his wife, Senior Constable Blades and Senior Constable Frith; 2. The plaintiff has in substance by his version and the submissions which have been made on his behalf, alleged that the police versions of what occurred outside the Albion Hotel on 10 June 2012 have been invented and are erroneous, or at least exaggerated, particularly that of Senior Constable Blades. 1. I will now consider the significant evidence relied upon by each of the parties. The plaintiff's oral evidence 1. The plaintiff gave evidence that he was born in May 1969 and resided at Liverpool in Sydney with his wife, Ann Raad, and his two children. He said that he was educated to Year 10 at Punchbowl Boys High School and had worked in various family businesses as well as undertaking some work as an actor. He said that the family businesses had been businesses of various types including a fruit business and an amusement centre. 2. Mr Raad gave evidence in chief that on the evening prior to 10 June 2012 he had been at home with his wife and his child. He said that a baby sitter had arrived and after that his wife and he had rested before going out. During that day he had worked in the family business. 3. Mr Raad gave evidence that he and his wife left in their vehicle at about 11.30pm and after driving around for a while decided to go to the Albion Hotel. He said he drove the motor vehicle and he had not been drinking. 4. He gave evidence that he and his wife arrived at the Albion Hotel at Parramatta at some time after midnight. Mr Raad gave evidence in chief that the Albion Hotel only had one entrance which was accessed through walking up a long driveway. 5. Mr Raad said that when he and his wife arrived at the Albion Hotel they walked around, they danced a bit, he left on occasions to smoke and as he was driving, he only had drunk one glass of Victoria Bitter beer. He gave evidence that at about 3.20am he and his wife had been in the beer garden section and they asked a security guard if he knew where they could buy food: T17.24. 6. Soon after this, Mr Raad said that the security guard had followed them and had tapped him on the shoulder and asked to have a word with him outside the hotel: T 17.37. This was soon after he had purchased a second glass of Victoria Bitter beer. 7. The plaintiff gave evidence that he followed the guard outside the hotel and noted that the guard kept walking until he was some distance from the entrance to the hotel. The guard then said to him words to the effect that he was "intoxicated" and that he could not re-enter the hotel: T 18.11. The plaintiff stated to the guard that he was not intoxicated and he wanted to go and get his wife. The security guard indicated that he would go into the hotel to get her. 8. The plaintiff's wife then came out to join the plaintiff. Shortly after this time the plaintiff stated that another security guard came up to the plaintiff and acted in a very aggressive manner, swearing at the plaintiff and pushing the plaintiff with his chest and arms into the plaintiff's chest: T 18.24. The plaintiff indicated that the security guard who did this was a large man. 9. The plaintiff then gave evidence in chief that he asked the other security guards to call the police as he had been assaulted by the large security guard. The plaintiff said that he waited outside the entrance to the hotel for the police to arrive. At the time, he was waiting with his wife in the driveway which led to Harris Street. 10. The plaintiff gave evidence in chief that the police turned up and there were about five police officers. The plaintiff said he was approached by a person who he now understood to be Senior Constable Frith and he told Senior Constable Frith that he had asked for the police because he had been asked to leave the premises as he was intoxicated but he disputed that he was intoxicated and had been assaulted by a guard: T 19.33. The plaintiff said that at this time he noted that a female officer who he identified at Constable Restuccia was giggling and he asked her "what was funny". The plaintiff was asked for identification and he produced his New South Wales driver's licence: T 20.27. He then noticed that a constable who he later identified as Constable Blades was writing something down. He asked the constable what he was writing and he said "I am giving you a ticket": T 20.8. The constable then gave a penalty notice to the plaintiff's wife wrapped around the plaintiff's driver's licence. The plaintiff observed that this was the penalty notice which later became Exhibit F in the proceedings. 11. The plaintiff then gave evidence in chief that he and his wife started to walk down the driveway of the hotel property towards Harris Street. He then asserted that Constable Blades yelled out at him words to the effect "you are not going anywhere yet". The plaintiff then said that his wife said words to the effect to Constable Blades "make up your mind do you want us to go or not?": T 21.32. The plaintiff and his wife soon after proceeded to walk down the driveway and got to the end to Harris Street. The plaintiff said he did not cross the street but changed his mind because he became "paranoid" as the police were following him and he did not wish to cross the road to the park. He returned to the footpath: T 22.1. At this time he said the police had followed him and there were approximately four police officers there but not Constable Frith: T 22.31. 12. The plaintiff then said to an officer who he later understood to be Constable Gedeon words to the effect "you should have known I was not intoxicated as I saw you in the hotel near me when you hugged your friend". The plaintiff said that Constable Gedeon appeared to become upset at what he had said and he made a growling noise at the plaintiff and clenched his teeth: T 22.49. The plaintiff said he was referring to an incident where he had seen police within the Albion Hotel when he was there with his wife and he had noted that Constable Gedeon had hugged a friend who was not in uniform: T 23.11-.19. 13. The plaintiff gave evidence in chief that after he had said this to Constable Gedeon and the constable had growled at him, officers came at him from "every direction": T 27.28. He said that there were several officers and they arrested him and handcuffed him behind his back. He gave evidence that he offered no resistance to the police but asked "why are you arresting me?": T 27.50. The plaintiff gave evidence that he received no response to this question. He said that he asked the same question to another female police officer who turned up and no response was received again. The plaintiff gave evidence in chief that he was taken across the road to a police vehicle which was situated near the park and was placed in the vehicle. The plaintiff said that at this time he was concerned whether his wife had money to obtain a taxi. He said that as he was halfway into the vehicle he asked his wife whether she had any money and Constable Blades said to her words to the effect that she should have enough money as the plaintiff had been buying her drinks all night: T 28.46. The plaintiff said that at this time he was pushed very hard from behind as he was halfway into the vehicle having stepped up and he landed heavily on his knees and experienced severe pain: T 29.20. He said the doors of the police vehicle were then closed behind him. 14. The plaintiff indicated that he found it very difficult having been pushed into the vehicle onto his knees and being handcuffed from behind to get up from that position in the vehicle: T 29.29. 15. The plaintiff gave evidence that he was then taken to Parramatta Police Station and after his personal belongings had been taken he was placed in a cell. He said he could not describe how he felt following his treatment by the police and he had never been treated that way before: T 29.42. He gave evidence that the handcuffs were taken off him at the station. 16. The plaintiff then gave evidence in chief that he stayed there until about 5am when his wife arrived at the station. The plaintiff said that at about this time Constable Blades appeared at the cell door and said words to him to the effect "You seem like a nice guy. You can go.": T 30.10. The plaintiff then said he was ushered out from the cell and said words to the effect "I want to make a formal complaint to your supervisor". Constable Blades then allegedly said to him there is no supervisor here at the present moment but he will be here soon. The plaintiff indicated that he would wait outside and have a smoke until the supervisor arrived. He and his wife then left the police station and at that stage he was locked out and could not get back in. He said that his wife started to cry at this stage and he drove them home: T 31.17. 17. The plaintiff gave evidence that he had lost the penalty notice at some stage. He then contacted the police station and asked whether they had found it and was told that a reminder notice would be sent out to him. He then said that he received a letter with the original penalty notice in it. This was about two weeks after 10 June 2012: T 32.6. The plaintiff decided that he wished to dispute the penalty in court and represented himself in proceedings in the Local Court at Parramatta before Magistrate Marsden. The plaintiff gave evidence that Constable Blades and Senior Constable Frith gave evidence for the prosecution in the Local Court proceedings. He stated that after a hearing at which his wife and he gave evidence the Magistrate reserved his decision and dismissed the proceedings on 23 January 2013: T 33.19-.24. 18. The plaintiff said that he found the experience of representing himself in the Local Court to be "extremely stressful" but he felt he had to do it. 19. The plaintiff gave evidence that prior to the incident on 10 June 2012 his knees had been "fine" and he had had no "major issues" with either one of them: T 36.23. He could squat and lift heavy weights without problems. 20. After the incident on 10 June 2012 the plaintiff gave evidence that he had problems with his knees: T 34.22. They became a lot worse after the night in question and started to lock up. He found the pain on occasions to be extreme and there was locking and clicking in his knees. He found it difficult to squat and sometimes it was difficult to walk. He also found lifting difficult as pressure was placed on the knees. He had lost some weight which helped and had some physiotherapy which assisted to some degree. 21. At the time the plaintiff worked in retail in his family business and found it a lot more difficult to carry large boxes for the purposes of restocking. He gave evidence that his family business closed down in 2013: T 35.45. Since that time he has been looking after his children and his wife has been working: T 35.48. He hoped in the future to operate a business in the retail or food industries. 22. The plaintiff was subjected to extensive cross-examination which occurred over about two days. 23. In very general terms, the plaintiff maintained the account of the incident which he had given in his oral evidence in chief. 24. The plaintiff was first cross-examined in relation to the events which occurred when he arrived at Parramatta Police Station after having been arrested. The plaintiff gave the following evidence in cross-examination: 1. When he arrived at the police station he was taken to the custody room where he dealt with a female police officer who was the Custody Manager. He agreed that the police officer asked him a number of questions and he was then placed in a cell: T 37.33-.47. The plaintiff gave evidence that he said to the Custody Manager words to the effect "this is wrong" before he was locked in a cell. He said he was very unhappy and he asked "why am I here?": T 39.8. The plaintiff said he did not recall the detail of the exchanges between him and the Custody Manager at the time: T 39.22. The plaintiff disputed that he was told by the Custody Manager that the reason he had been arrested was because he had failed to leave the vicinity of licensed premises, being the Albion Hotel: T 40.1. The plaintiff said in cross-examination that he only found out why he had been arrested when he had to go to court: T 40.41; 2. The plaintiff was cross-examined in relation to the pain he claimed he experienced in his knees when he was placed in the police van. He said he did not report the painful knees to the custody manager when he arrived at Parramatta Police Station as the police were not listening to him and he was left by himself in the cell after the Custody Manager dealt with him: T 113.4. 3. The plaintiff then said that Constable Blades came to the cell and said to him words to the effect "you seem to be a nice guy, you can go": T 41.14. He said that Constable Blades opened the cell door and was let into a corridor where the Custody Officer and another male police officer were present: T 41.38. The police "hurried" the plaintiff out of the corridor and he saw that his wife was in the reception area: T 42.6; 4. The plaintiff then gave evidence that Constable Blades locked the public entrance to the police station after he and his wife had left: T 43.24. When asked how he knew that Constable Blades had done this and would not open the doors, the plaintiff gave evidence that he saw Constable Blades and a fellow officer apparently laughing at him. He said he connected the laughter to Constable Blades' locking him out of the police station so he could not complain: T 43.38-.48; 5. The plaintiff gave evidence that he then returned to the Albion Hotel to get his keys from the cloakroom area at the hotel. The plaintiff's car was parked in the vicinity of the Albion Hotel and after speaking to a security guard the keys were returned to him. The plaintiff gave evidence that he had surrendered his keys to the custody of the hotel staff when he arrived at the hotel: T 44-45; 6. It was put to the plaintiff that he had made complaints in relation to the conduct of the police to the police Custody Manager on his arrival. The plaintiff said he might have done so but he could not remember doing it: T 48.5. It was then put to the plaintiff that the female police Custody Manager had told him to put his complaint in writing and he said he could not recall that being said by her: T 48.20; 7. The plaintiff gave evidence that about two days after 10 June 2012 he spoke to an Inspector Bonello: T 49.33. He agreed that Inspector Bonello said that if the plaintiff wished to make a formal complaint he should put it in writing but he should first concentrate on contesting the charge against him and plead not guilty if that is what he wished to do. The plaintiff then said that he could not remember the details of what Inspector Bonello had said to him: T 50.43. 1. The plaintiff was cross-examined in relation to his prior contact with police officers. He said that he had never been handcuffed before or thrown into a police wagon: T 50.48. He said he had dealt with police some 22 years before and had been convicted of an offence. He said he could not remember the details of whether he had been arrested but knew he had never been handcuffed or taken by a police car to the police station in custody. When asked whether he agreed that he had been convicted for receiving stolen goods the plaintiff said that that was a "big mistake" and was a long time ago and he had forgotten the details of it: T 51-52. 2. The plaintiff was then cross-examined in relation to what occurred at the Albion Hotel prior to his arrest. The following more significant matters were raised in relation to this aspect of the cross-examination: 1. It was put to the plaintiff that when he was told he could not remain in the premises or re-enter the premises after he initially left the Albion Hotel that he argued with security staff. The plaintiff denied this and he said that he told the security officer that he was not intoxicated: T 54.16; 2. In answer to questions in relation to his consumption of alcohol at the Albion Hotel between 12.30am and 3am, the plaintiff stated that he had only drunk one glass of Victoria Bitter beer and had ordered a second glass shortly before the security guard tapped him on the shoulder and only had a few sips of that beer: T 58.31-.42; 3. It was put to the plaintiff that after he exited the hotel with the security officer and was told that he could not go back into the hotel that he attempted to go back in. The plaintiff agreed with this and said that he attempted to go back in to get his wife: T 59.35; 4. The plaintiff conceded that he waited approximately 10 minutes for the police to arrive after he asked the security guards to call the police. Whilst he was waiting he said he spoke to a friend called Jason and to one of the security guards. He agreed that he was waiting for the police in the driveway and whilst he was waiting he was on Albion Hotel premises: T 66.9; 5. The plaintiff was asked what the police said when they arrived. The plaintiff gave evidence that the person he now knows as Senior Constable Frith said to him words to the effect "what's happening?": T 66.43. He then said that he started to tell the police what had occurred. The plaintiff denied that any of the police had identified themselves by name or rank or that they were from Parramatta Police Station: T 67.1-.7. The plaintiff said that during the whole night leading up to when he was placed in custody no police officer had identified themselves or said they were from the Parramatta Police Station: T 67.28; 6. The plaintiff then said that he noticed the police officer who he now knows to be Constable Blades writing something up. The officer said to him: "You are getting a ticket" for "failing to leave": T 67.37-.48. The plaintiff indicated that he said to the officer: "I have been waiting for you": T 67.48. The plaintiff gave evidence that the first time he was told he was obligated to leave the area was after his wife had been given the ticket by Constable Blades wrapped around his licence: T 68.38. The plaintiff said that he took the ticket and read it and that told him what the ticket was for: T 69.23-.28; 7. It was put to the plaintiff that Constable Blades upon arrival told him to calm down, take deep breaths and that there was no need to get worked up: T 72.3. The plaintiff denied that this was spoken to him. He also denied that he told Constable Blades that he did not know where his wife was: T 72.6. He said that his wife was already out when the police arrived at the hotel. He also denied that Constable Blades said to him that it was an offence to remain on the premises after he was excluded: T 72.26; 8. The plaintiff was cross-examined in relation to him mentioning the name of a senior police officer who he knew and was told by one of the police officers "don't throw names at us. It won't help you". The plaintiff conceded that he had mentioned that he had known a senior police officer because he wished to indicate that he was not a troublemaker: T 73.8. The plaintiff said that the police showed no interest in his account of the assault on him and did not take notes. He said his intention was to tell the police what had occurred to him and then leave the premises: T 73.49-74.23; 9. It was put to the plaintiff that after he departed the premises he then came toward the entrance to the Albion Hotel and he denied that: T 74.48. It was put to the plaintiff that Constable Blades had told him that he was obliged to leave the area and that he replied in words to the effect "I don't have to leave, I know the law". The plaintiff denied this: T 75.50. The plaintiff also denied that Constable Blades had said to him that if he refused to leave the premises he would get a ticket and also denied that any police officer had told him he was obliged to go 50 metres away from the licensed premises: T 76.37-.49; 10. It was put to the plaintiff that he did not leave the premises after he was given the ticket by police. The plaintiff said that he walked 30 metres down the driveway with his wife and the police followed him. He arrived at the footpath and went to cross the road but he became "really worried" as there was a park on the other side and he was concerned that the police were following him. He said that he was worried that "something is going to happen next": T 77.4-79.25. He agreed that he was upset and had become more upset about what had happened following the assault and being given the ticket: T 79.28. He said he formed the view that it was better that he not cross over the road to the park. The police were very close to him at this time: T 79.45; 11. The plaintiff said that Constable Blades said to him "I am going to get you a taxi" and that he replied "I don't want a taxi". The plaintiff agreed that he stepped back onto the footpath from the roadway: T 81.39. 12. It was at this time that the plaintiff claimed he had the conversation with Constable Gedeon about seeing him hug a person within the bar area when the plaintiff had been in the hotel. The plaintiff said Constable Gedeon growled at him and the police "swarmed" around him and arrested him: T 105.15-.38. The plaintiff denied that he was told words to the effect "you are under arrest for failing to quit and being intoxicated": T 84.29. The plaintiff said that he had no idea why he was being detained: T 84.39. 13. The plaintiff gave evidence that when he was arrested by the police officers there were five and "maybe more" officers involved. The plaintiff said that he was "attacked" and that all the officers "grabbed" him. He said the way they arrested him was as if he had been "rumbled": T 106.1-.21. 14. The plaintiff gave evidence that he felt paranoid at the time in relation to the events which had occurred at the hotel. He said he did not know why he was being treated the way he had been treated. He agreed that he was keen to say to both the security guards and the police that he had done nothing wrong and that he was not intoxicated. He denied that he told police that he had been kicked out for no reason: T 79.14; T 146.21; 15. It was put to the plaintiff in cross-examination that when he was on the footpath shortly before he was arrested that he was speaking loudly to police and asserting a right to go back into the Albion Hotel. He denied this although he agreed that he was very upset: T 238.26-239.1. It was further put to Mr Raad that Constable Blades said to him words to the effect: "I am Constable Blades from Parramatta Police Station. I am giving you a formal direction to the leave the hotel. You must leave the 50 metre radius of the hotel and you cannot return to the hotel for the next 12 hours. If you don't leave now, you will be arrested.": T 239.6-.15 The plaintiff denied that this direction was given to him or that he said words to the effect "I am not going": T 239.19; 16. It was put to the plaintiff in cross-examination that he did not witness Constable Gedeon hugging a male patron whilst a group of police officers were standing in the Albion Hotel near the bar area where the plaintiff was standing with his wife at a table: T 242.50-245.29. The plaintiff rejected this and said that he clearly saw the embrace where Constable Gedeon was in full uniform and the male patron embraced was in casual clothes: T 244. 1. An important aspect of the plaintiff's evidence was what occurred when he was placed in the police van after having been arrested and put in handcuffs with his hands behind his back. There were various versions given: 1. In chief the plaintiff gave the following evidence: "Q. What happened? A. They proceeded to put me in the vehicle and my wife was there and I just had to make sure that my wife's going to be okay, if she had any money because she was being left by herself behind. Q. Where was your wife, was she near there-- A. She, she was standing there as well. Q. You still had your hands handcuffed behind your back? A. Correct. Q. You got into the vehicle? A. Yes I was sort of halfway in. Q. Can you describe how that occurred? A. I was halfway in the vehicle and I was still asking about my wife, if she had any money, I was worried about her, and then Constable Blades made the comment of - to my wife, not to myself - that "You should have enough money, he's been buying you drinks all night". Q. What happened after that? A. And that's when they pushed me really hard. I don't know, I don't— Q. Do you know who it was that pushed you? A. I don't know, I don't know. Q. Was it a push from behind? A. Yeah, well I was sort of sideways so I was pushed from the side really, like, I think it was more than one. Q. When you were pushed where were you? A. I was half - my half body was in the half of it, like sort of entering the vehicle, half of it. Q. Do you have to step up to get into the-- A. Yes, yes you do I think, yes. Q. --into the vehicle? A. From memory that's correct yes. Q. What happened next, did you remain on your feet? A. No, I landed on my knees and I had a, like it was very painful and I had trouble getting up. Q. Where did you feel the pain and discomfort, was it in one knee or both knees? A. It, it was - I think it was initially I couldn't tell where the pain - it was like one but it was - they were both painful at the end. Q. I take it the door was closed and you were taken away? A. Yes and I had to try to get up myself. It was very hard because I was a lot bigger then too. Q. You were a lot bigger then? A. Yes I was like 12 kilos more than what I am now." (T 28.29-T 29.33) (emphasis added); 1. Further consistent evidence was given at T 61.31-T 62.12; 2. Later in his cross-examination the plaintiff said the following at T 111.36-T 112.26: "Q. You say that you were halfway in? A. Yes and I was speaking to my wife to make sure that she's got money. Q. So you were speaking to your wife and halfway into the custody compartment? A. That's right and that's when I was pushed. Q. Coming to that. You say you were pushed? A. That's correct. Q. But you can't tell his Honour who pushed you? A. No but it was more than one. Q. How do you know that? A. Because the way it was, it was like there was a lot of force behind it. It wasn't just one officer, I don't think it was one officer. Like, you'd have to - unfortunately the footage, you can't see it because of the camera view that they've used but yeah, a different camera would have showed it probably. Q. How many do you say-- A. I don't know. I honestly can't give you a number. I won't say something that I'm not sure of it - I'm not sure. Q. But you're sure it's more than one? A. It felt like it. It felt like it was more than one, yes. I was still speaking to my wife at that time and then he just mentioned that, "You should have enough money to - he's been buying you drinks all night," that's what he said to her and then they pushed me in straight after that. As soon as he said that I went, I went flying inside. Q. Flying? A. Yeah, on my knees, yeah, pushed, yeah. Q. You landed on your knees? A. Yes, I-- Q. You didn't fall over, did you? A. Sorry? Q. You didn't fall over, did you? A. No, I landed on my knees sideways, yes." (emphasis added); 1. At T 228.30-.33 the plaintiff said as follows: "Q. At no point were you pushed into the police vehicle with anyone's intention to harm you? A. I don't know what their intention was, I don't know what's in their mind, but I was pushed."; 1. The plaintiff was further cross-examined about this matter towards the end of his cross-examination: T 256.7-259.29. He gave evidence that his wife was in the immediate vicinity of the door of the police vehicle when he was placed in it. The plaintiff said he was pushed into the vehicle immediately after he had the conversation with his wife about money and Constable Blades said words to the effect: "You should have money; he has been buying you drinks all night": T 257.23-.36. The plaintiff expressed the view that Constable Blades was one of the persons who pushed him but he did not see the identity of any other officers who may have been involved in him being pushed into the police vehicle: T 257.42-.47. The plaintiff gave evidence that he was pushed into the vehicle while he was turning around and speaking to his wife: T 258.18. He denied the suggestion that Constable Blades had not pushed him: T 258.47. The plaintiff also disagreed with the suggestion that no-one "threw" him into the vehicle: T 259.29. 1. The following matters including apparent inconsistencies were noted in the plaintiff's evidence: 1. At T 19.48 the plaintiff said that Constable Frith who approached him first outside the entrance to the Albion Hotel said "nothing at all to him". At T 66.42 the plaintiff inconsistently gave evidence that Constable Frith said to him "what's going on here?" or "what's happening?"; 2. The plaintiff gave inconsistent evidence in relation to the extent of his conversation with Constable Blades outside the Albion Hotel. At one point he said he did not speak to Constable Blades at all (T 71.40). At other points in his evidence the plaintiff gave evidence that he asked Constable Blades what he was doing when he was writing down something and he said that "I am giving you a ticket": T 20.5-.10. Later, the plaintiff gave evidence that Constable Blades had asked him for his driver's licence: T 20.27. On another occasion the plaintiff said that Constable Blades told him that he was getting a ticket for "failing to leave": T 67.47. At another point in his evidence the plaintiff said that after he was given the ticket he was told by Constable Blades that he had "to leave the area because [he] had been excluded from licensed premises": T 68.38. Later, the plaintiff gave inconsistent evidence in relation to that matter: T 69.24-.35. The plaintiff's recollection was poor in relation to this central matter of what he was told by Constable Blades at about the time he was given the ticket; 3. The plaintiff gave significant evidence about his state of mind on the night in question. He initially said he was getting "very paranoid" (T 22.4). He later said he was "worried", "paranoid", "upset" and "very upset": T 22.25; T 59.18; T 82.34-.46. The fact that the plaintiff was extremely worried and perceived himself as being "paranoid" is established by his evidence that he did not wish to cross the road to the park because he was worried that something might happen to him: T 78.4-T 79.41; 4. The plaintiff denied in cross-examination that the police appeared to him to be following him to ensure that he left the vicinity of the Albion Hotel. He also denied that he had been told on many occasions by the police officers to leave the vicinity of the hotel both before he was given the ticket and after he was given the ticket: T 203.6; T 210.10; T 239.15; 5. It was put to the plaintiff in cross-examination that he never complained to the New South Wales Police in relation to an assault by a security guard. The plaintiff denied this and said that he made the complaint in the driveway of the Albion Hotel as soon as the police turned up following his request: T 147.13-.21. The plaintiff did not give the detail of what he said to the police on this issue; 6. The plaintiff conceded in cross-examination that he was told more than once that he could not re-enter the premises after he had exited: T 167.39; 7. The plaintiff's evidence in relation to his conversation with Constable Gedeon which immediately preceded his arrest varied. At one stage the plaintiff said that he mentioned to Constable Gedeon the fact that Constable Gedeon had hugged a friend in the night club: T 27.24. At another stage in his evidence the plaintiff said that he "walked up to" Constable Gedeon and had the conversation with him: T 22.42. The film which is Exhibit 1 clearly shows the plaintiff walking away from the club after he had proceeded down the driveway and then returning to the group of police officers and having a further conversation with them. This is inconsistent in my view with the plaintiff leaving the vicinity of the premises; 8. The plaintiff gave evidence that he believed that the Custody Officer at Parramatta Police Station asked him "a series of questions": T 37.33-.47. Later the plaintiff said that he could not remember whether he was asked any questions by the Custody Manager when he arrived at the police station: T 114.25. He then soon after, changed this evidence to say that he was asked whether he had anything sharp on him: T 114.30; 9. On the second day of the hearing the plaintiff was asked questions in relation to his recollection of what he was asked by the Custody Manager upon arriving at Parramatta Police Station. The plaintiff initially said that he could not recall being asked any questions by the Custody Manager and denied that he had refused to answer questions. This should be contrasted with the plaintiff's evidence at T 114.30 where the plaintiff said: "A. No they just asked me if I've got anything sharp on me and all that sort of stuff and they - he - and I told him, "Is it all right if I leave my belt on because my pants will fall down?" and that's about it, and they just took my stuff. That's the only questions. They asked me if I had anything on me." 1. The plaintiff was then taken to his evidence at T 37.33-.47 when he said he believed he answered a series of question from the Custody Manager. Then the plaintiff said he recalled one question which he was asked: "Do you have anything on you?" Other than this, the plaintiff said that he did not recall being asked questions although he conceded the possibility that he was asked a number of questions. On being pressed, the plaintiff gave clear evidence that he did not recall being asked questions apart from the one referred to above: "Do you have anything on you?": T 120.30. These inconsistencies appear to show that the plaintiff has a poor recollection of what occurred when he arrived at the Parramatta Police Station and had initial contact with the Custody Officer; 2. At T 38.27 the plaintiff said that he never saw the Custody Manager at Parramatta Police Station again after he was locked up in his cell. This should be contrasted with his evidence at T 41.38 and T 42.13 that he later saw the Custody Manager when he was released from the cell; 3. The plaintiff gave evidence that he did not argue with the security staff after he left with the first security officer: T 54.13‑43. Film which is part of Exhibit 1 clearly shows the plaintiff spending a number of minutes apparently remonstrating with the security guards about his treatment before the alleged assault; 4. Further, the plaintiff agreed that he attempted to re-enter the hotel to get his wife: T 59.35; 5. The plaintiff gave evidence that his conversation with the security staff was very short soon after he left the premises: T 63.26-.50. The film which is Exhibit 1 shows the plaintiff apparently remonstrating with the various security staff for a period far in excess of 30 seconds: See also T 64.17-.23; 6. At T 74.5-.35 the plaintiff gave evidence that his intention was to leave the premises eventually after he had pleaded his case with police. The film Exhibit 1 shows the plaintiff spending considerable time talking with the police and then reluctantly leaving down the driveway and coming back to remonstrate with the police in the footpath area; 7. On a number of occasions the plaintiff gave evidence that he was never told why he was arrested: T 84.31. However, he later conceded that the Custody Manager might have told him the reason for his arrest: T 84.47; 8. The plaintiff gave evidence that the police officers were in the club for over an hour in the nightclub area: T 87.48. This is inconsistent with the film that shows the police officers entering through the casino entrance a relatively short period before the plaintiff was excluded; 9. The plaintiff seems to have misunderstood his obligation to leave the vicinity of the Albion Hotel premises. His evidence seems to suggest that if he was on the footpath he was beyond the area where he was restricted: see T 100.46-T 101.33; 10. The plaintiff gave evidence that he believed the police arrested him because of what he said to Constable Gedeon about hugging his friend in the bar (T 104.44) whereas later he said he did not really know why he was arrested: T 105.21; 11. The plaintiff gave contrasting evidence in relation to what occurred with him when he was arrested. He said the police "swarmed" on him (T 105.26) but later gave evidence that they "attacked" him (T 106.4). He also used the word "rumbled": T 106.7. The film in Exhibit 1 is inconsistent with the police "attacking" him as opposed to the police arresting him on him walking back towards the police near the entrance to the hotel driveway: see also T 109.41. 12. At T 78.1-T 79.45, the plaintiff gave as his reason for not crossing the road that he was worried about crossing to the park because something may happen to him and he wanted to be safe. However, on the second day of the trial the plaintiff gave evidence that he came back because his wife had not followed him and this was the only reason for returning to the footpath having started to cross Harris Street: T 216.35. This is a clear inconsistency in the plaintiff's account of his reason for returning towards police officers at the entrance to the driveway of the Albion Hotel. 1. I was able to view the plaintiff closely in giving his oral evidence over a period in excess of two days. The plaintiff was clearly still very upset and indignant in relation to what he perceived as his poor treatment by the Albion Hotel guards and police officers on the morning of 10 June 2012. At the commencement of his cross-examination, the plaintiff asserted that his recollections of the events of 10 June 2012 were "pretty good": T 36.47. At the end of the cross-examination it was put to the plaintiff that in the light of his cross-examination he would accept that his memory was not complete of the events. The plaintiff conceded that there might be some aspects that he could not remember of the night in question: T 254.26-.42. He confirmed that he had spent a lot of time thinking about the matter, had discussed it with his wife and believed that the video footage supported his account. However, he accepted there were other interpretations available of the video footage: T 255.22. 2. In my view, the plaintiff essentially impressed as an honest witness who was attempting to give his best recollections of the events of 10 June 2012 as he recalled them. I do not consider that he was being deliberately dishonest in giving his evidence or that he was knowingly untruthful. He struck me as making every attempt to tell the truth and would make concessions on occasions, but often after considerable cross-examination. The plaintiff conceded on a number of occasions that he did not recall the detail of the events or the conversations he was party to of 10 June 2012. Examples include T 147.48; T 173.41; T 187.7; T 197.18; T 200.28; T 210.19. 3. It is clear to me, however, that the plaintiff was very upset, worried and distressed on the morning in question. He conceded as much in his evidence: T 78.10-79.45; T 146.21; T 146.24; T 186.25-.30; T 186.50-187.48. The plaintiff even described himself as becoming "paranoid" at the time: T 146.21. He was indignant in relation to being excluded from the hotel as he perceived it to be unwarranted. I think it very likely that he did complain frequently and loudly in relation to his exclusion both to the security officers and to the police. This in my view is confirmed by the film footage which will be discussed further below. 4. I consider it also likely that the plaintiff complained with a loud voice and could probably reasonably be interpreted at the time as being argumentative and quarrelsome both to the security staff and to the police. I also think it likely that the plaintiff was so intent on expressing his view of what had occurred or as he described it, "pleading his case", that he did not hear everything that was said to him by either the security staff but, more likely, the police officers. 5. I therefore believe that the plaintiff's evidence should be approached with some caution despite my impression that he was attempting to be honest in giving his evidence. I do not accept the defendant's submission that the plaintiff is an unreliable witness on all matters: submissions paragraph 8. However, the matters I have set out above indicate to me that I should be cautious in accepting his evidence alone on a central matter. The evidence of Mrs Ann Raad 1. Mrs Ann Raad, the wife of the plaintiff, gave oral evidence in the proceedings. 2. In general terms, Mrs Raad's evidence was consistent with the plaintiff's evidence although she agreed that she did not hear all of the conversations which occurred once the plaintiff had left the Albion Hotel. 3. Mrs Raad gave the following relevant evidence: 1. During the course of the night she drank two glasses of Moscato wine. The plaintiff from her observation had purchased two glasses of Victoria Bitter beer. Her husband had purchased the second glass of beer shortly before he was approached by the security guard: T 277.47; T 278.1; 2. Mrs Raad confirmed the plaintiff's evidence in relation to the discussion with the security guard concerning the availability of food: T 278.20; 3. Mrs Raad gave evidence that when she emerged from the hotel she said to her husband, "What's wrong" and that her husband replied "I am not allowed to go back in". Mrs Raad said that she replied, "Why?". The plaintiff then said words to her to the effect that he did not know: T 279.9; 4. Mrs Raad gave evidence that soon after one security guard approached the plaintiff in an aggressive manner. He said something to the plaintiff in what appeared to be the Arabic language and pushed the plaintiff using his chest and shoulder. At the time she was close to the plaintiff and this occurred in the front entrance area outside the hotel: T 279.9-.30. Mrs Raad gave evidence that the plaintiff then asked her to call for the police and they waited for the police to arrive: T 279.32; 5. Mrs Raad then gave evidence that police officers emerged from the hotel from the poker machine area door a few metres away from the hotel entrance and the plaintiff began to explain to the police that he had been assaulted: T 280.6-.40; 6. After some time one of the police officers decided to write a ticket and gave it to Mrs Raad which she then gave to the plaintiff. The ticket was provided with the plaintiff's driver's licence: T 280.43-281.20; 7. Mrs Raad said that she and the plaintiff then decided to leave and walk down the driveway. The plaintiff soon after said something to the police officers which upset them and the plaintiff was arrested (T 281.23-.29). She gave evidence that the officers had followed the plaintiff and her down the driveway to the footpath area. Mrs Raad said that she was really nervous at this time and was upset (T 283.1); 8. Mrs Raad gave evidence in chief that the plaintiff was handcuffed behind his back and was taken across the road to the police car. Mrs Raad confirmed that she could not hear everything that was said by the police to the plaintiff (T 283.37); 9. Mrs Raad confirmed the plaintiff's evidence that he asked her whether she had money and she also confirmed Constable Blade's response (T 283.40). Importantly, she confirmed in her evidence in chief that the police officers pushed the plaintiff into the police vehicle. She identified the pusher as Constable Blades and confirmed that he was wearing his badge: T 284.1-.12); 10. Mrs Raad was cross-examined in relation to the number of times that she had discussed the matter with the plaintiff and she confirmed that it was possible that she had discussed the events of the night with the plaintiff on more than one occasion, particularly after the Local Court proceedings had completed: T 284.41-286.2. Mrs Raad confirmed that she had seen the video footage of the events on 10 June 2012, although this was looking over the plaintiff's shoulder when she saw it rather than sitting down and looking at it in detail: T 286; 11. Mrs Raad conceded that when the plaintiff followed the guard initially out of the hotel she was "intoxicated": T 289.19; 12. Mrs Raad assessed the time between her stepping out of the hotel and the assault made on the plaintiff to be less than a minute: T 292.11. The film (Exhibit 1) suggests this assessment to be fairly accurate; 13. Mrs Raad confirmed that at this time the plaintiff was upset, speaking loudly, trying to explain his position and using his hands whilst he was talking: T 292.13-293.23; T 296.4-.18. In cross-examination Mrs Raad confirmed that after the plaintiff had been pushed by the guard that he said words to the effect, "Why are you doing that?": T 295.20. She also confirmed in cross-examination the plaintiff had asked her to call the police: T 295.29. She said she did not do this because she did not want to leave the plaintiff; 14. In cross-examination Mrs Raad claimed that she looked at the name tags of the police officers who first arrived being Officers Frith, Gedeon, Restuccia and Blades and memorised their name tags. However, Mrs Raad confirmed that she had seen Exhibit B where the plaintiff had placed names on certain officers in the still photograph of the video footage prior to the proceedings: T 297.43-299.9; 15. In cross-examination Mrs Raad confirmed that Constable Blades came out to her when she was in the Parramatta Police Station reception area and said to her words to the effect, "I will release Johnny to you". He had previously asked her for identification which she had produced: T 301.40; T 302.44. She accepted that she had agreed to take care of her husband: T 303.1; 16. Mrs Raad agreed in cross-examination that when Constable Blades started to write the ticket she and the plaintiff had decided to leave the Albion Hotel: T 303.43-304.20. She said that she did not hear the police saying to the plaintiff that he was required to leave: T 304.29. She confirmed that she could hear some of the words that the police were saying to the plaintiff but others she could not hear: T 305.6-.10. Mrs Raad confirmed that when they decided to leave Constable Blades said words to the effect, "Don't go yet because I have got to give you the ticket": T 306.24. She confirmed the plaintiff was not happy to receive the ticket: T 306.38; 17. Mrs Raad confirmed that the plaintiff had said something to Constable Gedeon which appeared to upset him and that the plaintiff was arrested and handcuffed soon after: T 306.49-307.9. She said she did not hear what the plaintiff had said but after he was handcuffed he said words to the effect that he "had done nothing wrong": T 307.19; T 307.41; 18. Mrs Raad denied that the police had told the plaintiff repeatedly that remaining at the Albion Hotel was an offence: T 308.37-.47. She also said that she did not hear Constable Blades say to the plaintiff previously words to the effect, "You will now receive a ticket for failing to leave a licensed premises": T 309.17; 19. Importantly, Mrs Raad confirmed the evidence of the plaintiff being pushed into the back of the vehicle after he had been arrested. In her evidence Mrs Raad used various descriptions including "push", "chuck" and "thrown": T 315.36; T 315.43; T 319.20. She said there were two male officers who did this, one of whom was Constable Blades. She confirmed that she was in the immediate vicinity of the side of the vehicle facing Constable Blades when the plaintiff was pushed into the vehicle. Mrs Raad said that the officers used their hands to push the plaintiff into the vehicle: T 320.10; T 321.27; 20. Mrs Raad said that she was left behind when the police vehicle departed and she caught a taxi to the Parramatta Police Station: T 323.10; T 314.40. 1. Overall, I formed a positive impression of Mrs Raad. She gave her evidence in a straightforward fashion and made concessions where appropriate as to her recollections. I accept her as a truthful witness. I also accept that she did not hear all of the conversations which were occurring at the time between the plaintiff and police officers, both outside the Albion Hotel, on the footpath when she and her husband had left the hotel site and when the plaintiff was arrested. The plaintiff's documentary evidence 1. The plaintiff tendered a number of documents in support of his case. 2. Exhibit A is a Google maps photograph with attached map of the vicinity of the Albion Hotel. The photograph is taken from Harris Street and reveals a long driveway up to the entrance to the hotel with a carpark on the left. The hotel building itself is to the right of the driveway and appears to have been constructed almost down to the footpath of Harris Street. 3. This is the driveway down which the plaintiff and his wife walked, followed by various police officers, on the morning of 10 June 2012 when he eventually was departing the Albion Hotel premises. 4. Exhibit B is a still photograph of police officers talking to Mr Raad on 10 June 2012 at 3.32am. It adds nothing to the film of the incident. 5. Exhibit F is asserted by the plaintiff to be the original penalty notice issued to him by Constable Blades on the early morning of 10 June 2012. The penalty notice says that it is in relation to "fail to quit". The short title of the offence is indicated as follows: "Fail to leave premises when required". 6. The plaintiff also tendered an amount of video footage in relation to events in and around the Albion Hotel on 10 June 2012. 7. Exhibit M tendered by the plaintiff was the police COPS report primarily prepared by Constable Blades. This is discussed further below. The defendant's evidence 1. The defendant tendered a substantial amount of evidence in support of its case. Exhibit 1 – The film 1. Exhibit 1 consists of film taken from various security cameras both inside and outside the Albion Hotel on the morning of 10 June 2012. 2. The film provides substantial assistance in relation to the oral evidence given, particularly by the plaintiff. 3. The film depicts the plaintiff initially leaving the Albion Hotel with the security officer. The film also depicts the plaintiff apparently being highly indignant at being excluded from the hotel. It shows, consistent with the plaintiff's evidence, that he initially attempted to re-enter the hotel, apparently to obtain his wife, and the guard stopping him re-entering and proceeding into the hotel to obtain his wife. 4. Contrary to the plaintiff's oral evidence, the film shows that over several minutes the plaintiff had conversations with the security guards. The plaintiff can be seen waving his arms around. He seems to be indignant, upset and highly agitated by the events. Contrary to the plaintiff's evidence, there appears to be substantial conversation between the plaintiff and the security guards. 5. The film also confirms a large security officer advancing menacingly on the plaintiff and the plaintiff retreating. This is generally consistent with the plaintiff's evidence of the assault, although physical contact between the parties is not completely clear on the film. 6. The film also shows other security officers separating the plaintiff and the advancing security officer. The plaintiff continues apparently to plead his case with the security officers. 7. The film shows several police officers entering the Albion Hotel only a relatively short period prior to the events in question. This is inconsistent with the plaintiff's evidence that police were present in the hotel for a considerable period while he was standing with his wife in the nightclub/bar area. 8. After the police arrive, there is then film which shows the plaintiff talking to the police over a period of several minutes and waving his arms around and gesticulating and pointing towards the security guards/entrance area. 9. The film seems to indicate that the plaintiff went to great lengths to explain what had occurred. He clearly appears to be angry, indignant and perhaps even outraged. Contrary to the plaintiff's case, there does not appear to have been a short, calm explanation of what occurred by the plaintiff. Some minutes passed before eventually Constable Blades appears to write out the penalty notice which is subsequently handed to the plaintiff's wife. 10. The film also shows the plaintiff and his wife eventually emerging at the entrance to the driveway on Harris Street and being on the footpath. The film shows the plaintiff attempting to cross the road twice, with police even slowing down a taxi. However the plaintiff comes back to the footpath, which he accepted in his oral evidence. 11. The film shows the plaintiff initially walking away from the entrance and then returning to the group of police and talking to them in a somewhat agitated fashion. It appears that at this time the plaintiff was arrested and taken across the road to the police van. 12. Why the plaintiff chose to remain at the entrance to the club after he was allegedly assaulted is, from the film, somewhat unclear. He says he remained to explain the assault to the police who he had asked to be called. The film evidence appears to be consistent with this explanation. It would have been far more sensible for the plaintiff to have left and to have reported the assault at the police station and referred to the possibility that it had been filmed. 13. However, the plaintiff unwisely chose to remain. Rather than there being limited conversations with the security guards prior to the police arrival and with police officers after their arrival, the film clearly establishes in my view that the plaintiff spent a considerable period of time arguing with the security guards and apparently asserting that his exclusion was inappropriate. It also shows him spending a considerable period of time with the police apparently explaining what had occurred in a highly agitated fashion. The film does not reveal the police taking extensive notes whilst the plaintiff was talking. 14. Importantly, the film establishes: 1. The plaintiff having far more extensive conversations with the security guards outside the entrance to the Albion Hotel than the plaintiff gave evidence of in his oral evidence; 2. The plaintiff appearing highly indignant, upset and agitated at all times; 3. The plaintiff attempting to re-enter the Albion Hotel to get his wife; 4. The plaintiff not moving away from the entrance to the Albion Hotel but slowly moving closer to the entrance while remonstrating with the security guards; 5. The plaintiff appearing to continue to plead his case well after a reasonable period had expired for him to have explained to the police what had occurred in the alleged assault; 6. The plaintiff returning from attempting to cross Harris Street on two occasions and then advancing towards the police back to the driveway of the Albion Hotel. Exhibit 2 – The bail undertaking; Exhibit 3 – Result of appeal 1. Exhibit 2 relates to a bail undertaking signed by the plaintiff when he was charged with two offences in 1994. It was submitted that this was relevant to the question of assessment of damages as the plaintiff had previously had contact with the police. It was admitted as being relevant although in my view its relevance is marginal to the question of damages. 2. Exhibit 3 shows that in 1994 the plaintiff appealed against his convictions and sentence. One of the appeals was allowed. The conviction for receiving was confirmed. Exhibits 17 and 20 1. The defendant tendered the relevant pages from Constable Blades' police notebook relating to the plaintiff (Exhibit 17) and Constable Blades' statement for the purposes of the Local Court hearing (Exhibit 20). These are discussed further below. Evidence of Leading Senior Constable Bradley Neppl 1. Leading Senior Constable Bradley Neppl ("Constable Neppl") had been an officer at the Parramatta Police Station from 2004 to 2014. He confirmed that he was on duty on the morning of 10 June 2012 and had attended the Albion Hotel as part of his general duties. Attending the Albion Hotel was part of what he described as "high visibility policing" so members of the public would see that the police were around and in order to deter anti-social behaviour: T 329.42-330.5. 2. Constable Neppl gave evidence that the Albion Hotel was very busy that night and often had in excess of 1,000 patrons attending. He gave evidence that a walk through took about 10 minutes and the police officers involved would monitor the bar activities, the behaviour of patrons, speak to management and check that the CCTV apparatus was working: T 330.39. 3. Constable Neppl said that the police generally let the security guards deal with difficult patrons although police were called by the security guards on occasions. 4. Constable Neppl gave evidence that he did not recall meeting the plaintiff on 10 June 2012. He also confirmed that he did not appear in the still photograph which was Exhibit B. He recalled undertaking a walk through at the Albion Hotel but did not recall whether this was separately or together with Constables Blades, Gedeon, Restuccia and Frith. He did not recall the time that he arrived. He also made no police notebook entry in relation to Mr Raad's matter: T 331.22. 5. I accept the evidence of Constable Neppl as being truthful and accurate. Evidence of Senior Constable Frith 1. Oral evidence was given in the proceedings by Senior Constable Jason Frith. In 2012 Senior Constable Frith was stationed at the Parramatta Police Station and attended the Albion Hotel in the early hours of 10 June 2012 with other police officers. 2. Senior Constable Frith ("Constable Frith") gave evidence that part of his general duties tasks at the time was to attend licensed premises to deter anti-social behaviour and alcohol related crime. He said he attended as part of a high visibility police patrol: T 354.44. 3. He said the Albion Hotel at the time was a large venue and was very busy: T 355.5. 4. Constable Frith gave evidence that he made no notebook entries at the time in his police notebook in relation to the plaintiff: T 364.45. However, he did say that he gave evidence in the Local Court hearing in the charge brought against the plaintiff. He said that he had not been asked by Constable Blades to provide a statement for the purposes of the Local Court proceedings: T 364.41. 5. Constable Frith denied in cross-examination that his recollection of events was poor concerning the plaintiff: T 366.7. However, in answer to the proposition that his recollection of events on the driveway was "sketchy" in relation to the plaintiff, Constable Frith replied that the events occurred four years ago. I formed the impression that Constable Frith did not have a strong recollection of events on 10 June 2012. 6. Constable Frith gave evidence that he had arrived at the Albion Hotel with other police officers for the purposes of a walk through. He confirmed that he spoke to the plaintiff in the driveway area. He said that the plaintiff was yelling, throwing his arms around and would not leave the vicinity of the Albion Hotel: T 355.22. He confirmed that several police officers, including Constable Blades, were with him. He also confirmed his presence in the photograph which is Exhibit B. 7. Constable Frith said that he did not recall why the security officers at the Albion Hotel had asked the plaintiff to leave the hotel building but believed he would have understood the reason on 10 June 2012: T 356.25. He gave evidence that the plaintiff was asked to leave by him on numerous occasions but he did not leave the driveway vicinity when asked: T 357.1. He said he believed he was acting pursuant to the "licensing legislation" at the time which required someone excluded from licensed premises to be 50 metres or more from the premises: T 357.5. Constable Frith said the plaintiff had been given a direction to move on by the police and would not: T 357.30. He confirmed that the plaintiff was standing in the vicinity of the premises, was waving his arms around and was yelling loudly: T 357.38. Constable Frith could not recall what Mr Raad was saying at the time but formed the impression that he would not leave the vicinity of the premises: T 357.42. In his evidence in chief he confirmed that the plaintiff eventually walked down the driveway of the Albion Hotel to Harris Street, started to cross the road, came back and was arrested and placed in a caged police vehicle: T 358.25. He said he understood that the plaintiff was arrested for failing to leave the vicinity of licensed premises having been excluded from them. He said that he understood the arrest was because the plaintiff was continuing to commit the offence by not leaving the vicinity of the licensed premises: T 358.37. 8. Constable Frith did not recall what the plaintiff was saying shortly before he was arrested: T 359.43. He gave evidence that he assumed that Constable Gedeon was present at the time but he was not sure: T 359.46. 9. Constable Frith gave evidence that the police officer in the film walking across the road to open the back door of the police van in order to place the plaintiff in it was him: T 360.6. 10. Constable Frith did not recall whether he assisted the plaintiff to enter the police van: T 360.35. However, he confirmed that it was not his practice as a police officer at the time to "throw" a person in custody into a police van: T 360.39. 11. Constable Frith gave evidence that he did not recall the plaintiff being told the reason for his arrest but said, "It would have been done": T 361.2. Constable Frith said he did not recall the plaintiff saying or doing something which gave rise to his arrest: T 361.32. 12. In cross-examination Constable Frith confirmed that it was unlikely that he had been at the Albion Hotel for an hour prior to talking to the plaintiff as that would have been unusual: T 362.2. However, he confirmed that it was "possible" that police officers had been at the premises for half an hour before speaking to the plaintiff: T 362.6. Constable Frith confirmed that whilst he was at the Albion Hotel he was observing patrons to determine if any were affected by alcohol and said that police officers were entitled to ask patrons to leave if they were intoxicated: T 362.18. 13. Constable Frith also confirmed that he had spoken to Constable Blades in relation to the events of 10 June 2012. He believed the last time he had spoken with Constable Blades on the matter was at the time of the Local Court hearing although he conceded that he might have since that time. He did not recall whether he had: T 363.35; T 364.3. 14. Constable Frith gave evidence that his recollection was that he held one arm of the plaintiff as he was walking down the driveway to Harris Street to ensure that he left the vicinity. He said he believed Constable Blades was holding the other arm of the plaintiff but he could not be sure: T 366.26-.45. He said he was holding the plaintiff's arm as he was not leaving the vicinity and in order to get the plaintiff "on his way": T 382.34. 15. Constable Frith in cross-examination said he did not recall the plaintiff complaining that he had been assaulted when the police officers were talking with the plaintiff in the vicinity of the entrance to the Albion Hotel: T 380.33. However, he confirmed that the plaintiff was agitated at the time: T 375.11. He also confirmed that when he first spoke to the plaintiff in the driveway area that he had assumed that the plaintiff had been removed by security guards from the hotel: T 375.28. Constable Frith gave evidence that he did not recall that he was the police officer that had most of the discussion with the plaintiff in the driveway area or that it was Constable Blades who had given the plaintiff the penalty notice: T 376.6. 16. It was put to Constable Frith in cross-examination that the plaintiff had walked down the driveway after receiving the ticket without Constables Frith and Blades holding the plaintiff's arms. Constable Frith said he believed he was holding the plaintiff's arm "but it was a long time ago": T 381.9. He did not recall a taxi being stopped in Harris Street for the plaintiff, the plaintiff saying that he did not want to get into the taxi and the plaintiff yelling at police to stop following him. He also did not recall the plaintiff saying anything to Constable Gedeon which upset him and led to the plaintiff's arrest. In answer to the proposition that the plaintiff had asked why he was under arrest, Constable Frith said that that was possible: T 381.18-.34. 17. Constable Frith said he did not hear any conversation between the plaintiff and the plaintiff's wife near the back of the police wagon in which the plaintiff asked Mrs Raad whether she had enough money or any response from Constable Blades: T 381.48. Constable Frith said he did not recall whether he was holding the plaintiff as he was getting into the police wagon: T 382.7. He said he did not see any police officer push the plaintiff into the police wagon: T 382.14. He also confirmed he did not deal with the plaintiff after he had been taken to Parramatta Police Station. 18. Overall, I found Constable Frith to be an honest witness who gave his evidence in a straightforward fashion and who made concessions where appropriate. I accept the submission made on behalf of the defendant to this effect: defendant's submissions paragraph 148. Constable Frith took no notes of the events relating to the plaintiff on the morning of 10 June 2012. His recollection of the events appeared to be limited in some areas. Some caution should therefore be exercised in my view in accepting all of his evidence even on the basis that he impressed as giving his evidence honestly. Evidence of Constable Nadia Restuccia 1. Constable Nadia Restuccia was one of the police officers who attended the Albion Hotel in the early hours of 10 June 2012. The film in the matter (Exhibit 1) and the evidence of Constable Frith establishes that Constable Restuccia was present with the other police officers at the time. 2. Constable Restuccia confirmed that she attended the Albion Hotel with other police officers as part of a "business inspection of the licensed premises": T 420.12. This was conducted as part of police general duties particularly on the weekend. The police attended to speak to the security guards and the licensee to see whether there were any issues relating to licensing, security staffing and whether the premises was complying with its licence and whether the licensee was complying with the licensing conditions: T 420.24. Constable Restuccia said that although police were asked to assist to remove patrons who had been turned out of licensed premises, generally it was left to the security guards. 3. Constable Restuccia said that she recalled standing outside the main entrance to the Albion Hotel in the early hours of 10 June 2012 in close proximity to the plaintiff: T 421.22. When asked as to her observations of the plaintiff at the time, Constable Restuccia said that "the only thing that I remember is that he appeared quite angry and quite upset; I remember his arms flailing around as depicted in the footage as well": T 421.26. Constable Restuccia confirmed that the plaintiff was given a penalty notice at the time for failing to quit from a licensed premises: T 421.35. Constable Restuccia could not recall anything that was said between the parties at the time: T 421.37-.43. 4. Constable Restuccia was then taken to the events when the plaintiff had walked down the driveway and was on the footpath near Harris Street. Constable Restuccia could not recall being present on the footpath when the plaintiff entered Harris Street and returned to the footpath: T 422.37. Constable Restuccia also could not recall the circumstances in which the plaintiff had been arrested: T 423.6. The only relevant recollection of Constable Restuccia as to this time was that there was an argument and she recalled the circumstances had arrived at a point "where he [the plaintiff] had just failed to move on and he was continuing the offence, and at that point he was detained": T 423.9. Constable Restuccia could not recall who arrested the plaintiff or whether she witnessed the arrest. Constable Restuccia said that she did not recall the plaintiff at any time on 10 June 2012 demanding to be told why he had been arrested: T 423.49. In relation to the plaintiff being placed in the police vehicle, Constable Restuccia could recall this but could not remember the detail: T 424.6. She could also not recall taking hold of the plaintiff after he was arrested but believed she did not: T 424.14. 5. In cross-examination, Constable Restuccia confirmed that one aspect of a police walkthrough of licensed premises was to identify patrons who might be intoxicated. She indicated that the police would notify security guards in relation to the person but on occasion she had been present with police officers where another police officer told someone who appeared to be intoxicated to leave licensed premises: T 425.8-.39. 6. She could not recall seeing Constable Gedeon hugging a patron inside the nightclub at the Albion Hotel on 10 June 2012: T 426.1. 7. Constable Restuccia confirmed that she did not recall making a statement for the Local Court proceedings and also had no notebook entries of the events of 10 June 2012 relating to the plaintiff: T 426.29. 8. Constable Restuccia also gave evidence that she did not recall at the time the plaintiff was standing outside the entrance to the Albion Hotel that he complained to Senior Constable Frith that he had been assaulted by one of the security guards: T 427.22. Constable Restuccia said that it was fair to say that she did not remember much of her interaction with the plaintiff on 10 June 2012: T 427.29. She could not recall "giggling" at any stage when dealing with the plaintiff as alleged by him: T 427.37. She also could not recall how the plaintiff was placed into the rear of the police wagon: T 428.20. 9. I formed the impression that Constable Restuccia was doing her best to give her evidence truthfully and frankly. She made concessions that her recollection was very limited. The most important aspect of Constable Restuccia's evidence was that she recalled the plaintiff being angry and upset and flailing his arms around and that events had got to the point where he was arrested because he failed to move on. See also paragraphs 159-160 of the defendant's written submissions. This is consistent with the evidence of Senior Constable Frith. Evidence of Senior Constable Kim Rogers 1. Oral evidence was given by Senior Constable Kim Rogers who was the Custody Manager police officer at Parramatta Police Station when the plaintiff was brought to that station after having been arrested. 2. The defendant tendered a number of documents in relation to the plaintiff's custody at Parramatta Police Station. The first relevant document was Exhibit 10, a Custody Form – Detained Person, which included the plaintiff's personal particulars and gave as the reason for him being detained: "Intoxicated". The form indicated that the arresting police were Constables Blades and Restuccia. It will be recalled that Constable Restuccia could not recall being involved in the plaintiff's arrest: T 422.37. The second document was a Custody Checklist that provides little information other than a "Field Arrest Form" was provided which appears to be Exhibit 10, the "Custody Form – Detained Person". 3. The third document tendered by the defendant was the Custody Management Record relating to the plaintiff's detention at Parramatta Police Station. 4. This document indicated: 1. The plaintiff arrived at Parramatta Police Station at 4am on 10 June 2012; 2. Details in relation to the plaintiff were commenced to be entered into the record at 4.23am; 3. The part of the record under the heading "Brief Assessment" had as a comment in relation to the plaintiff: "Appeared to be affected by alcohol". Under the heading "Visual Assessment" and the question "Does the person show severe agitation or aggressiveness" the following comment is in the document: "Very argumentative with police demanding to be released stating he had done nothing wrong. Claims police mistreated him and arrested him for no reason." Under the heading "Visual Assessment Relating to the Person Potentially Being Under the Influence of Drugs or Alcohol" the following comment is added: "Appeared to be affected by alcohol". The details are indicated as having being added by Senior Constable Kim Rogers at 4.26am on 10 June 2012; 4. Under the heading "Questionnaire" the questions to be asked of the detained person in the document indicate that the plaintiff refused to answer a number of the relevant questions. The following comment has been added: "Very argumentative with police". A similar comment is made under the heading "General Observation Comments". This is indicated in the document as having been added by Senior Constable Kim Rogers at 4.28am; 5. Under the heading "General Comments" the following is indicated: "POI was arrested at Albion Hotel, George St, Parramatta for remain in the vicinity of Licensed Premises at 3.40am on Sunday 10/06/12 after he was told to leave and received an infringement for fail to quit licensed premises. …. he was taken to the Parramatta Police Station to stop the continuation of the offence. he was placed into dock 2. Once in custody a decision was made to issue a further infringement notice to the POI for remain in the vicinity of Licensed Premises. …. The POI was informed of this decision and stated that he would not accept the infringement notice. He was informed that the infringement notice would be sent to his home address and he was removed from the chargeroom and escorted to the foyer of the police station. …. The POI has stated that he was mistreated by police and had done nothing wrong. He was informed that if he wanted…". 1. This material is indicated as having been added by Senior Constable Kim Rogers at 4.43am on 10 June 2012. The comments continued: "POI stated he wanted to make complaints against police. he was informed to contact the LAC via letter. …. POI was escorted to the foyer and there stated he would not leave until he spoke with a senior member of staff. …. Insp BENELLO was informed and stated that a record of the incident was to be made. Record made via this media. …. Insp BENELLO aware of the incident at 4.25am on 10/06/12. …. At the time of incident POI appeared to be affected by alcohol." 1. These additional comments were added according to the document by Senior Constable Kim Rogers at 4.49am; 2. The arrest details on the Custody Management Record indicate that the plaintiff was arrested by Senior Constable Blades and Constable Restuccia for "Remain in vicinity of licenced premises" at 3.40am; 3. The responsible officer for custody is indicated in the form as Senior Constable Kim Rogers. 1. Senior Constable Rogers ("Constable Rogers") indicated in her oral evidence that as at 10 June 2012 she was the Custody Manager at Parramatta Police Station, had received training for that role and had been performing Custody Manager duties for about a year: T 430.29. As far as custody matters were concerned, Constable Rogers indicated that the Parramatta Police Station was a busy custodial station: T 430.36. She indicated that from her desk as the Custody Manager she had direct observation of four docks where arrested persons could be located and observed. She also had the assistance of a camera to look at each arrested person in the dock. 2. Constable Rogers gave evidence that as at June 2012 when a person was brought into custody at Parramatta Police Station her role was to enter the person into custody and record their presence inside the station custody room. She indicated that the police officers bringing the person in would fill out what was called the Field Report Form detailing the name, the date of birth and the offence the person was there for and any observations they had of the person in custody. The Custody Manager would then enter the detainee into custody based on the information supplied in the Field Arrest Form. The Custody Manager would ask the detained person certain questions about their health and well-being and make further observations of their behaviour at that time: T 431.35-.50. Based on the answers received, the Custody Manager would then record yes, no or refused to answer in relation to the relevant question: T 432.5. 3. Constable Rogers confirmed that she was the police officer who completed the Custody Management Record which is Exhibit 12 in relation to the plaintiff on 10 June 2012: T 432.16-.21. She also confirmed that she asked the plaintiff the questions which were entered into the Custody Management Record: T 432.28. 4. Constable Rogers confirmed that the Custody Form – Detained Person which is Exhibit 10 was given to her when the plaintiff arrived at the police station and was placed into custody: T 433.43. 5. In relation to the Custody Management Record, Constable Rogers gave evidence that its purpose was to document the behaviour and appearance of the plaintiff, being how he looked to Constable Rogers at the time he was presented to her for custody: T 434.8. She indicated that she was the one that put the comments in the form in relation to the plaintiff. When asked whether the comments were a product of anything she had been told by anyone else or her own assessment, Constable Rogers provided the following evidence: "It was a bit of both; I was told he'd been drinking at a certain hotel and I observed him and on his behaviours I made further observations": T 434.16. 6. Constable Rogers said that she formed her own assessment of the plaintiff: T 434.20. Constable Rogers further said that she had been unable to locate the plaintiff's acknowledgment of release from custody when he was released at 4.53am in the custody management records. Constable Rogers indicated that she could not remember whether he refused to sign the Acknowledgment of Release Form or it had gone missing: T 435.35-.40. 7. Constable Rogers confirmed that she brought the plaintiff's complaint to the attention of Inspector Bonello but he would not speak to the plaintiff "because he was intoxicated": T 435.3. Constable Rogers said that she had made the summary under "General Observations and Comments" for the following reasons: "He was very insistent that he wanted to be released; he wasn't going to answer questions, he was refusing, he just wouldn't listen to what I was asking of him in certain circumstances". Constable Rogers said that was a "continual feature" of the plaintiff's presence in the custody room: T 436.13-.20. 8. In cross-examination, Constable Rogers confirmed that she could recall carrying out an assessment of the plaintiff's sobriety on 10 June 2012. This was part of Constable Rogers' obligations to observe people in custody: T 437.43-T 438.1. Constable Rogers said this was despite having managed the custody of many people in accordance with her duties over the four years after the plaintiff was taken into custody: T 438.16. When pressed, Constable Rogers disagreed that she could not remember dealing with the plaintiff on 10 June 2012: T 438.47. Constable Rogers gave evidence that she had refreshed her memory in respect of dealing with the plaintiff from the Custody Management Record: T 438.43. Constable Rogers also gave evidence that she had been observing the plaintiff for about 26 minutes before she started completing the Custody Management Record as he had been placed in custody at 4am and her visual assessment of him was completed at 4.26am: T 439.50 and Exhibit 12. 9. Constable Rogers confirmed that the plaintiff upon arrival was upset at being in custody, said that he had done nothing wrong and claimed that police had mistreated him: T440.32-.43. In answer to the suggestion that certain questions under the heading "Questionnaire" were not put to the plaintiff, Constable Rogers said that it was mandatory and the questions were always asked by her: T 441.1-.11. However Constable Rogers conceded that 4½ years had passed and she could not remember exactly what the plaintiff said or did not say to her: T 441.31. Constable Rogers confirmed that the material in the General Comments section relating to the reasons for the plaintiff's arrest was obtained from the arresting officer who was Constable Blades: T 442.10-.17. 10. Constable Rogers said that the plaintiff was never placed in a cell (T 445.2). This is contrary to the evidence of the plaintiff (T 38.2) but it may be that the plaintiff regarded a dock with a perspex wall as being a cell. 11. In cross-examination Constable Rogers said that her assessment of the plaintiff was that he was "affected by alcohol" and that he admitted "he had had some drinks": T 445.14. Constable Rogers gave evidence that she was present when the plaintiff was released but she did not think she accompanied the plaintiff down the corridor from the custody room to the front hallway and the front counter of the police station: T 446.12-.20. 12. Constable Rogers impressed me as a highly capable and reliable witness. She made concessions where appropriate and I accept her evidence in relation to the preparation of the Custody Management Record. 13. However, there is no detail in the Custody Management Record as to why the plaintiff appeared to be affected by alcohol to Constable Rogers. There is no detail in relation to what it was in the visual assessment of the plaintiff that led Constable Rogers to this conclusion. It may well be that this conclusion was reached due to the plaintiff's very argumentative state and his demands that he should be released and police had mistreated him. The highest that the oral evidence of Constable Rogers reached was that he appeared to her to be affected by alcohol and that he admitted that he had had some drinks: T 445.14. Evidence of Mr Ben Stephens 1. The defendant called as a witness Mr Ben Stephens. Mr Stephens is the Group Operations Manager for Solotel which runs a number of hotels including the Albion Hotel. He has held that position for nearly 15 years. Mr Stephens gave evidence that an independent security company Pacific Risk provided security services at the Albion Hotel: T 448.34; T 453.26. 2. Mr Stephens gave evidence that soon after 10 June 2012 he was forwarded an extract from Pacific Risk's security daily occurrence register, an extract of an incident report and some CCTV film footage. These documents became Exhibit 14 in the proceedings. Mr Stephens said that it was the job of the security company and the manager of the Albion Hotel "to send me any incidents that they believed should be flagged as … out of the normal or could be an issue that I need to deal with or be aware of.": T 449.15. Mr Stephens said that the plaintiff also sent a letter of complaint to him dated 11 June 2012 setting out the plaintiff's version of what had occurred at the Albion Hotel which was signed by Mr and Mrs Raad. This document became Exhibit 13 in the proceedings. Mr Stephens gave evidence that he provided the CCTV footage to the police: T 453.19. 3. In cross-examination, Mr Stephens said that some time after 10 June 2012 he was contacted by the plaintiff. He agreed that the plaintiff said that he had been excluded from the Albion Hotel on 10 June 2012 for being intoxicated. Mr Stephens did not recall the plaintiff saying that he had been assaulted. He thought the issue was that the plaintiff did not believe he was intoxicated and had been removed for the wrong reason: T 460.3-.34. 4. Mr Stephens confirmed that Constable Blades obtained the video footage either from him or from the manager of the Albion Hotel: T 462.24. 5. The first document in Exhibit 14 is the security daily occurrence register of Pacific Risk Services. The document seems to show that it was completed by the RSA Marshall Mr Fuimaono on 10 June 2012. The document relevantly includes the following: "On my patrol walking from gaswork bar area to the garden bar, I notice an elderly male of European appearance with an Asian lady looking or appear intoxicated, then he stopped me to ask me something. I can't recall again giving me more sign of intoxication. I still gave him the benefit of the doubt as I followed him carefully to gaswork bar. He was walking slow zigg acing a little running in to people unconcern that's with the fact I stood there a little longer not acting … As he stood there … with this Asian lady his eyes also appear sleepy looking tired. I realise then for his safety and of others this man has to leave … Once we got to the front door I kindly said sir I think you've had enough for the night please call it a night. He decline got angry straightaway refusing to leave, which I then handed over to my supervisor [sic]." 1. The second document was an incident report filled out by a Mr Benjamin. This document includes the following: ""He was explained to that he had enough to drink and that had to leave. The male refused and became argumentive. Head doorman S/O H Robinson & myself advised the patron that he had shown signs of intox including unsteady on feet, sleepy eyes, red face & slurred speech. He still refused and became very argumentive. He started swearing and threatened to sue the venue & security. Police that were on site were advised and they approached the male. He still refused to leave. After arguing for about 10-15 minutes, he was arrested and taken away in police vehicle [sic]." 1. The two documents essentially establish that the security officers believed that the plaintiff appeared intoxicated and that he was asked to leave. After exiting the building and being told that he was intoxicated and had to leave the premises, the plaintiff became argumentative and disputed his intoxicated state. In substance, this accords with evidence given by the plaintiff. The evidence that the plaintiff started swearing in Exhibit 14 is not referred to in evidence given by the plaintiff, Mrs Raad, Senior Constable Frith or Constable Restuccia. As no detail is given in relation to this allegation I place little weight on it. 2. Neither Mr Fuimaono nor Mr Benjamin were called to give oral evidence and thus were not cross-examined. The plaintiff initially submitted that it is assumed that their oral evidence would not have assisted the defendant's case: Jones v Dunkel (1959) 101 CLR 298. I do not agree with this submission. It is difficult to see why the security officers should be seen as being in the defendant's "camp". Exhibit 14 was on its face prepared on or about 10 June 2012. It is therefore contemporaneous and entitled to be given some weight as to the truth of its contents even though its contents were not tested. I also reject the plaintiff's reply submissions that there is no evidence that the documents in Exhibit 14 were contemporaneous: plaintiff's reply submissions paragraph 6. Mr Stephens gave evidence that he was sent the two Exhibit 14 documents "a few days after" 10 June 2012: T 499.15-.16. The first document is dated 10 June 2012 and the second document is also dated 10 June 2012 and has the time "0730". I infer this was when it was prepared. 3. Mr Stephens appeared to me to be a straightforward witness and I accept his evidence. Evidence of Chief Inspector Laurence Bonello 1. Chief Inspector Bonello was the senior officer at the Parramatta Police Station in the early hours of 10 June 2012. 2. He gave evidence that at that time, the Custody Manager, Senior Constable Kim Rogers, came to him and said that the plaintiff wished to make a complaint in relation to his treatment. Chief Inspector Bonello ("Inspector Bonello") indicated that he would not attend the plaintiff in his cell but the plaintiff should come back later and make a complaint if he wished. 3. Inspector Bonello said that for a shift from 6pm to 6.30am on a Saturday/Sunday at the time, the Parramatta Police Station would have had two cars on duty with a "swing car" which was available if necessary. Six officers were in the two cars on duty and two further officers in the "swing car". At the time Inspector Bonello gave evidence that enforcement of the Liquor Act was a priority. As part of the police duties, officers undertook a walkthrough of licensed premises to observe levels of intoxication, check security licences, check the premises' incident register and similar related checks: T 386.13. 4. Inspector Bonello gave evidence that he met the plaintiff a few days after the plaintiff had been arrested. He said he was walking through the station and saw another Inspector talking to a person. He noticed that voices were raised between them and he came over as he was the senior officer responsible for professional issues. Inspector Bonello said that the plaintiff produced a letter of complaint which he read. He formed the view that the matter should not be taken any further at the time as the plaintiff had his avenue of redress at court where he could raise issues as he had been charged. He told the plaintiff that if he was successful in the Local Court he could always return and follow up on the complaint. Inspector Bonello said that he prepared a triage form which recorded the complaint received from the plaintiff and his findings and recommendations to the Area Commander that there should be a declination to investigate at that stage. Inspector Bonello said that for the purposes of preparing the triage form he had accessed the plaintiff's complaint letter and the COPS records. He said he may have accessed also the custody register: T 393.42. 5. Inspector Bonello agreed in cross-examination that the plaintiff had been upset at his treatment and that he was very "forward" in putting his point in relation to his treatment by police: T 401.41. 6. I accept Inspector Bonello's evidence. Documents relating to the plaintiff's complaint (Exhibit 7) 1. A number of documents were tendered by the defendant relating to the complaint made by the plaintiff. The first document was the triage form in relation to which Inspector Bonello gave evidence. The first three paragraphs of page 2 of the triage form set out a brief description of the incident which Inspector Bonello said that he obtained from police officers involved in the arrest through the COPS entry: T 393.50. These paragraphs record that the plaintiff was asked to leave the Albion Hotel due to intoxication and that he refused to leave and police were called. They also record that the plaintiff was given an infringement notice and then remained at the premises and refused to leave and was escorted by Constable Blades and Senior Constable Frith from the hotel with the officers grabbing the complainant by each arm. They claimed that the complainant resisted arrest and the police used reasonable force by pulling him by his arms and walking him out near the road area. It is claimed that the plaintiff was directed to leave which he refused and he continued to argue and he was then arrested. 2. The triage form records that soon after his arrest, the plaintiff attended the Parramatta Police Station to make a complaint against police. The document includes the following: "On Tuesday the Complainant has attend [sic] Parramatta LAC to make a complaint against police and stated that Security Guards had assaulted him and that Const Blades had attempted to make him 'J' walk to commit an offence. At the time he was speaking to Inspector Lowery. Inspector Bonello has then arrived at the front counter area and also attempted to assist the complainant. He has started to talk over police and on several occasions Insp Lowery has asked the complainant to allow him to finish and let him explain. Inspector Bonello has then advised the complainant of his right to an alternate means of redress at Court. The Complainant then became aggressive at Bonello and Lowery and wished to take the matter further. He was advised by Inspector Bonello that because he had another means to redress his complaint at court that police would decline his complaint. The complainant was constantly ranting and raving about the actions of Police and when informed that he had the right to take the matter to court he kept saying that it was not about the ticket, but about the actions of Police. He then kept returning to the incident and about his level of intoxication. He again was informed by Bonello that his complaint would be recorded, however would be declined due to the fact that he had another means of addressing his concerns. He then said that he would get his barrister to contact police as he wanted the security guard charged. He also wanted the names of Inspectors Bonello and Lowery with the inference of a point of contact for future contact." 1. Also in evidence was a letter of complaint from Mr and Mrs Raad dated 11 June 2012. The document is significant as it was prepared immediately after the events in question: cf paragraph 176 of the defendant's written submissions. The letter of complaint of the plaintiff is generally consistent with his evidence of the events of 10 June 2012. A number of additional points should be noted: 1. The plaintiff says in the letter that when the police came he "was hyperventilating due to being upset". This comment is consistent with the plaintiff seeing himself as being extremely upset at being required to leave the Albion Hotel. This affects the reliability of his evidence in relation to the events at this time; 2. The letter states that the plaintiff's wife was "intoxicated" not him as he "was driving home that night not her"; 3. The letter asserts that when the plaintiff arrived at the footpath at the end of the driveway that it was Officer Blades who grabbed one of his arms from behind "with extreme force" and handcuffed the plaintiff. The plaintiff said that he did not struggle or resist; 4. The letter states as follows in relation to the plaintiff being placed in the police vehicle: "They then threw me in the car like some sort of rubbish you would treat an animal better than that. I landed on my knees"; 5. The letter asserts that the only explanation the plaintiff could think of for the guard asking him to leave was that he or other individuals in the club thought they could "take advantage of [the plaintiff's wife] being intoxicated"; 6. The letter referred to the police officers coming into the club whilst the plaintiff and his wife were there. The following is stated: "This week the officers were right behind us for at least 15 minutes or so". This is inconsistent with the plaintiff's oral evidence where he said that the police officers were in his vicinity in the hotel for about an hour: T 87.48, T 136.48. 1. Also included with the tender was the police COPS entry which had apparently been prepared by Constable Blades at 5.23am on 10 June 2012. The narrative of the details relating to the plaintiff commenced as follows: "About 3:30am Sunday 10th of June 2012 police were conducting a business inspection of the Albion Hotel which is located on 195 George St Parramatta. . Police were standing at the front entrance of the hotel and observed a number of security guards escorting the accused, Johnny RAAD, out the front doors of the hotel. At the time his wife was present and appeared reasonably calm. . Police observed the accused to be boisterous and quarrelsome with the security guards as he was raising his voice in a loud manner and questioning the guards. . Police stood about 10 meters away and allowed the security guards to resolve the matter with the accused. The accused approached police and in a boisterous manner he enquired why he was excluded from the premises." 1. This COPS material does not appear to be consistent with the film footage which is Exhibit 1. That footage shows that the plaintiff was at the front of the entrance to the Albion Hotel at the time police arrived in the vicinity. Further, it does not suggest that the police stood to one side and allowed the security guards to resolve the matter with the plaintiff before the plaintiff approached the police. This raises some questions about the reliability of the COPS details. This is discussed further below. 2. The COPS document asserts the following further matters which are relevant: 1. Police introduced themselves to the plaintiff by name, rank and station of duty; 2. The plaintiff talked over the police several times; 3. The police formally directed the plaintiff to leave the vicinity of the hotel and he refused to do so; 4. Police made a number of attempts to persuade the plaintiff to leave the vicinity of the hotel and he did not comply with police; 5. Police officers advised the plaintiff to calm down and he ignored police; 6. Police warned the plaintiff that it was an offence to remain in the vicinity of the hotel; 7. Police handed the penalty ticket to the plaintiff wrapped around his driver's licence as opposed to handing it to Mrs Raad; 8. The plaintiff remained in front of the entrance to the hotel and refused to leave and Constable Blades and Senior Constable Frith had to grab the plaintiff by each arm to escort him from the hotel; 9. The plaintiff allegedly resisted police and force had to be used by pulling him by his arms to walk down the driveway area; 10. Police then released the plaintiff and directed him to leave which he refused and he continued to argue in an allegedly "rambling and unintelligible conversation with police"; 11. The plaintiff attempted to return to the front entrance to argue with security and he was arrested. It is asserted that the plaintiff resisted by shrugging his arms away from the police grip; 12. In relation to the plaintiff being placed in the police vehicle the following is stated: "Police requested the accused to go in the prisoner module of the caged vehicle and he refused by pushing backwards onto police. Police then had to use reasonable force to placed [sic] him in the rear of the vehicle."; 1. It is asserted police made contact with Mrs Raad and she arrived at the station shortly after. This is inconsistent with Mrs Raad's evidence where she asserts that she was left on Harris Street and made her own way to Parramatta Police Station; 2. During the whole of the incident the COPS record states the plaintiff was moderately affected by alcohol. Evidence of Senior Constable Michael Blades 1. Evidence was given by Senior Constable Michael Blades ("Constable Blades") who was the main arresting officer in relation to the arrest of the plaintiff on 10 June 2012. 2. Constable Blades was attached at the relevant time to the Parramatta Police Station and was assigned to general duties which included attending licensed premises: T 475.33. 3. On the night in question, Constable Blades said that he was working the 6pm to 6am shift and from 8pm was assigned to general duties on patrol. Constable Blades said that he attended the Albion Hotel at Parramatta with a number of other police officers at about 3am in the morning: T 476.37. 4. Constable Blades gave evidence that initially he and the other police officers spent some time within the hotel premises in the near vicinity of the bar service areas patrolling the licensed premises: T 476.50. 5. Constable Blades gave evidence that he then came in contact with the plaintiff as follows: 1. He was with a group of police officers who exited the hotel and he observed the plaintiff with a number of security officers. He said the plaintiff was quite loud and was yelling at the security guards. Constable Blades said the plaintiff was pacing backwards and forwards, had slurred speech, was sweating profusely and was talking in a very rapid manner of speaking. Constable Blades said the plaintiff appeared to be a very angry man. Constable Blades gave evidence that he was told by the security guards that they had asked the plaintiff to leave. Constable Blades formed the opinion that the plaintiff was intoxicated: T 477.6-.45; 2. Constable Blades then engaged the plaintiff in conversation with the other police officers. He gave evidence that he could understand parts of the conversation with the plaintiff. He said the plaintiff said "he wanted to go back inside" the hotel as he had been unfairly treated. Constable Blades then gave evidence that he directed the plaintiff to leave the 50m vicinity of the licensed premises and that was past the intersection nearby. He said that the plaintiff refused and said that he was not going and that he knew "the law". Constable Blades said he was concerned as to the plaintiff's level of intoxication and the risk that he may cause injuries to others and himself: T 477.47-T 478.48; 3. Constable Blades said that his principal reason for asking the plaintiff to leave was that he was committing an offence under Section 77 of the Liquor Act. Constable Blades said he then warned the plaintiff that it was an offence if he did not leave and that he would write him a ticket. That appeared to have no effect on the plaintiff and in due course he wrote a ticket for remaining in the vicinity of licensed premises. Constable Blades stated it was also known as a "fail to quit ticket": T 478.50-T 479.20; 4. Constable Blades said that he wrapped the ticket around the plaintiff's licence that he had previously obtained and handed it to either the plaintiff or to Mrs Raad: T 480.46; 5. Constable Blades gave evidence that he then gave the plaintiff a further direction to leave the vicinity of the licensed premises. He said the plaintiff still refused and was quite upset. Constable Blades said that he explained to the plaintiff that he would be committing further offences by failing to leave and that he would be arrested if he did not leave: T 481.6. At that time the plaintiff continued to argue, to raise his voice, to raise his hands during the conversation and continued with his loud conduct: T 481.27. At this time Mrs Raad was present and she remained quiet and very calm at all times; 6. Constable Blades said he recalled recording some notes in his police notebook at the time: T 483.32. The notebook became Exhibit 17 in the proceedings and included the following: "… observed the PIO Johnny Raad … yelling & screaming at security guards. Very quarrelsome & did not follow their instructions. POI was sweating had slightly slurred speech. Waving his hands from side to side & was in their faces. Police intervened & an official move along direction was given. POI did not comply. Police warned POI it's an offence to remain at licensed premises & needs to leave. POI refused. Police issued ticket to him & he refused to accept it. Another direction was given and he refused to comply. He was arrested and he resisted on several occasions." 1. Constable Blades said that he listened to what the plaintiff was saying and then asked him to move along and he failed to do so which gave rise to the ticket: T 485.19; 2. Constable Blades said that having exhausted all reasonable actions trying to communicate with the plaintiff and move him along he grabbed the plaintiff by one arm with his hand and started walking. The plaintiff shrugged Constable Blades' hand from him and pulled free from the grip and started walking on his own accord towards Harris Street: T 485.30; 3. Constable Blades said he proceeded to follow the plaintiff to ensure that he left the vicinity. He gave evidence of the plaintiff starting to cross the road (Harris Street) on two occasions and then returning to the footpath. Constable Blades gave evidence of the plaintiff approaching the group of police which included Constable Restuccia in a "confrontational sort of way" and the plaintiff raising his finger at Constable Restuccia: T 486.15-.30; 4. Constable Blades said that at this stage the plaintiff was arrested and he said to the plaintiff: "Mr Raad, at this stage you are under arrest for being intoxicated and also committing an offence of fail to quit": T 489.24. The plaintiff was handcuffed to his rear; 5. The plaintiff was then "walked", according to Constable Blades, to the police van and placed in the back of the police caged vehicle: T 490.8. He gave evidence that the plaintiff was complaining about his arrest and said it was unlawful; 6. Constable Blades claims that the plaintiff resisted getting into the back of the police vehicle but ultimately he did so and was assisted by police and sat down on the bench: T 490.30 and T 491.27. Constable Blades denied attempting to throw or project the plaintiff into the police vehicle and said he did not observe any other police officer do that: T 492.2-.7; 7. The plaintiff was then taken to Parramatta Police Station. Constable Blades noted that the plaintiff was placed in the cell dock (T 492.50) but he could not recall having anything further to do with him after that time. Constable Blades then gave evidence that he created the police record (COPS) partly relying on his police notebook: T 493.26. Constable Blades said the police COPS entry was created between 5.02am and 5.23am on 10 June 2012. He denied locking the main doors to the police station to prevent public access as claimed by the plaintiff: T 497.6; 8. Constable Blades said that he then obtained the CCTV footage and produced a timeline for the brief of evidence when he understood the plaintiff was disputing his charge: T 501.2. He also prepared a seven page statement for the purposes of the Local Court hearing which became Exhibit 20 in the proceedings. A factsheet was also prepared which became Exhibit 21; 9. Constable Blades was then shown parts of the film which was in evidence (Exhibit 1). He claimed that the plaintiff said outside the Albion Hotel that the security guards were trying to "sleep with my wife": T 505.21. In the course of seeing the film Constable Blades gave further evidence in relation to what he said at the time of arrest. According to Constable Blades he said: "At this stage, I'm Senior Constable Blades from Parramatta Police; you're under arrest for being intoxicated and committing an offence of failure to quit": T 510.27. Constable Blades said that at the time he believed the plaintiff was intoxicated, was acting in a disorderly manner and he was very likely to harm others and himself: T 510.50; T 512.32. 1. Constable Blades was then cross-examined at some length by counsel for the plaintiff. In cross-examination, Constable Blades maintained in substance his evidence in chief. He asserted that he gave directions to the plaintiff to leave the vicinity of the licensed premises, that these were ignored, that he wrote an infringement notice to the plaintiff who eventually left the driveway area near the main entrance to the Albion Hotel but later attempted to walk back toward the entrance and not quit the vicinity and was then arrested by him. 2. In the course of his cross-examination, Constable Blades made a number of concessions as follows: 1. Constable Blades conceded that he altered Part A of the infringement notice (Exhibit L) in a number of respects including changing the title of the offence and the offence code which had appeared on Part C of the infringement notice (Exhibit F) which had been provided to the plaintiff on 10 June 2012: T 525.46, T 528.36; 2. Constable Blades said that he probably changed Part A of the infringement notice as the offence had a different title and code number and the police system would not accept the existing offence and code number: T 530.16. Constable Blades said that he could not amend Part C (Exhibit F) as this had been provided to the plaintiff; 3. Constable Blades agreed that the fourth paragraph of the COPS entry (Exhibit M, page 3) to the effect that "police stood about 10 metres away and allowed the security guards to resolve the matter with the accused" was incorrect and was prepared by him without the benefit of the CCTV footage. Constable Blades said this was his memory at the time and conceded that it was different to what was shown on the footage: T 536.44-T 337.6; T 538.37; 4. Constable Blades was taken to the COPS entry (Exhibit M, page 4) where it asserts that "Police then issued an infringement notice 4916694613 for 'Excluded person remain in vicinity of licensed premises' and the accused became more argumentative towards police". Constable Blades conceded that the infringement notice as given to the plaintiff or his wife (Exhibit F) referred to a different offence number. Constable Blades said he was intending to refer in the COPS entry to the offence under Section 77 of the Liquor Act: T 539.47; 5. Constable Blades was taken to the COPS entry (Exhibit M, page 4) when it states: "the accused remained to stand at the front of the entrance of the hotel and refused to leave. Two police officers (Constable Blades & Leading Senior Constable Frith) had to grab the accused by each arm and escort him from the hotel." 1. Constable Blades did not give oral evidence that Constable Frith grabbed the plaintiff. His evidence only extended to him grabbing the plaintiff by the arm and the plaintiff shrugging off his hand. Constable Blades conceded that the CCTV footage did not show the plaintiff being grabbed. He said that he had not seen the footage when the COPS entry was prepared: T 542.3; 2. Constable Blades denied that the plaintiff told him at the entrance to the Albion Hotel that he had been assaulted by the security guards: T 546.21. All he recalled the plaintiff saying to him was that the guards kicked him out so that they could sleep with his wife: T 546.27. It is noted that paragraph 9 of Constable Blades' statement (Exhibit 20) appears to be incorrect as the footage shows that Constable Blades did not stand and observe the security guards attempting to calm down the plaintiff before the police approached the plaintiff; 3. Constable Blades was taken to page 3 in the narrative of the COPS entry (Exhibit M) where it states "police were standing at the front entrance of the hotel and observed a number of security guards escorting the accused, Johnny Raad, out the front doors of the hotel. At the time his wife was present and she appeared reasonably calm". Constable Blades agreed that this was not in his statement, that he intended to convey that the plaintiff had been physically removed from the hotel and that he did not see this occur. Constable Blades conceded that there were errors in the statement and that he did not see this but that is what he believed he saw when he prepared the COPS entry: T 553.28. He agreed that his recollection was fresh two hours after the events, but denied deliberately being misleading in the COPS entry to try to bolster the case against the plaintiff: T 554.1. Constable Blades also agreed that the COPS entry was different to paragraph 7 of his statement (Exhibit 20) where it suggests that police were outside the hotel and observed a number of security guards talking to the plaintiff: T 554.20; 4. Constable Blades was taken to the COPS entry at page 4 (Exhibit M) where he stated: "Police then released the accused and directed him to leave, which he refused and continued to argue". Constable Blades was asked whether the plaintiff shrugged off his hand or did he release him. Constable Blades said that the plaintiff's arm had pulled free from his grip and he started to walk on his own accord: T 555.31; cf T 555.49; 5. Constable Blades was taken to the COPS entry at page 5 (Exhibit M) where he stated: "Police requested the accused to go in the prisoner module of the caged vehicle and he refused by pushing backwards onto police. Police then had to use reasonable force to place him in the rear of the vehicle". 1. Constable Blades said that the plaintiff did push back or provide resistance and then conceded that he pushed the plaintiff into the police vehicle: T 556.13; T 556.32. He denied that the plaintiff landed on his knees or the force was not reasonable or that there was an intention to cause the plaintiff injury: T 556.37-.43. However, he conceded that he was annoyed with the plaintiff at this time: T 556.50; 2. Constable Blades was taken to paragraph 24 of his statement (Exhibit 20) which indicated that police released the plaintiff into the care of his wife and that the plaintiff remained outside of the police station for a long period of time and took pictures of police: T 557.8. Constable Blades said that he did not know where he got that information from but believed it was relayed to him by other officers: T 558.29. He denied that he locked the doors of Parramatta Police Station to prevent the plaintiff re-entering the station to complain about his treatment; 3. Constable Blades was taken to paragraph 19 of his statement (Exhibit 20) and he conceded that he did not mention that the vehicle that was stopped by him was a taxi. He agreed he wanted to convey that the plaintiff was in danger of being hit by the vehicle but the real purpose was that Constable Blades wanted to stop a taxi to enable the plaintiff to get a lift home (Exhibit 18). Constable Blades said he did not realise that the vehicle was a taxi until he had seen the footage again, although he accepts that he realised it was a taxi for the preparation of the film footage chronology (Exhibit 18); 4. Constable Blades denied the plaintiff's version of the conversation at the rear of the police vehicle as to whether Mrs Raad had enough money to get home for a taxi: T 581.50; 5. Constable Blades was taken to paragraph 28 of his statement (Exhibit 20) where he states that at the time of the incident he believed the accused was "moderately affected by alcohol or an unknown drug". He agreed that he did not refer to the possibility of the plaintiff being affected by an unknown drug in the COPS entry. He denied, however, that he was exaggerating the circumstances in order to have the best opportunity to have the plaintiff convicted: T 584.32; 6. Constable Blades was cross-examined in relation to his failure to obtain a statement from an "authorised person" from the hotel as to the plaintiff's exclusion from the licensed premises. Constable Blades said that he had been informed by security guards that the plaintiff had been told to leave the premises on the basis of intoxication and that he directed the plaintiff to leave the vicinity as an "authorised person" under the Liquor Act, Section 77: T 595.37-.47; 7. Constable Blades was taken to paragraph 9 of his statement (Exhibit 20) where it states: "The security [guard] gave many clear directions that he must leave the premises and the accused refused by standing at the front entrance of the hotel". Constable Blades appeared to concede that he did not hear the directions himself but had been told by the guards that the plaintiff had been told to leave the hotel on the grounds of intoxication: T 601.35; T 602.18; 8. Constable Blades conceded that the plaintiff was about 30-40 metres away from the licensed premises at the time he was arrested: T 604.38; 9. Constable Blades was taken to paragraph 16 of his statement (Exhibit 20) where he states that he completed an infringement notice for "excluded person remain in vicinity of licensed premises" and the plaintiff refused to accept the ticket. Constable Blades refused to accept that this was incorrect in the light of the infringement ticket given to the plaintiff (Exhibit F) but it seems that he was incorrect on this issue: T 612.45. 1. Constable Blades is an important witness in the defendant's case. The evidence establishes, or Constable Blades has conceded, that there are a number of errors in his COPS entry (Exhibit M) or issues in relation to the entry which was prepared by him between 5.02am and 5.23am on 10 June 2012 when the events relating to Mr Raad had occurred less than two hours previously and should have been fresh in his memory: 1. Contrary to the COPS entry, police officers were not standing at the front entrance of the Albion Hotel and observed a number of security guards escorting the plaintiff out the front doors of the hotel. Mr Raad had already exited the hotel when the police arrived; 2. Contrary to the COPS entry, when Mr Raad left the hotel his wife was not with him; 3. Contrary to the COPS entry, police did not stand about 10 metres away and allow the security guards to resolve the matter with Mr Raad. When they arrived Mr Raad immediately began to talk to Senior Constable Frith; 4. It is unlikely that Mr Raad would have enquired from police why he was excluded from the hotel as claimed as opposed to asserting that he had been wrongly excluded from the hotel; 5. Contrary to the COPS entry, police did not issue an infringement notice on Mr Raad for "Excluded person remain in vicinity of licensed premises". The notice (Exhibit F) was for "fail to leave premises when required". Constable Blades had access to Parts A and B of the notice when he completed the COPS entry; 6. Constable Blades did not hand the ticket wrapped around the licence to Mr Raad but to his wife. This is established by the film (Exhibit 1); 7. Contrary to the COPS entry, Constable Blades' oral evidence was not to the effect that he and Senior Constable Frith had to grab Mr Raad by each arm and "escort" him out near the road area; 8. The COPS entry suggests that police made contact with Mrs Raad and she arrived at the police station shortly after, whereas Mrs Raad's uncontested evidence was that she arrived there on her own initiative. 1. After Constable Blades obtained the film footage he prepared his written statement for the purposes of the Local Court proceedings: see Exhibit 20. The statement contains a number of statements which do not appear to be established on the evidence: 1. Paragraphs 8-9: that Constable Blades and other police observed the plaintiff talking to security guards for five minutes before approaching the plaintiff. The film evidence (Exhibit 1) shows that police approached the plaintiff immediately after they arrived at the front entrance; 2. Paragraph 9: that the security gave "many clear directions that the plaintiff must leave the premises." Constable Blades confirmed that he was told this and did not observe it; 3. Paragraphs 10-11: Constable Blades asserts that the plaintiff did not know where his wife was. Mrs Raad had exited the premises in full view of the plaintiff well prior to the police arriving; 4. Paragraph 12: Constable Blades asserted that he asked security guards to get a cup of water for the plaintiff. The film evidence shows Mrs Raad providing a drink (alleged by the plaintiff to be lemonade) not security guards; 5. Paragraph 13: Constable Blades states that he was informed by security guards that the plaintiff "was disorderly and quarrelsome with staff and was asked to leave". The film shows that Mr Raad was not quarrelsome with staff before leaving the hotel. Constable Blades does not assert in his oral evidence that he had been told this; 6. Paragraph 16: Constable Blades asserts that he completed an infringement notice for "Excluded person remain in vicinity of licensed premises" but this is contrary to Exhibit F; 7. Paragraph 17: Constable Blades said he and Senior Constable Frith grabbed the plaintiff and "assisted him outside of the venue". Whilst this is vague, Constable Blades' oral evidence does not assert that he walked the plaintiff to the end of the driveway holding his arm; 8. Paragraph 20: Constable Blades asserts that he was in fear that Constable Restuccia was going to be assaulted by the plaintiff. No evidence supporting this possibility was given by Constable Restuccia in her oral evidence although paragraph 20 does focus on Constable Blades' personal belief. 1. In the course of his evidence, Constable Blades readily conceded that he did not recall all the events of 10 June 2012, particularly those events not caught on the security camera, such as what involvement he had with Mr Raad at the police station. 2. The analysis above leads me to the conclusion that some real caution should be exercised in accepting the unsupported evidence of Constable Blades. His account shortly after the event (the COPS entry) had a number of relevant errors. I formed the opinion that Constable Blades' recollection was not strong where he did not have the film footage to refresh his memory. Although I did not form the opinion that he was consciously giving false evidence (contrary to the plaintiff's submissions), but rather was attempting to be truthful, his reliability requires careful consideration. Evidence of Senior Constable George Gedeon 1. Senior Constable Gedeon ("Constable Gedeon") gave oral evidence. He confirmed that he was on duty on 10 June 2012 with other police officers and that he was stationed with the Parramatta Local Area Command. He agreed that he attended the Albion Hotel and spoke to the licensee and undertook a walk through with the other police officers. He said that he could not recall embracing anyone whom he met on the walkthrough as the plaintiff alleged. He said he was only a few minutes in the hotel: T 616.35. 2. Constable Gedeon said that he saw the plaintiff outside in the carpark area and that he recalled that the police officers had been approached by security guards and informed that they had removed the plaintiff from the premises: T 616.49. He said he recalled that the plaintiff was arguing with the security guards. 3. Constable Gedeon denied that he had any contact with the plaintiff on 10 June 2012 (T 617.9) but recalled he was speaking very loudly and was argumentative: T 617.15. He denied that he had growled at the plaintiff or clenched his teeth at the plaintiff as the plaintiff asserted: T 617.50. He also did not recall that the plaintiff said that he would know that he was not intoxicated as he was standing near the plaintiff when he hugged a friend in the club: T 618.13. 4. In cross-examination Constable Gedeon conceded that he was a friend of Constable Blades although he did not socialise with him. He denied refusing to provide a statement for the purposes of the Local Court proceedings. He agreed that he had not completed any notes in his notebook of the events relating to the plaintiff on 10 June 2012 and was only relying on his recollection: T 620.1. He agreed that he was partly relying on what Constable Blades had said to him: T 620.10. 5. Constable Gedeon confirmed that the plaintiff was being very loud and argumentative and recalled him saying "I'm not going anywhere, my wife's inside". He denied that the plaintiff complained of being assaulted by a security guard: T 621.18. 6. Constable Gedeon gave evidence that the Albion Hotel driveway was about 20-30 metres long: T 623.32. He said the plaintiff walked down the driveway and then came back and was arrested on the driveway in the area near the footpath. He could not recall whether a police officer was holding the plaintiff while he was escorted to Harris Street but said it was a strong possibility: T 625.31. 7. Constable Gedeon appeared to me to have a limited recollection of the events involving Mr Raad on 10 June 2012. Whilst he appeared to be attempting to provide his evidence truthfully, his evidence was of limited value. In particular, he gave no evidence in relation to how Mr Raad was placed into the back of the police van after he was arrested. The medical evidence 1. The plaintiff gave limited oral evidence in relation to his alleged injury and its consequences which he claimed arose from his arrest. 2. The plaintiff's evidence was to the following effect: 1. That when he was pushed into the police van as he alleges that he landed on his knees and that it was very painful and he had trouble getting up: T 29.20. He said that his knees were "both painful at the end": T 29.26; 2. The plaintiff said that his knees were "fine" before the accident and that he had not had any major issues with his knees "at all ever" with no injuries: T 36.19-.24. He said he was able to squat before the incident and lift heavy weights: T 36.26-.30; 3. The plaintiff gave evidence that his knees were "a lot worse at present": T 34.22. The plaintiff said that he had had a "bilateral" operation on his knees and that he had been told by the doctor that the operation had not fixed "the issue": T 34.26. He said his knees started to lock up and he experienced extreme pain when that occurred. He said he was still getting clicking in his knees: T 34.21-.34. The plaintiff gave evidence that he found it hard to squat, lift heavy weights and sometimes to walk: T 34.36-.48. He said the pain in his knees was not always there but it came and went; 4. The plaintiff gave evidence that his business closed down in 2013: T 35.20-.45. However, there was no evidence given by the plaintiff that the closure of the business was in any way connected with pain in his knees. There was also no satisfactory evidence given by the plaintiff of the history of his pains in the knees and when the pain started and when it became worse. The plaintiff said that since 2013 he had been looking after his children while his wife had been working: T 35.48. In the future, he hoped to open a retail business perhaps to do with food: T 36.3-.10. Report of Dr Lee dated 4 February 2016 1. The plaintiff's solicitors obtained a medico-legal report from Dr Y Lee concerning the plaintiff dated 4 February 2016. The letter of instructions dated 10 January 2016 provided as follows: "The brief facts of Mr Raad's matter are that he was assaulted by police officers on 10 June 2012. As he was being loaded into the rear of a police vehicle, he was thrown forward into the tray and landed on his knees. He suffered some pain after the incident and saw his General Practitioner on 12 June 2012. From mid-2014 his knee pain became more constant and somewhat unbearable. The pain was associated with locking and clicking in both knees. In mid-2015 Mr Raad was referred to Dr Lieu, an Orthopaedic Surgeon. On 16 November 2015, Dr Lieu performed a bilateral knee arthroscopy on Mr Raad. For the purposes of our legal case we would want to know if the way in which Mr Raad landed on his knees on 10 June 2012 is consistent with his injuries. Further, we would like to know the effect of these injuries on his quality of life and the extent to which he will require treatment in the future." 1. Dr Lee's report was admitted as Exhibit K in the proceedings. Dr Lee examined the plaintiff on 15 January 2016 and at the time had radiological reports in relation to the plaintiff. Dr Lee is an orthopaedic surgeon. 2. In his report Dr Lee indicated that he had taken a full comprehensive history and had examined the plaintiff. The history taken which is set out in the report is generally consistent with the plaintiff's case including that the police officers pushed him into the police wagon and that he landed on the floor. The whole of the report suggests that Dr Lee was told by the plaintiff that he landed on the floor on his knees. The report indicates that the history taken from the plaintiff was that the plaintiff could not get up because his hands were cuffed. This is contrary to the plaintiff's evidence that he was able to get up from his position on his knees but with some difficulty: T 29.19-.30. The history given to Dr Lee was that the plaintiff's knees were painful when he left the police station in the early hours of 10 June 2012 and he continued to have pain and clicking in his knees after the incident. The history included that the plaintiff thought the symptoms would disappear and he did not seek help from his doctor straightaway. The history given was that the plaintiff was not sure when he first saw his doctor for his knee condition. The history provides that the plaintiff did not have any medical problems prior to the events in June 2012. 3. Dr Lee referred to the fact that the plaintiff had an arthroscopy performed by Dr Lieu on 16 November 2015 and commented as follows: "From the discharge note, on the right side, there was mild degenerative changes in the medial and lateral compartments. On the left side, there was a 1 cm osteochondral lesion on the medial femoral condyl and torn posterior horn medial meniscus. Debridement and partial menisectomy was performed." 1. On examination Dr Lee found that movement of both the plaintiff's knees was normal but there was tenderness in the knee which may be related to the arthroscopy and would improve with time (page 4). The radiological examinations were referred to by Dr Lee in his report (page 4). Dr Lee said that an ultrasound performed to the plaintiff's left knee on 11 April 2014 "appeared normal" (page 5). Dr Lee expressed the opinion that based on the plaintiff's description, the way in which he landed on his knees on 10 June 2012 was consistent with his injuries. As the plaintiff was handcuffed he could not protect himself and the injury to his knees "would be a direct impact type of injury" (page 5). Dr Lee noted that the plaintiff's MRI showed pre-existing degeneration. He further noted that the first entry in the general practitioner's notes relating to his knee problem was on 9 July 2014 when he had an x-ray of his knees. 2. Dr Lee referred to a general practitioner's note about the plaintiff complaining about severe pain in his right knee on 14 April 2015 which led to the plaintiff being referred to Dr Lieu, orthopaedic surgeon, on 3 June 2015. Dr Lee expressed the opinion that it was likely that the plaintiff had age related asymptomatic degeneration in his knees which was very common in the general population. He expressed the opinion that the injury described aggravated and triggered off the plaintiff's knee injuries. But for the injury, Dr Lee expressed the opinion that the plaintiff may not have required the arthroscopy at this stage of life. However, he also expressed the opinion that even without the injury his knees would deteriorate in the future but the injury has "hastened the process" by bringing on a limited knee function earlier (page 6). 3. Dr Lee expressed the opinion that the injury had caused significant changes in the plaintiff's quality of life and daily activities. Dr Lee recommended that the plaintiff should continue seeking physiotherapy assistance to strengthen his knee. Dr Lee concluded: "Mr Raad's symptoms will deteriorate at a faster pace due to the injury's aggravation [of] underlying degenerative conditions and he may require further arthroscopy's [sic] or surgery in the future." Oral evidence of Dr Lee 1. Dr Lee was cross-examined by counsel for the defendant in relation to his report dated 4 February 2016. Dr Lee confirmed that he prepared his report on the basis that the plaintiff had complained about severe pain in his right knee to his general practitioner on 14 April 2015 and was referred to Dr Lieu, orthopaedic surgeon, on 3 June 2015. 2. Dr Lee confirmed that he had prepared two drafts of his report but had not forwarded those drafts to the solicitors for the plaintiff for their comment. 3. Dr Lee said that Dr Lieu referred to an injury to the plaintiff's knees in his notes "a few years ago". He assumed that this was a reference to the injury when the plaintiff was arrested because he reviewed the notes of the general practitioner of the plaintiff, Dr Ghaly, and could find no entry in those notes relating to any other fall except the one where the plaintiff fell after he was placed into the police van. 4. Dr Lee confirmed his opinion that the problems with the plaintiff's knees were consistent with falling forward after being thrown or pushed into a police van: T 413.48. 5. Dr Lee conceded that a contemporaneous complaint of pain was relevant in assessing the cause of a pain. This was particularly the case with a traumatic injury and was an important factor: T 414.4-.22. 6. Dr Lee was taken to page 5 of his report and the first entry in the general practitioner's notes for 12 June 2012. He agreed that this entry related to a consultation two days after the alleged incident where the plaintiff was arrested and it appeared from the doctor's notes that there was no mention of a knee problem in that consultation: T 415.12. 7. Dr Lee was taken by counsel for the defendant to an ultrasound of the plaintiff's left knee dated 11 July 2014. Dr Lee confirmed that he did not refer to this ultrasound in his report because he had later radiological reports. The report of Dr Hiew concluded as follows: "No significant abnormality apart from mild inferior infrapatellar tendinosis. No other significant cause for the patient's pain is demonstrated." 1. It was put to Dr Lee that tendonosis was not a product of a traumatic event: T 417.15. Dr Lee disagreed with this and said that tendonosis can occur from a traumatic event and as at 2014 was most likely caused from the plaintiff being thrown into the police vehicle: T 417.22. However, he agreed there could be other causes for tendonosis which can arise from a patient being asymptomatic. Dr Lee gave evidence that tendonosis can be caused "by anything": T 417.25. He expressed the opinion that he relied on his clinical findings as opposed to ultrasound conclusions for his opinion. 2. Dr Lee was taken to page 4 of his report where he concluded that upon examination on the left side there was tenderness in all three compartments of the plaintiff's knee. He agreed that there were signs of early degeneration and early arthritis in the plaintiff's knee: T 417.34. Report of Dr Robert Drummond dated 3 August 2016 1. The defendant relied on a report of Dr Robert Drummond, orthopaedic surgeon, dated 3 August 2016. Dr Drummond had examined the plaintiff on that day. Dr Drummond was not required for cross-examination. No responsive report was provided by Dr Lee to Dr Drummond's report. 2. The history recorded by Dr Drummond is generally consistent with the plaintiff's evidence. Dr Drummond reports that the plaintiff indicated that at the beginning the pain was "not that bad" and that he did not seek an opinion from his general practitioner until "months later" (page 2). 3. Dr Drummond referred to the general practitioner's notes making a reference concerning a problem with the plaintiff's right knee on 24 January 2012, pre-dating the incident on 10 June 2012. The reference as recorded by Dr Drummond is as follows: "Complains of painful swollen right knee". 4. The next entry according to Dr Drummond relating to the plaintiff's knees was on 9 July 2014: "X-ray both knees NAD". Dr Drummond records the plaintiff complaining of a locking in his left knee developed with squatting and getting up from a chair with locking in the right knee following at a later date. Dr Drummond set out in some detail the arthroscopic surgery operation report of Dr Lieu relating to the arthroscopy performed on the plaintiff at Fairfield Hospital on 16 November 2015. 5. In relation to the alleged incident on 10 June 2012 where the plaintiff was pushed into the police wagon, Dr Drummond concluded: 1. That there was no pathology or aggravation or acceleration of pre-existing pathology to either the left knee or the right knee; 2. It was not probable that the incident in the police wagon on 10 June 2012 caused any traumatic pathology in the knees. Dr Drummond also expressed the opinion that there was no acceleration or aggravation of any pre-existing pathology in the knees by the incident. Dr Drummond relied on the fact that there was no incapacitating pain in either knee at the time. He expressed the opinion that if pathology had been caused or previous pathology aggravated then symptoms would have immediately followed the June 2012 incident and this did not occur. Dr Drummond noted that it appeared that it was not until July 2015, three years after, that symptoms were present and sufficiently severe to warrant investigation (presumably by a specialist); 3. Dr Drummond noted that it appeared that degenerative changes existed in the articular cartilage of the right knee when the plaintiff presented in January 2012 to his general practitioner. In Dr Drummond's opinion, this reflected degeneration which was already present and progressing as at that time. Dr Drummond stated that the pathology in the left knee suggested degenerate changes and was not linked to traumatic pathology caused by a fall; 4. In relation to his prognosis, Dr Drummond expressed the opinion that the pathology in the knees was not advanced and was not likely to cause incapacitating symptoms until the plaintiff was elderly. In his view there was no indication for immediate surgery; 5. Dr Drummond also expressed the opinion that there was no causal connection between the current symptoms and clinical signs and the alleged incident. He also stated that it was not likely that the mechanism of injury described by the plaintiff would cause the pathology demonstrated in the MRI of both knees. This demonstrated degenerative pathology not traumatic pathology. Whilst an osteochondral lesion which had been found in the plaintiff's knee could be caused by knee trauma, the mechanism of injury described by the plaintiff was not consistent with it. In the end, Dr Drummond expressed the view that the pathology was probably not traumatic but degenerative caused by age related degenerative changes (page 7); 6. The effect on the plaintiff's knees as described by the trauma on 10 June 2012 would in Dr Drummond's opinion be transient and minimal and not producing any symptoms or disability; 7. Dr Drummond expressed the opinion that ongoing physiotherapy or a further arthroscopy was not indicated having regard to the fact that the pathology was degenerative; 8. Dr Drummond expressed the opinion that it was not probable that the pathology diagnosed would impact on the plaintiff's capacity to perform retail work and that he was capable of standing, walking, sitting and driving without restriction; 9. Dr Drummond expressed the opinion that there was no requirement for gratuitous care nor commercial employment of domestic care for gardening; 10. Dr Drummond disagreed with Dr Lee's opinion that the age related asymptomatic degeneration in the plaintiff's knees was aggravated and triggered the symptoms as a result of the incident on 10 June 2012 as immediate symptoms would have followed the incident; 11. Dr Drummond was of the view that the injury has not changed the plaintiff's quality of life and daily activities and that he was capable of performing most tasks with the expected discomfort accompanying degenerative pathology. Factual findings 1. Having regard to all of the evidence and the submissions made on behalf of the parties, I make the following findings of fact: 1. On 9 June 2012 Mr and Mrs Raad had been working during the day: T 15.8. They decided to go out that evening and arranged a babysitter. Between 11pm and 12am Mr and Mrs Raad left their house and after some time driving around, decided to proceed to the Albion Hotel at Parramatta; 2. The Albion Hotel was a large and busy hotel at the time. It had bars, a poker machine area, an external beer garden area where people could smoke and a nightclub; 3. Mr and Mrs Raad arrived at the Albion Hotel at around 12.30am on 10 June 2012. Mr and Mrs Raad took it in turns so that one could consume more alcohol when they went out and the other was a nominated driver for the evening. On 9-10 June 2012 Mr Raad was the nominated driver; 4. At the time the plaintiff was a large gentleman weighing around 117kg: T 61.36; 5. Mr and Mrs Raad remained in the Albion Hotel between about 12.30am and about 3.20am. During that time, the evidence establishes that Mrs Raad had consumed two glasses of Moscato wine. Both Mr and Mrs Raad gave evidence that by 3.20am the plaintiff had only consumed one glass of Victoria Bitter beer and had just bought a second glass of Victoria Bitter beer from which he had taken "a few sips". That the plaintiff had consumed such a limited amount of alcoholic drink is surprising having regard to: 1. His size; 2. The period of two and three quarter hours during which Mr and Mrs Raad had been at the Albion Hotel; 3. The fact that for some of the time they were dancing; 4. That in the course of the trial the plaintiff indicated on a number of occasions whilst he was a witness that he suffered from "dry mouth" and needed to consume a large amount of liquid; and 5. There was no evidence that the plaintiff had been drinking water or soft drink in that period at the hotel. However, in the absence of any compelling conflicting evidence I find that Mr and Mrs Raad had only consumed the amount of alcoholic drink indicated above; 1. Having regard to this finding, the defendant's reliance on a defence under Sections 47-50 of the CLA should be rejected. In my view, the plaintiff was not intoxicated within Section 48 of the CLA. Further, I am satisfied that even if the plaintiff was intoxicated within Section 48, it was not the cause of, or a contributing factor to, any injury suffered by the plaintiff. Accordingly, I reject the defendant's pleading of contributory negligence under Section 50 of the CLA; 2. I accept the evidence of Mr and Mrs Raad that they had a conversation with a security guard concerning the availability of food and that soon after, the security guard asked the plaintiff to leave the Albion Hotel building and follow him outside where the plaintiff was told by the guard that he would not be allowed back in because the guard had formed the view that he was intoxicated; 3. The plaintiff's case was in substance that there was no reasonable basis for the security guard to form that view: plaintiff's submissions in chief at [109]-[112]. However, the plaintiff was a large man at the time, had been working that day, was no doubt somewhat tired having regard to the time, had been at the Albion Hotel for two and three quarter hours, it was after 3.00am and he may well have appeared to the security guard as being intoxicated. The documents which are Exhibit 14 which were completed by security guards and sent to Mr Stephens establish that the guards were of the view that the plaintiff appeared to be intoxicated, whether or not he in fact was intoxicated. Although there was some suggestion by the plaintiff in the evidence of some conspiracy to have the plaintiff excluded from the hotel, possibly so that a person could approach his wife without him being present, this is not established on the evidence. In the end, I am satisfied from the contents of Exhibit 14, by a review of the film which is Exhibit 1 and from the matters referred to above, that the security guard in question honestly and reasonably thought the plaintiff was intoxicated at the time and should be excluded from the Albion Hotel: see paragraph 72 of the defendant's written submissions. In making this finding I take into account the plaintiff's criticisms of Exhibit 14: plaintiff's submissions in chief at [109]-[112]. However, these documents were, it seems, prepared on or soon after 10 June 2012 and are thus contemporaneous or near contemporaneous; 4. I find that the plaintiff honestly believed at the time that he was not intoxicated and from his limited consumption of alcohol over the period at which he had been at the Albion Hotel, as found above, it would seem he was not intoxicated. I also find that the plaintiff was upset, indignant and possibly even outraged at the fact that he had been asked to leave the Albion Hotel and had been refused re-entry. He had been a person who had been a customer at the hotel on a number of prior occasions. The plaintiff's reaction as described is clear from his evidence, the police officers' evidence and Exhibit 1, the film. He clearly believed that a grave injustice had been caused to him and that his exclusion was not warranted. However, instead of accepting that an unfair decision had been apparently made and going home, the plaintiff decided to stay and remonstrate with the security guards; 5. Contrary to the plaintiff's evidence, I find that the plaintiff remonstrated with the security guards for some time, was speaking in a loud voice and was waving his arms around as he spoke. Such a finding, in my view, is established by the film in Exhibit 1 (although it has no sound), Mrs Raad's evidence and Exhibit 14. I find that the plaintiff did not accept his exclusion and was arguing with the security guards in a loud voice in relation to the validity of his exclusion. The plaintiff believed that he had been unfairly treated; 6. Although the film which is Exhibit 1 is not completely clear, the firm impression I gained from it was that the security guard identified by the plaintiff as Ali advanced on the plaintiff in a menacing fashion soon after he had been excluded from the hotel and probably pushed the plaintiff with his chest and his hands. In this regard I accept the evidence of Mr and Mrs Raad, although the plaintiff had the guard pushing with his hands and chest whereas Mrs Raad had the guard pushing with his chest and shoulder. The film shows one of the other security guards directing the guard Ali out of the way which is consistent with contact having occurred between the plaintiff and Ali. I find that at no stage was the plaintiff the aggressor; 7. The conduct of this security guard aggravated the plaintiff further and increased his sense of upset and outrage at the way he had been treated. The plaintiff was extremely upset at this stage and continued to remonstrate with the security guards in relation to his treatment. Again, instead of leaving the premises and complaining about the guard's conduct at Parramatta Police Station, the plaintiff chose to remain. He requested his wife to call the police but she did not do so. I accept her evidence on this issue. She had come out of the Albion Hotel shortly before the plaintiff was assaulted by the guard. It seems unclear how the police were called but it is likely that one of the security guards approached police who were already within the Albion Hotel conducting a high visibility police walkthrough; 8. The plaintiff claimed that the police officers, including Constable Gedeon, had been standing near the table where he and his wife were standing for over an hour whilst they were in the Albion Hotel. In his letter which is part of Exhibit 7 the plaintiff indicated that the police were near he and his wife "for at least 15 minutes or so" and Senior Constable Frith said that being present at the Albion Hotel for more than an hour would have been unusual although he conceded that being present for half an hour was possible. Constable Gedeon said that police were only present for a few minutes in the hotel. Overall, I find that the police had not been at the premises for anywhere near one hour but for a substantially lesser period of somewhere between 10-20 minutes. I note that Exhibit 1 discloses a number of police entering the Albion Hotel only a relatively short period before the plaintiff left with the security guard; 9. The plaintiff and Mrs Raad waited outside the entrance to the Albion Hotel for a period of about 10 minutes until the police arrived. I accept the plaintiff's evidence as to this which is confirmed by Exhibit 1. The plaintiff remained highly upset during this period. In his letter dated 11 June 2012 the plaintiff said that when the police came he was "hyperventilating due to being upset". The fact the plaintiff said this in the letter shows the degree to which he was upset at his treatment. I find that the front entrance of the hotel was about 30-40 metres from the footpath on Harris Street: see T 604.38; T 623.32; 10. I accept the plaintiff's evidence that he orally complained to the police about his exclusion and the assault upon their arrival. I find this even though the plaintiff did not state in his evidence precisely what he said to the police. Although Constable Frith could not recall the plaintiff complaining about being assaulted and Constable Blades denied it (T 559.4) as did Constable Gedeon (T 621.18), I find that he did. It would have been highly unlikely that the plaintiff did not complain to the police about the assault in circumstances where it had occurred and where he claims that he had remained at the hotel to do so. The plaintiff was also loudly asserting his rights and a complaint about the assault was very likely. I also find that the plaintiff complained to the police in a loud and argumentative fashion and whilst throwing his arms around. This seems to be confirmed by Exhibit 1 and Mrs Raad as well as the evidence of the police officers. I also find that the plaintiff was not intending to be unco-operative or aggressive in doing so but that this reflected his degree of upset and outrage at what he had perceived to be his unfair and improper treatment by the security guards; 11. The film shows Senior Constable Blades apparently writing down some notes but these were not about the alleged assault: see Exhibit 17. This was unfortunate and the police should have treated the plaintiff's assault complaint seriously and told him that they would investigate it. It may be that the police thought that the assault was somehow connected with the plaintiff being removed from the premises. The police conduct in apparently not treating it seriously by not taking notes clearly outraged and upset the plaintiff even further. By this stage, I find that the plaintiff was so incensed that his sole aim was to plead his case about the way he had been treated and he paid little attention to what was being stated to him including by the police present; 12. I find that either Senior Constable Frith or Constable Blades, or probably both, directed the plaintiff to leave the premises (being the hotel property) as he had been excluded by the security guards. The plaintiff chose not to do so and to remain putting his case. It may well have been that he was so upset that he did not hear the directions being given to him by the police officers. In this regard I prefer the evidence of Senior Constable Frith (as confirmed by Constable Blades and Constable Gedeon) that directions to leave the premises were given by the police to the plaintiff: see the defendant's written submissions at paragraphs 124 and 152. I find that the plaintiff was complaining loudly at this time, appeared upset and quarrelsome and was waving his arms about. In my view and contrary to the plaintiff's written submissions, he reasonably appeared to police to have been intoxicated at the time even if he was not. The plaintiff was clearly entitled to complain to the police about the assault and in my view it was reasonable for him to remain outside the hotel for a period to do so. I accept the plaintiff's submissions in chief in this regard: see [215](ii). However, I also find on the weight of the evidence that the plaintiff remained well after he had notified police of the assault and after he had been directed to leave by the police officers. 13. I reject the plaintiff's submissions that police should have subjected him to an alcolyser test: submissions in chief at [124]-[125]. There was no obligation on them to do so and it would unnecessarily and unreasonably restrict police in their duties if they were obliged to test every excluded patron who requested such a test. 14. At some stage the plaintiff was asked by police for his driver's licence. At about this stage, with the plaintiff not departing the premises as directed, Constable Blades wrote out the penalty notice which he then gave with the driver's licence to Mrs Raad. I reject the suggestion that the plaintiff refused to accept his licence and the penalty notice as this seems contrary to the plaintiff's evidence and Exhibit 1. At this time I find that Constable Blades directed the plaintiff to leave the vicinity of the hotel. This was the evidence of Constable Blades, and is consistent with Exhibits 17 and M and was effectively conceded by the plaintiff: T 68.38 cf; T 69.35; 15. I find that Mr and Mrs Raad then proceeded down the driveway of the Albion Hotel towards Harris Street. Although there is some evidence from Senior Constable Frith and Constable Blades that they held each arm of the plaintiff to get him "on his way" down the driveway, I find that this did not occur but that the group of police officers followed the plaintiff and Mrs Raad down the driveway in order to ensure that he left the vicinity of the hotel. I substantially accept the plaintiff's submissions in chief on this issue: see [21] and [156]-[159]. Senior Constable Frith's evidence on this issue was quite vague. Constable Blades' evidence on the issue was inconsistent with his statement (Exhibit 20, paragraph 17); 16. To the plaintiff, the officers following him down the driveway aggravated his upset and on his own evidence made him "paranoid". By the time the plaintiff arrived at the footpath on Harris Street at the bottom of the driveway from the entrance to the Albion Hotel I find that the plaintiff was extremely upset and outraged in relation to what he perceived to be his unfair treatment at the hands of the security guards and police and continued to remonstrate with police. I also find that the police were reasonably justified in the circumstances in following the plaintiff down the driveway to ensure that he left the vicinity of the Albion Hotel; 17. The plaintiff gave evidence that he attempted to cross Harris Street twice but then became extremely concerned that something might happen to him on the other side of the road near the park. He also gave evidence that he came back because his wife had not followed him. In my view it is unnecessary to make a finding in relation to why the plaintiff did not cross the road. What is clear is that the plaintiff returned to the footpath. From the film it appears that he continued to complain to police. The film shows him walking away from the driveway entrance and then returning towards police with his arm extended. I reject the plaintiff's factual submissions in chief to the contrary: see [189](iii), [193]. I accept the defendant's factual submissions on this point which are consistent with the film Exhibit 1: see defendant's submissions at [135]. The plaintiff submits that he only walked towards police not towards the entry driveway to the hotel. In my view, in walking towards police the plaintiff could reasonably be regarded as walking towards the hotel driveway. At about this time the police arrested the plaintiff; 18. There is a suggestion by Constable Blades that the plaintiff approached Constable Restuccia in a menacing manner. Constable Restuccia herself gave no evidence of this and I reject the suggestion that any reasonable person, including the police officers present, could have formed the view that there was any risk from the plaintiff to Constable Restuccia at the time. In my view, Constable Restuccia would very likely have remembered this if it had occurred. I accept the plaintiff's written submissions in chief on this issue: see [93], [196]. There is also some suggestion from Constable Blades that the plaintiff resisted his arrest on a number of occasions: see Exhibits 17 and M. Having viewed the film and observed the plaintiff giving his evidence on this issue, I do not accept that the plaintiff resisted his arrest in any way. However, I do find that the police in all the circumstances were reasonably justified in forming the belief at the time that the plaintiff was refusing to leave the vicinity of the hotel by him approaching them complaining after walking away from the driveway. In my view, this clearly is the firm impression given by Exhibit 1; 19. The plaintiff gave evidence that he was not told why he was arrested. Mrs Raad did not hear anything said to the plaintiff as to why he had been arrested. Senior Constable Frith said that he did not recall the plaintiff being told why he was not free to leave as he (Constable Frith) was walking across the road to open the police van door but said "it would have been done, that's what we do": T 361.2. Constable Restuccia could not recall even whether she was on the footpath area when the plaintiff was arrested: T 422.37. Constable Blades' evidence was that he did tell the plaintiff why he had been arrested; 20. The question arises for consideration as to whether Constable Blades and/or Constable Gedeon informed the plaintiff as to the reason why he had been arrested. In my view it is unlikely that Mrs Raad would have heard this if it had been said due to the fact that her husband was being arrested and she was outside the group of police. I also find that the plaintiff would have been preoccupied with the fact he had just been arrested. On his own evidence he was very upset and "paranoid" at the time. The arrest would have further upset him. I consider it likely in all the circumstances and I find that the plaintiff was told that he was under arrest and the reason for it by Constable Blades as asserted: see T 489.24; T 489.49; T 510.27. I make this finding, taking into account the inconsistencies in Constable Blades' evidence discussed above and the plaintiff's written submissions; 21. I find that the plaintiff was then escorted by a number of police officers across Harris Street to the police wagon, the back door of which had been opened by Senior Constable Frith. I accept the plaintiff's evidence which seems to be confirmed by the film evidence that he did not resist arrest in the course of that being done; 22. I accept the plaintiff's evidence that there was a step into the police vehicle and that he had commenced getting into the police vehicle with his hands handcuffed behind his back when the conversations occurred between himself and his wife and the comment was made by Constable Blades as to his wife having money. I accept that these conversations occurred as they are believable and confirmed by Mr and Mrs Raad. I prefer their evidence to that of Constable Blades on this issue; 23. An important issue arises for consideration as to whether the plaintiff was "pushed" in a strong fashion into the police vehicle, landing on his knees. At the time the plaintiff was handcuffed behind his back. He was a large man weighing 117kg. He had just been arrested and was being placed into the police vehicle. He was raising a legitimate issue with his wife as to whether she had money for the purposes of a taxi. The police in those circumstances, in my opinion, needed to exercise care in assisting the plaintiff into the police vehicle. He could not use his hands to prevent injury if he fell. 24. Having considered all of the evidence and the seriousness of making such a finding I accept the evidence of the plaintiff and Mrs Raad that the plaintiff was strongly pushed into the back of the police vehicle by police officers who included Constable Blades and that he landed heavily on his knees. I find that such conduct by the police officers was unreasonable and involved the use of excessive force in the circumstances. There was no resisting of arrest by the plaintiff and having regard to his vulnerable state with his hands handcuffed behind his back some real care should have been exercised. I find that there was no reasonable basis for forming the view that the plaintiff was resisting getting into the police vehicle. I carefully observed Constable Blades giving evidence on this issue and I prefer the evidence of Mr and Mrs Raad that Mr Raad was strongly pushed by police; 25. Constable Blades conceded in his oral evidence in cross-examination that he pushed the plaintiff into the police vehicle (T 556.13; T 556.32) and that he was annoyed with the plaintiff at the time (T 556.50). This evidence should be contrasted with Constable Blades' evidence in chief: T 490.30-.38; 26. I find that the plaintiff landed on his knees in the back of the police vehicle and that this caused some pain to his knees. I also accept the evidence of the plaintiff that he had some trouble getting up from that position to sitting on the seat in the back of the police vehicle; 27. The plaintiff was I find somewhat traumatised by his arrest and outraged at what he thought was unfair treatment. The plaintiff was then taken in the police vehicle to Parramatta Police Station; 28. I accept the evidence of Senior Constable Rogers in relation to the plaintiff's treatment while he was at the police station. I also accept the accuracy of the Custody Management Record completed by Senior Constable Rogers. I think it likely that the plaintiff was upset and outraged in relation to his treatment and that he refused to co-operate fully with Senior Constable Rogers and, from his argumentative and unco-operative manner at the police station, probably appeared to Senior Constable Rogers to be intoxicated, whether he was or not. I find that the plaintiff's recollections were poor in relation to what occurred at Parramatta Police Station which is not surprising in the circumstances having regard to his upset at being arrested. I reject the plaintiff's factual submissions in chief in relation to the evidence of Senior Constable Rogers: [104]-[108]. I find that the plaintiff was treated properly at all relevant times whilst in custody, including by Senior Constable Rogers; 29. I find that the plaintiff was in due course released from the police station. This was at 4.53am: see Exhibit 12. A major issue was made at the hearing in relation to whether Constable Blades intentionally locked the plaintiff out of the police station. Parramatta Police Station was a busy police station at the time and I find that such a lockout did not occur as it would have prevented other people entering the police station. The plaintiff himself did not see Constable Blades lock the door. I prefer Constable Blades' evidence on this issue and am not willing to infer that he locked the station door so that the plaintiff could not enter; 30. I find that the criminal charge of "excluded person remain in vicinity of licensed premises" was heard in the Parramatta Local Court in late 2012 and on 23 January 2013 the Magistrate dismissed the charge; 31. The evidence in relation to the alleged injury to the plaintiff's knees was very limited and unsatisfactory: T 34.21-36.30. The evidence shows that the plaintiff's business closed down in 2013: T 35.45. No evidence was led of any connection between the plaintiff's knee injury and the closure of the business. It is also noted that surprisingly no relevant evidence was led from Mrs Raad in relation to the plaintiff's alleged knee injuries or restrictions; 32. The plaintiff claims that his knees were "fine" prior to the accident and that he never had any major issues with his knees: T 36.19-.25. However, the report of Dr Drummond refers to the plaintiff's general practitioner's notes on 24 January 2012 where they state "painful, swollen right knee". Dr Drummond was not cross-examined. It seems that the plaintiff attended his general practitioner two days after the accident and did not complain in relation to his knees. The first complaint in relation to the plaintiff's knees to his general practitioner after the incident recorded in the general practitioner's notes was on 9 July 2014 (over two years later) and the referral by the general practitioner to an orthopaedic surgeon was not until June 2015, some three years after the accident. I take into account that doctors' notes may be limited and that errors do occur in recording history: see Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 at [144]; 33. Both doctors whose reports were in evidence noted that the plaintiff had degenerative problems with his knees at the time of the accident. As indicated above, very limited evidence was led in chief from the plaintiff in relation to his knees: see T 34.21-36.30. Having regard to that limited evidence and the chronology of complaints by the plaintiff to his medical practitioners, I am not satisfied on the medical evidence that the plaintiff's current problems with his knees were linked to the incident on 10 June 2012. In this regard I prefer the evidence in the report of Dr Drummond to that in the report of Dr Lee. In my view, Dr Drummond's report is far more comprehensive and reasoned than Dr Lee's report. The lack of complaint by the plaintiff to his doctors for some two years after the incident in my view strongly supports the medical opinion of Dr Drummond. In the end, I am not satisfied that the plaintiff's current complaints in his knees are linked to the plaintiff landing on his knees when placed in the police vehicle on 10 June 2012; 34. I also find that the evidence does not establish to the necessary Briginshaw standard that there was any actual intention in the police officers placing the plaintiff into the police wagon in order to be conveyed to Parramatta Police Station to cause injury to the plaintiff. There was no evidence of any statement which would suggest this and the pushing of the plaintiff into the vehicle is equally consistent with the police becoming impatient and annoyed with the plaintiff and wishing to get on with the task of conveying him to Parramatta Police Station, whilst exercising unreasonable force in placing him in the wagon. The evidence does not satisfy me to the Briginshaw standard that the police involved had this intention; 35. It is necessary to consider whether Constable Blades, as the relevant prosecutor, had a malicious intent in bringing or continuing the proceedings against the plaintiff. As set out above, there are many errors in the COPS entry (Exhibit M) and the statement for use in the Local Court (Exhibit 20) which raise real doubts about the reliability of Constable Blades' recollections. The main attacks on Constable Blades were on his credit, the reliability of Exhibits M and 20 which he largely prepared and the strength of the evidence against the plaintiff, particularly whether Constable Blades had sufficient evidence in relation to whether an "authorised person" within Section 77(1) of the Liquor Act 2007 (NSW) had refused to admit or turned out the plaintiff from licensed premises on the basis that he was "intoxicated", such that Constable Blades should be inferred to have initiated or maintained the proceedings against the plaintiff maliciously and without reasonable and probable cause: see the plaintiff's written submissions in chief at [135]-[172]; [200]-[216]; 36. Constable Blades gave evidence that he was told by security guards that the plaintiff had been asked to leave because he was intoxicated and that he (Constable Blades) was the authorised person within the Liquor Act who had directed the plaintiff to leave the vicinity of the Albion Hotel as he independently formed the view the plaintiff was intoxicated: T 477.37-.45; T 586.39-588.39; T 595.29-.37. See also the evidence of Constable Gedeon at T 616.49; 37. Under Section 77(1) of the Liquor Act an "authorised person" means "a licensee, an employee or agent of a licensee or a police officer". 38. The film (Exhibit 1) shows the plaintiff to have been refused entry to the hotel by a security officer who, in that role, must have been an employee or at least (I infer) an agent of the licensee. This does not seem to be disputed by the plaintiff in these proceedings: T 59.31-.35. Senior Constable Frith and Constable Blades also, as I have found, asked the plaintiff to leave the vicinity of the hotel as they formed the view the plaintiff was intoxicated; 39. The fact that Constable Blades did not have a statement from a security guard when the matter came before the Local Court is not to the point. In my view he had reasonable and probable cause to believe that the fact the plaintiff was excluded by an authorised person and refused re-entry by an authorised person would not be in issue because of the film (Exhibit 1): cf plaintiff's written submissions in chief at [210]-[216]; 40. I also find that Constable Blades was not acting maliciously – he believed that the plaintiff had been excluded and refused entry because of intoxication; the plaintiff reasonably appeared intoxicated to him even if he was not; and the plaintiff had been directed by him (and Senior Constable Frith) to leave the vicinity of the hotel in circumstances where he (Constable Blades) was an authorised person under the Liquor Act. The fact Constable Blades did not have a statement from the guard may have been an omission in collecting all evidence to establish the lead up to the offence. However, it does not in my view establish a dominant malicious motive; 41. Overall I accept Constable Blades' evidence on this issue, whilst taking into account the errors in the COPS entry (Exhibit M), his statement (Exhibit 20) and the submissions made by the plaintiff in relation to his reliability. Applicable legal principles Introduction 1. As stated above, the plaintiff brings claims for damages against the defendant in the torts of assault, battery, false imprisonment and malicious prosecution. Aggravated and exemplary damages are also sought in relation to each of the torts pleaded. Croucher v Cachia [2016] NSWCA 132 1. In Croucher v Cachia [2016] NSWCA 132, the Court of Appeal considered an altercation between two neighbours which led to one being seriously injured by gardening shears wielded by the other. The injured party brought actions in battery and negligence in the alternative. The defendant denied that he intentionally or negligently injured the plaintiff. The Court of Appeal considered the application of Section 3B(1)(a) of the Civil Liability Act 2002 (NSW) ("CLA"). 2. Sections 3B(1)(a) and 21 of the CLA provide as follows: "3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person—the whole Act except: (i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and (iii) Part 2A (Special provisions for offenders in custody)." "21 Limitation on exemplary, punitive and aggravated damages In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages." 1. In Croucher v Cachia Leeming JA gave the leading judgment. Beazley P and Ward JA agreed with Leeming JA's reasons. 2. Leeming JA stated the following in relation to the application of Section 3B to the facts of that case at paragraphs [31]-[35] and [115]-[118]: [31] The consequence of s 3B(1)(a) (noting that no question of sexual assault or sexual misconduct arises in this litigation) is that a key question is whether Mr Croucher is liable "in respect of an intentional act that is done by the person with intent to cause injury or death". If so, then various limiting provisions on damages in the Act, including the prohibition upon exemplary damages in s 21, cease to apply. [32] The primary judge did not mention s 3B(1)(a). Her Honour adopted the approach which appears to have been common ground between the parties that the effect of s 3B(1)(a) was that most of the provisions of the Civil Liability Act did not apply to the alleged battery (irrespective of how it was established), but did apply to the alleged negligence (irrespective of how it was established). It may be that paragraph 7 of the pleading was drafted with a view to achieving those results, although if so it would have been preferable to refer to the section in terms and not to depart from the statutory language. [33] There is some subtlety in the application of s 3B(1)(a) and s 21. It will be seen that s 3B(1)(a) does not operate upon the particular cause of action, but instead upon the particular act which gives rise to the civil liability and the intent of the person doing that act (I pass over the question whether and if so how s 3B(1)(a) applies to intentional omissions to act). This was the point made by Basten JA in Dean v Phung [2012] NSWCA 223 at [10]: "the statutory scheme is not identified by reference to a particular cause of action". [34] A cause of action in battery may be established where the defendant's conduct is either intentional or alternatively merely negligent. The former would engage s 3B(1)(a) and the latter would not. In other words, the language of "intentional tort" is an unsafe guide to whether s 3B(1)(a) is engaged; it is necessary instead to look at the character of the underlying conduct, as explained in White v Johnson [2015] NSWCA 18 ; 87 NSWLR 779 at [132]. [35] Not only is s 3B(1)(a) directed to the character of the conduct rather than the nature of the cause of action; the same is true of s 21, even though that section refers to "negligence". It is to be recalled that "negligence" is defined in s 5 more broadly than the tort to mean "failure to exercise reasonable care and skill". That definition is expressed to be only for the purposes of Part 1A. An identical definition is likewise given in s 27 for the purposes of Part 3. Section 21 is in Part 2, in which Part "negligence" is not defined. However, it has been held that s 21 is to be read as extending to all cases, however pleaded, where damages are awarded flowing from a failure to exercise reasonable care and skill: New South Wales v Ibbett [2005] NSWCA 445 ; 65 NSWLR 168 at [118] (Ipp JA) and [200]–[209] (Basten JA). (I shall put to one side how s 21 applies to the circumstances identified by Gleeson CJ, McHugh, Gummow and Hayne JJ in Gray v Motor Accident Commission [1998] HCA 70 ; 196 CLR 1 at [22]: "there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff".)" … "[115] As noted above, s 3B(1)(a) excludes the applicability of many sections of the Civil Liability Act to "civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death". [116] Her Honour appears to have proceeded implicitly on the basis that the cause of action in battery is one which engages s 3B(1)(a) and therefore is not subject to the limitations of the Civil Liability Act. Section 3B(1)(a) would undoubtedly apply if there were a finding that Mr Croucher had intended to injure Mr Cachia, but on balance I consider that the better reading of the judgment is that her Honour found merely that he was recklessly indifferent to the prospect that opening and shutting the shears and thrusting them at Mr Cachia would cause injury. [117] It is far from clear that conduct which is reckless, even if it amounts to an "intentional tort" such as battery, engages s 3B(1)(a). It is perfectly clear that a battery which involves merely negligent conduct will not engage s 3B(1)(a). This is because, as noted above, s 3B(1)(a) looks to the nature of the conduct found to occur, rather than to the cause of action which has been pleaded. [118] Basten JA referred to the "somewhat awkward terminology of s 3B" in New South Wales v Ibbett [2005] NSWCA 445 ; 65 NSWLR 168 at [197]. In Hayer v Kam [2014] NSWSC 126, when dealing with a strike out application, Hoeben CJ at CL expressed the view that, subject to authority, he would have accepted the submission that s 3B(1)(a) "excluded any reliance upon concepts such as 'recklessness'": at [38]–[39], a view which I regard as being not without force. However, even so his Honour regarded an allegation of recklessness as sufficiently arguable not to be struck out. It may also be noted that D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, 2013, Lawbook Co) at 55–56 notes that the position is unclear but expresses the view that "it would be consistent with the purpose of the exclusion that recklessness be sufficient for the purposes of s 3B(1)(a)" [emphasis added]. 1. Accordingly, it appears from that authority that unless it could be established that the civil liability of a person in respect of an intentional act was done by the person with intent to cause injury or death or perhaps recklessly, an intentional act tort only negligently causing injury would fall within the CLA. That is because Section 3B(1)(a) of the CLA looks to the nature of the conduct found to have occurred, rather than to the cause of action which has been pleaded. I generally accept the plaintiff's written submissions in chief on this issue at [198]-[199]. 2. In the present case, as I have found above, I do not accept that Constable Blades and the other police officers involved, pushed the plaintiff into the police van intending to cause him injury. Neither is there evidence, in my opinion, to suggest that they acted recklessly in that regard. Accordingly, in relation to any injury arising from the plaintiff being pushed into the police van, that would appear to have been done negligently and thus the CLA applies. This will be considered further below. 3. The other torts all seem to involve intentional acts not causing negligently inflicted injury and would thus fall outside the CLA. Counsel for the plaintiff accepted in oral submissions that any battery arising from an unlawful arrest did not cause any actual injury and was properly to be considered as a fact which was part of the alleged tort of false imprisonment. 4. The decision in Croucher v Cachia also provides guidance in relation to the torts of battery and trespass to the person. Leeming JA stated the following at paragraphs [20]-[25]: "[20] Battery is one of three forms of trespass to the person, the others being assault and false imprisonment. While it is conveniently and conventionally labelled as an "intentional tort", in contrast with negligence, such labels can obscure the necessary analysis of (a) the elements of the tort and (b) how the tort is affected by statute. As it is put in Clerk & Lindsell on Torts (20th ed, 2010, Sweet & Maxwell) at 986, "in this context 'intention' has a very particular meaning". [21] A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was "utterly without fault". The requisite direct contact will be present if the defendant uses an instrument (such as gardening shears): Darby v DPP [2004] NSWCA 431 ; 61 NSWLR 558 at [73]. [22] Although battery is an intentional tort, a battery may occur when the defendant is merely negligent. It was in those circumstances that a unanimous High Court said in Williams v Milotin (1957) 97 CLR 465 at 474 that "[i]t happens in this case that the actual facts will or may fulfil the requirements of each cause of action" (ie battery and negligence). [23] Within the allegations concerning battery, Mr Cachia's pleading alleged that "[t]he attack was intentional and designed to inflict serious injury" (para 7). That allegation was, strictly speaking, unnecessary in order to establish liability (although, arguably, the allegation was intended to engage s 3B(1)(a) of the Civil Liability Act thereby permitting the award of damages at common law including exemplary damages — see below). It is clear law in this country that trespass to the person caused by a blow does not require the plaintiff to prove anything about intention. I cannot put the point more clearly than did Jacobs JA, with Manning and Moffitt JJA agreeing, in Timmins v Oliver (unreported, New South Wales Court of Appeal, 12 October 1972). Jacobs JA was writing three months after the commencement of the Supreme Court Act 1970 (NSW) which would bring to an end common law issue pleading refined by Baron Parke which had been said by Cotton LJ, shortly after it had been abolished a century earlier in England, in Spedding v Fitzpatrick(1888) 38 Ch D 410 at 414, to "conceal as much as possible what was going to be proved at the trial". Jacobs JA rejected a demurrer to two bare declarations alleging that the plaintiff had sustained injuries from the defendants driving a motor boat against him, saying: "Nothing more has ever been required in an action based on trespass than an allegation of the battery and it is too late in the day to change this now. … Can we as the curtain falls for the last time on declarations in trespass which have held the stage for centuries say that the play has all this time been played wrongly and according to a bad script? I think not." [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 442at [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])" (emphasis added). 1. Croucher v Cachia seems to stand for the following relevant propositions: 1. A defendant who directly causes physical contact with the plaintiff will commit a battery unless the defendant proves that the defendant was utterly without fault. In the present case the police officers concerned would have to show that any battery occurred within their lawful authority; 2. Although battery is an intentional tort, a battery may occur where the defendant is merely negligent; 3. Trespass to the person caused by a blow does not require the plaintiff to prove anything about intention; 4. In relation to a trespass to the person, the onus rests on the defendant to show that the trespass was committed by the person utterly without his fault and without negligence; 5. Negligence means an absence of fault on the part of the defendant; 6. The CLA will apply to an intentional tort if the injury to the plaintiff giving rise to civil liability was occasioned by an intentional act without the intention to cause injury or death. Relevant Legislation 1. Sections 99(1)-(3), 230 and 231 of LEPRA in force at the relevant time are as follows: "99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person." "230 Use of force generally by police officers It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function." "231 Use of force in making an arrest A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest." 1. Section 99 of LEPRA in the relevant form applicable in these proceedings was considered recently by the Court of Appeal in State of New South Wales v Robinson [2016] NSWCA 334. The Court stated the following in a joint judgment at paragraphs [31]-[35]: [31] Section 99 is directed to the circumstances in which an arrest may be effected without a warrant. [32] Pursuant to s 99(1), a police officer who comes across a crime in the course of its commission, or who encounters a person who has just committed a crime, may arrest the person without a warrant. A police officer may also arrest without a warrant under subs (1) where a person has committed a serious indictable offence for which the person has not been tried. The latter power would be exercisable, for example, if the police officer, upon coming across a person, was aware, or on making inquiries became aware, that the person was a person who satisfied the description in subs (1). This could occur in any number of situations, including where the person was stopped at a random breath testing station, or was in premises the police were entitled to enter. [33] Pursuant to s 99(2), a police officer may also arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. It is neither necessary nor possible to set out all the circumstances in which or the basis upon which a police officer may reach the required state of suspicion. It would obviously include circumstances in which information had been provided to the police officer or enquiries were made by the police officer which indicated that the person had just committed an offence. The mere fact that information had been provided may not be sufficient in a given situation, as the suspicion must be one that is formed on reasonable grounds. That will be a question of fact in each case. [34] Section 99(3), unlike subs (1) and (2), does not confer a power of arrest upon a police officer. It operates as a constraint on the powers conferred by subs (1) and (2). A police officer is prohibited from arresting a person for a particular purpose, namely, the purpose of taking proceedings against the person for an offence, unless the conditions stated in s 99(3) are satisfied. Those conditions are: • the police officer must have a suspicion that it is necessary to arrest the person to achieve at least one of the purposes specified in (a)–(f); • the police officer must have reasonable grounds for forming that suspicion. [35] It follows that the State, in order to demonstrate that the police officer complied with s 99(3) of the Act, does not have to establish that it was necessary to arrest the person for the purposes of taking proceedings against him or her for the offence. Section 99(3) is enlivened when a police officer has arrested a person for the purpose of taking proceedings against that person for an offence. In that situation, the arrest is not lawful unless the State establishes that the conditions specified in s 99(3) are satisfied." (emphasis added) 1. The Court of Appeal also held that whether the arresting officer suspected on reasonable grounds that the arrest was necessary was determined by asking whether the State had established that: 1. The arresting officer honestly believed that the arrest was necessary for one of the purposes set out in Section 99(3); 2. The decision to arrest by the arresting officer, when reviewed afterwards according to the information known to the arresting officer at the time of the arrest, was made on reasonable grounds. See Robinson at [27] and [43]-[44]. 1. In his oral submissions, Counsel for the plaintiff also referred me to the decision of Dowse v State of New South Wales [2012] NSWCA 337. In that case Basten JA (with whom McColl and Hoeben JJA agreed) stated as follows at [26]-[27]: "[26] While it is true, as Lord Hope explained in O'Hara, that there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion, these are not abstract and independent elements. They justify a deprivation of liberty which in turn is part of an ongoing process by which the person arrested must be taken before an authorised officer to be dealt with according to law: Law Enforcement Act, s 99(4). In other words, the arrest is a first step in the process by which the person is to be made answerable for the offence, the commission of which the officer suspects. The same underlying purpose is to be found in s 99(3) which limits the circumstances in which an officer may arrest a person "for the purpose of taking proceedings for an offence against the person"; it thus assumes that such a purpose must underlie a valid arrest. [27] In other words, an arrest will not be valid merely because the officer believes that an offence has been committed, in circumstances where the officer has no intention of charging the person or having the person charged with that offence. If that were not so, the legal requirement that the person arrested be informed of the true grounds of the arrest would be rendered nugatory: see New South Wales v Delly [2007] NSWCA 303 ; 70 NSWLR 125 at [9]–[11] (Ipp JA), adopting the reasoning of Lord Simonds in Christie v Leachinsky [1947] AC 573 at 591–592. As Tobias JA stated at [71], after referring to the provision in force in 1998 empowering an officer to arrest without warrant on the basis of a suspicion with reasonable cause: It logically follows that where an arrest which complied with that requirement was effected, the arresting officer was obliged by the common law to inform the arrestee of the nature of the offence which he, the arresting officer, suspects the arrestee to have committed. To arrest a person on the suspicion of that person having committed offence A but to inform that person that the reason for the arrest is offence B, would be a nonsense and contrary to the clear policy which underpins what has been described by Lord Simonds in Christie as a fundamental rule of the common law with respect to the lawful deprivation of a person of his or her liberty." (emphasis added) 1. Accordingly, an arrest of a person by a police officer will not be a valid arrest merely because the officer believes that an offence has been committed by the person or the person is in the course of committing an offence, in circumstances where the officer has no intention of charging the person arrested or having the person charged with that offence. A person cannot be arrested merely to prevent the continuation of the offence if the police do not intend to charge the arrested person with the offence. 2. Section 4 of the Liquor Act 2007 (NSW) defines "intoxicated" by referring to Section 5 of that Act. Section 5 of the Liquor Act 2007 provides as follows: "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. Section 77 of the Liquor Act 2007 provides as follows: "77 Non-voluntary exclusion of persons from licensed premises (1) In this section: authorised person means a licensee, an employee or agent of a licensee or a police officer. employee includes, in the case of a registered club, a person engaged under a contract for services. vicinity of licensed premises means any place less than 50 metres from any point on the boundary of the premises. (2) An authorised person may refuse to admit to, or may turn out of, licensed premises any person: (a) who is at the time intoxicated, violent, quarrelsome or disorderly, or (b) whose presence on the licensed premises renders the licensee liable to a penalty under this Act, or (c) who smokes, within the meaning of the Smoke-free Environment Act 2000, while on any part of the licensed premises that is a smoke-free area within the meaning of that Act, or (d) who uses, or has in his or her possession, while on the premises any substance that the authorised person suspects of being a prohibited plant or a prohibited drug, or (e) whom the authorised person, under the conditions of the licence or according to a term (of the kind referred to in section 134 or 136D) of a liquor accord, is authorised or required to refuse access to the licensed premises. (3) If, under subsection (2), a person has been refused admission to, or has been turned out of, licensed premises, an authorised person may, at any time, refuse to admit that person to the licensed premises or may turn the person out of the licensed premises. (4) If a person in respect of whom an authorised person is, under subsection (2) or (3), entitled to refuse admission to the licensed premises is on the premises, the person must, on being required so to do by an authorised person, leave the premises. Maximum penalty: 50 penalty units. (5) For the purposes of this section, such reasonable degree of force as may be necessary may be used to turn a person out of licensed premises. (6) A person who has been refused admission to, or turned out of, licensed premises in accordance with this section because the person was intoxicated, violent, quarrelsome or disorderly, must not re-enter or attempt to re-enter the premises within 24 hours of being refused admission or being turned out. Maximum penalty: 50 penalty units. (7) After the 24-hour period ends in relation to any such person, an authorised person is not prevented from exercising the powers under subsection (3) in relation to the person. (8) A person who has been refused admission to, or turned out of, licensed premises in accordance with this section because the person was intoxicated, violent, quarrelsome or disorderly, must not, without reasonable excuse: (a) remain in the vicinity of the premises, or (b) re-enter the vicinity of the premises within 6 hours of being refused admission or being turned out. Maximum penalty: 50 penalty units. (9) Without limiting subsection (8), a person has a reasonable excuse for remaining in, or re-entering, the vicinity of the licensed premises if: (a) the person reasonably fears for his or her safety if he or she does not remain in, or re-enter, the vicinity of the premises, or (b) the person needs to remain in, or re-enter, the vicinity of the premises in order to obtain transport, or (c) the person resides in the vicinity of the premises. (10) In the prosecution for an offence under subsection (8), the burden of proving that a person had a reasonable excuse for remaining in, or re-entering, the vicinity of the licensed premises concerned is on the person charged. (11) The functions that may be exercised under this section by an authorised person who is a licensee or employee or agent of a licensee may only be exercised in relation to the licensed premises to which the licensee's licence relates. (12) A reference in this section to turning a person out of licensed premises includes a reference to causing the person to be turned out. (13) Nothing in this or any other section of this Act operates to limit any other right a person has to refuse to admit a person to, or to turn a person out of, licensed premises." 1. The plaintiff noted that the penalty for a breach of Section 77(8)(a) of the Liquor Act was a fine only and not a term of imprisonment. This was said to be relevant to the need to arrest the plaintiff and the question of aggravated damages. 2. In paragraphs [187]-[188] of his submissions in chief, the plaintiff submits that Constable Blades did not have reasonable grounds to suspect that the plaintiff had committed the offence specified in Section 77(8)(a) of the Liquor Act, namely remaining in the vicinity of licensed premises when previously being turned out of the licensed premises under Section 77(2) of the Liquor Act, and relies on the statement of principles of McColl JA (with whom Hoeben JA agreed) in Hyder v Commonwealth of Australia [2012] NSWCA 336 at [15] where her Honour stated as follows: "[15] The following propositions, adapted by reference to s 3W, can be extracted from decisions considering how a person required to have reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind: (1) When a statute prescribes that there must be "reasonable grounds" for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (at 112); (2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified in s 3W (the "arresting officer"); the arresting officer may not "discharge the … duty [of forming the relevant opinion] parrot-like, upon the bald assertion of the informant": George v Rockett (at 112), quoting R v Tillett; Ex parte Newton (1969) 14 FLR 101 (at 106) per Fox J; (3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that "[t]he arresting officer is held accountable … [and] is the compromise between the values of individual liberty and public order": O'Hara v Chief Constable of Royal Ulster Constabulary (at 291) per Lord Steyn (Lords Goff, Mustill and Hoffmann agreeing); (4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540 ; (2001) 126 A Crim R 562 (at [53](b)) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn; (5) "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof": George v Rockett (at 116); (6) "Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture": George v Rockett (at 116); (7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor [2005] HCA 48 ; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O'Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope; (8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O'Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O'Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is "[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?": Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 (at 303) per Kitto J; (9) "The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist": New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing); see also International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291 ; (2008) 189 A Crim R 559 (at [134]-[135]), per McClellan CJ at CL Although McClellan CJ at CL was in dissent, Allsop P (with whom Beazley JA agreed) (at [51]) would have agreed with McClellan CJ at CL's conclusion in this respect subject to qualifications none of which are in issue in the present case. International Finance Trust Co Ltd v New South Wales Crime Commission was overturned in the High Court insofar as it concerned the constitutional validity of s 10 of the Criminal Assets Recovery Act 1990, but not in a manner which affects the statements concerning the reasonable grounds issue: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49 ; (2009) 240 CLR 319; (10) In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words "may arrest without warrant" conferred on a public official "an executive discretion" whether or not to arrest and that the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. That aspect of Lord Diplock's reasoning was applied in Zaravinos v New South Wales (at [28]) where Bryson JA (Santow JA and Adams J agreeing) held that that the validity of an exercise of the statutory power to arrest, in that case under s 352(2) of the Crimes Act 1900 (which provided that "[a]ny constable or other person may without warrant apprehend"), was "not established conclusively by showing that the circumstances in s 352(2)(a) exist[ed], and that the validity of the decision to arrest and the lawfulness of the arrest also depend on the effective exercise of the discretion alluded to by the word 'may'"; see also Bales v Parmeter (1935) 35 SR (NSW) 182 (at 188) per Jordan CJ. Holgate-Mohammed v Duke has not been followed in Australia to the extent that Lord Diplock held that an arrest for the purpose of asking questions was lawful: see Zaravinos v New South Wales (at [31]-[33]); Williams v R (at 299) per Mason and Brennan JJ." Standard and onus of proof 1. Having regard to the seriousness of the allegations which the plaintiff makes against the police officers involved, the requirements in Section 140 of the Evidence Act 1995 (NSW) and the Briginshaw standard apply in relation to the plaintiff's proof of such contested allegations. This would apply in particular to the allegations that police officers are lying in their evidence, that the plaintiff was pushed into the police van with intent to cause injury and the proof of the disputed elements of the tort of malicious prosecution. 2. The use of force in the plaintiff's arrest and the continuation of custody by the police officers is clear. The defendant bears the onus of establishing to the Briginshaw standard that: 1. The plaintiff engaged in conduct which justified his arrest, the use of force in his arrest, the placement in the police van and his imprisonment at the station; 2. The force actually used by the police officers was reasonable in the circumstances: Section 140 of the Evidence Act 1995; State of New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353 at [61]-[63] per Hodgson J (with whom Beazley JA and Hislop J agreed). 1. In paragraph 45 of Varty v Director of Public Prosecutions (NSW) [2015] NSWSC 304, Adamson J stated as follows: "[45] Having read the Magistrate's reasons as a whole, I do not consider that her Honour's use of the words "benefit of the doubt" indicate that her Honour was applying the criminal standard of "beyond reasonable doubt". Although the civil standard applies (s 142) of the Evidence Act, so too does the doctrine of Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361–362, which is not excluded by the Evidence Act: Habib v Nationwide News Pty Ltd [2010] NSWCA 34; 76 NSWLR 299 at [338] per Hodgson, Tobias and McColl JJA (which dealt with s 140, which is, on this point, relevantly indistinguishable). The so-called Briginshaw doctrine has the effect that, although the standard of proof is not altered where the matter to be proved involves fraud, criminal conduct, or, as in the instant case, unlawful conduct, the strength of the evidence necessary to satisfy the tribunal of fact on the balance of probabilities may be greater because of the seriousness of the allegation." Assault 1. The plaintiff pleads the tort of assault. 2. The tort of assault occurs where there is an act of the defendant which directly and either intentionally or negligently causes the plaintiff immediately to apprehend a non-consensual contact with his or her person. The defendant's act must put the plaintiff in apprehension of an imminent battery: see R v Gabriel [2004] ACTSC 30 at [92]-[119]; R v Phillips (1971) 45 ALJR 467 at 472 per Barwick CJ. 3. In the present case there do not appear to be any facts establishing the tort of assault, as opposed to the tort of battery. This tort was not pressed in the plaintiff's written or oral submissions. 4. In my opinion the allegation of the tort of assault should be dismissed. False imprisonment 1. In relation to the tort of false imprisonment, Basten JA (with whom Bathurst CJ and Hoeben JA agreed) stated in State of New South Wales v TD [2013] NSWCA 32 at [50]-[51] as follows: [50] In identifying the elements of the tort, the State referred to a statement from C Sappideen and P Vines, Fleming's The Law of Torts (10th ed, 2011) at [2.80]: The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is. [51] In Darcy v State of New South Wales [2011] NSWCA 413, after setting out that passage from Fleming, Whealy JA (with whom Allsop P and Beazley JA agreed) noted that the elements of the tort of false imprisonment "require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment" and that "[u]pon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification": at [143]. (In contradistinction to the facts in Darcy, there was no question of the respondent consenting to being detained in a prison, even if that were, in principle, possible.) 1. In Ruddock v Taylor (2005) 222 CLR 612 Kirby J stated as follows at paragraph 140: "[140] Throughout the common law world, the conclusion consistently reached by courts addressing this question is that, in the absence of statutory provisions that clearly afford an immunity or defence to the administrator, the result must favour the individual whose rights have been violated. Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions. [141] The heavy burden placed on the defendant, at least in contrast to some other torts, is explicable in two senses. First, the onus on the defendant to establish a lawful justification is mitigated to some extent by the fact that a plaintiff must prove that the defendant was a direct cause of the injury, as well as prove the existence of the requisite intent. Secondly, as discussed above, the principal function of the tort is to provide a remedy for "injury to liberty". It is not, as such, to signify fault on the part of the defendant. Damages are awarded to vindicate personal liberty, rather than as compensation for loss per se." 1. In Elleray v Rail Corporation NSW [2017] NSWCA 23 the Court of Appeal noted at [4] that the torts of battery and false imprisonment are actionable per se and a plaintiff does not have to prove damage. 2. In his submissions the plaintiff states, consistent with the above authorities, that once a party proves actual imprisonment, the onus is on the defendant to prove that the plaintiff's imprisonment was lawfully justified. In Zaravinos v State of New South Wales (2004) 62 NSWLR 58 Bryson JA (with whom Santow JA and Adams J agreed) stated as follows at [12]: "[12] … the pleadings distinctly and unmistakably show that one claim or count was based on false arrest and imprisonment. However the burden of proving any facts or circumstances which show that the arrests and detention were lawful lay on the defendants …" 1. The question arises whether there was a reasonable basis for the police officers, particularly Constable Blades, to believe in the present case that the plaintiff had been properly and lawfully asked to leave the Albion Hotel, had been lawfully refused re-entry, had properly been directed to leave the vicinity of the premises and was unlawfully remaining in the vicinity of the hotel. If so, was the arrest of the plaintiff and the subsequent imprisonment of him lawfully justified? 2. In paragraphs [182]-[196] of the plaintiff's written submissions in chief, the plaintiff submits as follows: 1. It is not in issue in this case that the plaintiff was imprisoned. The onus rests on the defendant to prove that the plaintiff's imprisonment was lawfully justified; 2. The plaintiff's imprisonment was not lawfully justified under Section 99(3)(b) of LEPRA. Section 99(3) does not confer a power of arrest upon a police officer but operates as a constraint on the powers of arrest conferred by Section 99(1) and (2): State of New South Wales v Robinson [2016] NSWCA 334 at [34]. The arrest of the plaintiff by Constable Blades was not for the purpose of taking proceedings against the plaintiff for a second offence. The evidence of Constable Blades given at T 582.34-.43 is relied upon to establish that at the time of the arrest it was not the intention of Constable Blades to take the plaintiff back to the police station and formally charge him with the offence of failing to remain in the vicinity of the licensed premises; 3. In any event, Senior Constable Blades did not have reasonable grounds to suspect the plaintiff had committed the offence set out in Section 77(8)(a) of the Liquor Act. The reasons for this are set out in paragraph [189] of the plaintiff's written submissions in chief including that prior to arresting the plaintiff Constable Blades was not aware of the boundaries of the licensed premises, had not spoken to the authorised person who allegedly had turned out the plaintiff under Section 77(2) of the Liquor Act and at the time of the plaintiff's arrest he was in the process of moving away from the licensed premises; and 4. Senior Constable Blades did not have reasonable grounds to suspect that it was necessary to arrest the plaintiff to prevent a repetition or continuation of the offence or commission of another offence. 1. In my view, Exhibit 1 (the film) establishes that at the time of the plaintiff's arrest he was not in the process of moving away from the licensed premises but had advanced towards the police officers in the general direction of the driveway. The evidence before me establishes that where the plaintiff was arrested was less than 50 metres from the entrance to the Albion Hotel: see the evidence of Constable Blades at T 604.38 and Constable Gedeon at T 623.32. 2. Further: 1. It seems that Constable Blades did arrest the plaintiff because of his failure to comply with a further direction to leave the vicinity of the licensed premises: see T 489.25; T 510.28; T 512.40; Exhibit 17; Exhibit 20, paragraph 21 and Exhibit 12, page 3 where it provides: "He was taken to the Parramatta Police Station to stop the continuation of the offence. He was placed into Dock 2. Once in custody a decision was made to issue a further infringement notice to the PIO for remain in the vicinity of Licensed Premises." 1. It is also established from all of the evidence that Constable Blades did form the view that it was necessary to arrest the plaintiff to achieve the purpose of preventing a repetition or continuation of the offence or the commission of another offence under Section 77(8)(a) of the Liquor Act, having regard to the fact that he (the plaintiff) appeared from Exhibit 1 to be moving back towards the driveway entrance to the hotel. 1. In an attempt to counter the principles stated in Dowse v State of New South Wales, above, at [26]-[27] and in State of New South Wales v Robinson, above at [31]-[35] in relation to Section 99(3) of LEPRA, counsel for the defendant submitted: 1. The evidence referred to in the previous paragraph above established that the intention of Constable Blades at the time was to arrest the plaintiff for the purpose of taking further proceedings for an offence against him for failing to quit in addition to the infringement notice already served on him; 2. This was the proper inference to be drawn from the extract above from Exhibit 12, page 3; 3. In any case, it was inappropriate for the plaintiff to rely on the answer given by Constable Blades at T 582.43. It was submitted that the evidence set out in that transcript, read in its context, did not fairly put the issue to Constable Blades, in breach of the rule in Browne v Dunn (1893) 6 R 67. As I understood the argument, it was to the effect that unless notice has previously clearly been given to a witness of the cross-examiner's intentions to rely upon matters by putting them to the witness, the cross-examiner cannot rely upon those matters in support of his case. This is especially where that case otherwise relies upon inferences to be drawn from other evidence in the proceedings: see the analysis in [42] of Bale v Mills [2011] NSWCA 226. 1. In my view, this submission should be rejected for the following reasons: 1. I do not consider page 3 of Exhibit 12 which is quoted above provides clear evidence that Mr Raad was arrested by Constable Blades for the purpose of taking proceedings against him for the offence of remain in vicinity of licensed premises which allegedly occurred after Mr Raad had walked down to the bottom of the driveway and after he had been issued with the infringement notice. Exhibit 12 refers to a decision which was made once Mr Raad had been taken to Parramatta Police Station; 2. The cross-examination at T 580-582 was clearly in the context of what occurred after the infringement notice had been issued to Mr Raad and after he and Mrs Raad had proceeded to the footpath in Harris Street. In my view, the answer at T 582.43 is clear. Constable Blades did not arrest Mr Raad with the intention of taking him back to Parramatta Police Station and formally charging him with a second offence of remain in the vicinity of the licensed premises; 3. Further, such an offence only gave rise to a fine and not a potential term of imprisonment. There was no evidence that it was necessary to arrest Mr Raad for the purposes of bringing a charge on a second offence; 4. I do not see there being any breach of the rule in Browne v Dunn by the questioning of Constable Blades at T 582. The proposition was squarely put to him and he answered it directly. 1. For these reasons I find that the arrest of Mr Raad was not lawfully justified under Section 99(3) of LEPRA, which is the basis relied on in the Defence. The evidence is clear that Constable Blades had no intention of charging Mr Raad or having Mr Raad charged with the second offence at the time of his arrest. The facts appear to me to fall squarely within the principles stated in Dowse at [26]-[27] and Robinson at [35]. Accordingly, the tort of false imprisonment is established in relation to this aspect. 2. However, I will proceed to consider the question whether there were reasonable grounds for Constable Blades to believe that it was necessary to arrest the plaintiff to achieve the purpose of preventing a repetition or continuation of the offence. 3. In my view, having reviewed all the evidence, there were reasonable grounds for the police officers (particularly Constable Blades) to believe this for the following reasons: 1. The plaintiff had been asked to leave the Albion Hotel because the security guard thought that he was intoxicated; 2. Police officers attended the front of the hotel. It is highly likely and I find that the police officers were told (as Constable Blades claims) that the plaintiff had been refused re-entry to the hotel as he was intoxicated and was refusing to leave the front of the hotel and was arguing. Constable Blades gave evidence which I accept that he was told that the plaintiff had been asked to leave the hotel by a security guard. Constable Gedeon gave similar evidence; 3. The evidence of Senior Constable Frith, Constable Restuccia and Constable Blades as well as Exhibit 1, the film, show that the plaintiff was loudly remonstrating with police and waving his arms around for some considerable time before he was given the penalty notice. Mrs Raad confirms that the plaintiff was talking loudly and waving his arms around. The plaintiff confirms that he was very upset at the time; 4. The time when the events were occurring and the fact the plaintiff had left licensed premises early in the morning; 5. I have found that Senior Constable Frith and Constable Blades directed the plaintiff to leave the vicinity but because of his highly agitated and upset state he probably did not hear this direction or if he did hear it he did not pay it appropriate attention; 6. I have found that the plaintiff walked to the end of the driveway and then commenced to cross the road twice before returning to the footpath outside Harris Street and walking away from the driveway before returning and advancing to the police officers with his arm extended. In those circumstances, I find on the evidence that the police officers had a reasonable basis for believing that the plaintiff had been excluded from the hotel, was in an argumentative, quarrelsome and probably intoxicated state and was refusing to leave the vicinity of the hotel (thereby committing a further offence). 1. In its submissions, the defendant also relies on the allegation that the plaintiff was lawfully arrested because he was intoxicated and committing a breach of the peace: defendant's submissions paragraphs 186, 196-204. The plaintiff says these submissions cannot be relied upon as these matters are not pleaded and no application has been made to amend: plaintiff's submissions in reply paragraphs 27-39. 2. In my view, the case was conducted on the existing Defence and the defendant should not be permitted to rely on the additional matters in the absence of a formal application to amend. I understand that the defendant's counsel did not dispute this when making his oral submissions. 3. In any case, the matters relied upon do not appear to have been established by the evidence. In particular, Mr Raad was not an 'intoxicated person" within Section 206 of LEPRA. In Section 205 the term "intoxicated person" is relevantly defined as "a person who appears to be seriously affected by alcohol or another drug or a combination of drugs". Mr Raad did not appear on the evidence to be "seriously affected by alcohol". Counsel for the defendant accepted this during oral submissions. Battery 1. As stated above, the court in Croucher v Cachia [2016] NSWCA 132 defines battery as being: a defendant who directly causes physical contact with the plaintiff will commit a battery unless the defendant proves that the defendant was utterly without fault. Here the battery was the physical arrest of the plaintiff and then the forced placement of the plaintiff in the police van. 2. I have found that the arrest of Mr Raad was not lawfully justified. Accordingly, when force was used by the police officers to arrest him, place him in handcuffs, place him in the police van and take him to Parramatta Police Station and place him in a cell, the physical contact with the plaintiff constituting a battery was equally not lawfully justified. Consequently, the police officers were in my opinion not "utterly without fault" in relation to the arrest and subsequent handcuffing. 3. In the course of oral submissions counsel for the plaintiff conceded that no separate award for damages for battery was appropriate and that the conduct of the police officers in arresting, handcuffing the plaintiff, placing him in the van and taking him to the police station was properly to be considered in the assessment of damages for the tort of false imprisonment which has been established. 4. In relation to the placement of the plaintiff into the police van, I have found that the police officers used excessive force in placing the plaintiff in the van and thus there was negligence within Croucher v Cachia being a presence of fault on behalf of the defendant through the police officers. 5. Because of Croucher v Cachia the damages to be awarded to the plaintiff for the negligent battery, are to be calculated under the CLA. 6. In coming to the view that excessive force was used against the plaintiff in placing him in the police vehicle I take into account that police officers are faced with having to take action in circumstances of urgency or stress. In particular I take into account the comments of Heydon JA in Woodley v Boyd [2001] NSWCA 35 at [37] as follows: [37] According to some writers, at common law, which applies in New South Wales, a person effecting an arrest may use whatever force is "reasonable" in the circumstances (Archbold: Criminal Pleading Evidence and Practice 2000 para19-39) or "reasonably necessary" (Wiltshire v Barrett [1966] 1 QB 312 at 326 and 331). "Thus if the arrestee offered resistance, the arrestor could increase his force in proportion to the force of that resistance": R W Harding, The Law of Arrest in Australia (eds Duncan Chappell and Paul Wilson) The Australian Criminal Justice System (2nd ed, Butterworths, 1977) page 254. A more elaborate test has been propounded in the context of whether the killing of a felon in the course of committing a felony is a justifiable homicide, or manslaughter, or murder. It was put thus by the Full Court in R v Turner [1962] VR 30 at 36: "When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (ie the commission of a felony or the escape of the felon)." It may perhaps be questioned whether the tests stated apply where the arresting party causes injury to the arrested party, as distinct from death. However, for present purposes it is convenient to assume, as counsel for both the plaintiff and the defendants did, that R v Turner states the law in that context as well. In evaluating what is reasonable, necessary or reasonably necessary the duties of police officers must be remembered. In Lindley v Rutter [1981] QB 128 at 134 Donaldson LJ said: "It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case." The same duties and considerations apply where a police officer is deciding how to effect an arrest. And, in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J said: "[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances."" 1. I also note that in State of New South Wales v McMaster [2015] NSWCA 228, Beazley P (with whom McColl and Meagher JJA agreed) stated as follows at [38]: "[38] Thirdly, the legislature, by the enactment of s 230, has spoken as to the circumstances in which a police officer's actions in exercising a function under LEPRA, or under any other Act or law, are lawful." 1. Whether any damages should be awarded for the negligent battery and the quantum of those damages will be considered further below. Claim for malicious prosecution 1. In A v New South Wales (2007) 230 CLR 500, the High Court stated as follows: "[1] This appeal raises issues concerning two of the four elements of the tort of malicious prosecution. 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." 1. In State of New South Wales v Abed [2014] NSWCA 419 Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) stated as follows: "[135] 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: A v New South Wales at [91]. [136] Examples of an improper purpose include spite or ill will, to punish the defendant, and to stop a civil action brought by the accused against the prosecutor. However as the joint judgment in A v New South Wales emphasised at [92], it is not possible to identify exhaustively when the processes of the criminal law may be improperly invoked. What the plaintiff has to prove, in order to establish malice in an action for malicious prosecution, is a purpose other than a proper purpose: A v New South Wales at [92]. … [150] Absence of reasonable and probable cause in maintaining a prosecution may, in a given case, be evidence of malice, but as the High Court emphasised in A v New South Wales at [40] there are two separate issues to be decided. The High Court also warned (at [90]) against attempts to reduce the relationship between absence of reasonable and probable cause and malice to an aphorism such as — absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause. The joint judgment continued (at [90]) by recognising that "proof of particular facts may supply evidence of both elements", but noted that "no universal rule relating proof of the separate elements can or should be stated". [151] In Trobridge v Hardy [1955] HCA 68; 94 CLR 147 Kitto J at 163 referred to the "indirect route" of proving malice. His Honour continued (at 164), in the context of a jury trial: "If they think it more probable than not that the prosecutor lacked the belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malicious, even though they may not feel able to say precisely what the malicious motive was." [152] However, whilst proof of malice will often be a matter of inference, it bears repeating that "it is proof that is required, not conjecture or suspicion": A v New South Wales at [93]." 1. I also take into account the matters set out in paragraphs [200]-[216] of the plaintiff's submissions in chief. 2. As stated above, I find that the criminal charge of "excluded person remain in vicinity of" licensed premises was heard in the Parramatta Local Court in late 2012 and on 23 January 2013 the Magistrate dismissed the charge. Accordingly, the first two elements in A v New South Wales, above, are satisfied as there were criminal proceedings which were terminated in favour of the plaintiff. 3. However, having regard to my findings set out above, I find that Constable Blades as the informant, did not initiate or maintain the proceedings acting maliciously and that he acted at all times with reasonable and probable cause. The fact a statement was not obtained from a security guard for the prosecution is not decisive. Constable Blades gave evidence, which I accept on this issue, that he had been told by security officers the plaintiff had been excluded from the hotel because of intoxication. Constable Blades had formed the view independently that the plaintiff was "moderately intoxicated" through his appearance and manner. In addition, the film footage (Exhibit 1) shows that security officers were refusing entry to the plaintiff and they were clearly "authorised persons" within Section 77 of the Liquor Act. The plaintiff did not dispute he had been asked to leave by a security officer, albeit he says wrongly. 4. In my view in the light of all the evidence Constable Blades brought the prosecution with reasonable and probable cause. The decision to prosecute to court was taken after a review of the film footage by him (Exhibit 1) and was not undertaken with malice. I conclude that the plaintiff has not established malice to the Briginshaw standard. 5. Therefore, in my opinion, the tort of malicious prosecution is not established. Conclusion 1. Accordingly, in my view the claim of the plaintiff against the defendant for assault should be dismissed. The claim for false imprisonment is established. The claim for negligent battery in relation to the placement of the plaintiff into the back of the police vehicle requires further consideration. Assessment of damages 1. I will now turn to consider an assessment of damages in relation to the negligent battery and the false imprisonment which have been established. I will also consider an assessment if I am wrong in my conclusions above in relation to the tort of malicious prosecution. The plaintiff claims general, aggravated and exemplary damages. Aggravated and exemplary damages are not available in relation to the negligent battery because of Section 21 of the CLA. 2. A party is obliged to give particulars of the facts and circumstances relied upon to establish a claim for exemplary or aggravated damages: Uniform Civil Procedure Rules 2005 (NSW), Part 15.7 and Part 15.8. 3. The particulars of aggravated and exemplary damages for the tort of malicious prosecution are set out in paragraph 27 of the Statement of Claim as follows: "27. The plaintiff also claims aggravated and exemplary damages for malicious prosecution. In so claiming, the plaintiff relies on the matters pleaded above and the following additional matters: Particulars of aggravated damages i) The plaintiff was distressed, humiliated and embarrassed at having to attend the Local Court to defend the said charge; and ii) Further particulars may be provided in due course. Particulars of exemplary damages i) The plaintiff repeats paragraphs 24(i) to (viii) herein. ii) Officer Blades failed to properly investigate the plaintiff's complaint that he had been assaulted by Ali; iii) Officer Blades locked the plaintiff and his wife out of the Parramatta Police Station upon the plaintiff being released from police custody, in order to prevent the plaintiff from complaining about how he had been treated by Officer Blades and other police officers; iv) Further particulars may be provided in due course." 1. The particulars of aggravated and exemplary damages for false imprisonment, assault and battery are set out in paragraph 30 of the Statement of Claim and are as follows: "30. The plaintiff also claims aggravated and exemplary damages for the false imprisonment and assault and battery. In so claiming, the plaintiff relies on the matters pleaded herein and the following additional matters: Particulars of aggravated damages i) The treatment of the plaintiff at the hands of the said officers was in full view of members of the public causing the plaintiff to be embarrassed and humiliated; ii) The arrest of the plaintiff was wholly unwarranted; and iii) Further particulars may be provided in due course. Particulars of exemplary damages i) In arresting the plaintiff, Constable Blades and the other officers acted in contumelious disregard of the plaintiffs rights; ii) In arresting the plaintiff, Constable Blades and the other officers knew that they were not acting in the execution of their duty as police officers; iii) Further particulars may be provided in due course." 1. In State of New South Wales v Abed [2014] NSWCA 419, Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) stated the following at paragraphs [230]-[234]: [230] The principles upon which aggravated and exemplary damages are awarded are well established and were not in issue on the appeal. The principles were summarised by Sackville AJA (Macfarlan and Whealy JJA agreeing) in New South Wales v Zreika [2012] NSWCA 37 at [60]–[64]. It is necessary to keep in mind the conceptual distinction between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages. The assessment of aggravated damages is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant. [231] Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno [1987] HCA 47 ; 164 CLR 1 at 8. Aggravated damages are given to compensate the plaintiff when the harm done to him or her by a wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax [1966] HCA 40 ; 117 CLR 118 at [ ] (Windeyer J). [232] 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 at 8. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accidents Commission [1998] HC 70 ; 196 CLR 1 at [14] (Gray v MAC). [233] In New South v Riley [2003] NSWCA 208 ; 57 NSWLR 496 Hodgson JA (Sheller JA and Nicholas J agreeing) expressed the view (at [138]) that the description in Gray v MAC does not fully cover the field. His Honour said that "Conduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing". However, Hodgson JA also observed that, ordinarily, conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the Court's disapproval or, in cases where the defendant stood to gain more than the plaintiff lost, demonstrate that the wrongful conduct should not be to the advantage of the wrongdoer. [234] In New South Wales v Radford [2010] NSWCA 276 ; 79 NSWLR 327, Sackville AJA (Beazley and Macfarlan JJA agreeing) summarised the effect of the authorities as follows: [97] These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages or injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award." General and aggravated damages Negligent Battery 1. In relation to the assessment of damages for the negligent battery, the plaintiff submits that he has a severity of non-economic loss (as a proportion of a most extreme case) under Section 16 of the CLA of 25%: [226] of his written submissions in chief; cf [278] of the defendant's written submissions. 2. In my view, the plaintiff's current condition, as stated above, is not established to be connected to the negligent battery and there can be no award of damages for non-economic loss under the CLA. 3. No evidence was placed before the court in relation to out of pocket expenses for the past and therefore no award can be made under this head although there is some evidence that the plaintiff consulted his general practitioner at least in 2014 in relation to his knees and a specialist in 2015. 4. As set out above I have preferred the evidence of Dr Drummond over that of Dr Lee. Accordingly, there can be no award of damages for future economic loss including on a buffer basis as sought by the plaintiff. The evidence from the plaintiff did not link any problems with the plaintiff's knees caused by the negligent battery to the closure of his business in 2013 or the loss of past earnings or profits and therefore no damages can be awarded under this heading. Also there was no evidence as to the plaintiff's prior earnings as assistance to determine any loss of earning capacity. 5. In relation to a claim for future out of pocket expenses, the evidence of Dr Drummond should be preferred to that of Dr Lee for the reasons set out above. Accordingly, no amount should be allowed under this heading as contemplated future treatment does not relate to the incident on 10 June 2012 but to the plaintiff's degenerative pathology: see the answers of Dr Drummond to the questions numbered 8 and 9 on pages 8 and 9 of Exhibit 6. I also reject any claim for an amount to be awarded for gratuitous care or commercial employment of domestic care or gardening for the same reasons. There is simply not sufficient evidence from the plaintiff or his wife to establish these heads of damages. Much more detailed evidence from the plaintiff and/or his wife would have been required to establish these heads of damage. Further, more detailed evidence would have been required from the plaintiff linking his complaints in relation to his knees with earlier consultations with medical practitioners. 6. Accordingly, I award no damages to the plaintiff in relation to the negligently inflicted battery. 7. False Imprisonment 8. It is necessary that I now consider an assessment of damages for the false imprisonment found. 9. The evidence is clear and undisputed that the plaintiff was arrested, handcuffed and placed in the back of the police vehicle and kept for a period of less than two hours at Parramatta Police Station. The issue of the alleged damage to the plaintiff's knees has already been considered above in relation to the negligent infliction of injury through a battery. 10. In relation to the question of general damages for the false imprisonment, I take into account the following matters: 1. The plaintiff was arrested unlawfully; 2. The plaintiff was arrested with the assistance of a number of police officers, not merely one or two police officers; 3. I have found above that the plaintiff did not resist arrest in any way; 4. The plaintiff was placed in the back of a police van; 5. The plaintiff was kept in custody for a period of slightly less than two hours; 6. I do not consider it relevant that the plaintiff's arrest was unlawful because of a "technicality". The freedom of a member of the public is important and arrests must take place for valid and lawful reasons. 1. Taking into account all of these matters and the entirety of the evidence, I award the sum of $15,000 in general damages to the plaintiff for the false imprisonment. 2. In arriving at this figure the following appear to be also relevant: 1. On the evidence before me the plaintiff was continuing the offence under Section 77(8)(a) of the Liquor Act at the time of his arrest; 2. The arrest was undertaken to prevent the continuation of that offence, albeit unlawfully for the reasons given above; 3. There is no evidence that the plaintiff was struck in any way by any officer; 4. The plaintiff had been remaining in the vicinity of the licensed premises for some time and the police had appeared to be acting reasonably in allowing him time to get on his way. 1. In relation to the award of aggravated damages which are sought by the plaintiff, I take into account the following matters: 1. The plaintiff did not resist arrest; 2. The plaintiff was arrested in a public place albeit in the early hours of the morning; 3. The plaintiff was pushed by Constable Blades into the van; 4. The plaintiff was handcuffed to his rear in public; 5. The plaintiff was arrested in the presence of his wife. 1. Counsel for the defendant emphasised in his oral submissions that there was no evidence that a police car was available as opposed to a police van, in the circumstances the use of handcuffs in an arrest if lawful would have been appropriate and there was no evidence that the plaintiff was humiliated or ridiculed or insulted in any way. There were, it is submitted, no factors of aggravation. Reliance was placed on the comments of Lord Diplock in Cassell & Co Ltd v Broome (1972) AC 1027 at 1124. 2. In my view, an award of aggravated damages is warranted in the present case but that it should be modest. I have set out the aggravating factors above. I particularly take into account that the arrest was made in public, in front of the plaintiff's wife, for an offence which did not involve a potential term of imprisonment and with the plaintiff being pushed into a police van. I allow $5,000 for aggravated damages. 3. I now turn to consider damages for the tort of malicious prosecution if I am found on appeal to be in error in concluding that this tort has not been established. 4. In relation to the tort of malicious prosecution, any award of damages to the plaintiff would need to be assessed to take account the following if the plaintiff's version is preferred: 1. That the prosecution was continued against the plaintiff maliciously and without reasonable or probable cause; 2. The charge led to criminal proceedings against the plaintiff heard over two days; 3. The plaintiff was subjected to the upsetting and challenging experience of representing himself. 1. In my view the amount of general and aggravated damages which should be awarded for the tort of malicious prosecution is one of impression in all the circumstances of the case. In my view, an award of $25,000 on the facts of this alternative case would be appropriate. 2. In relation to the tort of false imprisonment, I do not believe that an award of exemplary damages is appropriate. The police officers involved believed reasonably that the plaintiff was committing a further offence and would remain in the vicinity of the licensed premises pleading his case if they did not act. In my view there was no high-handed, outrageous and contumelious conduct by Constable Blades or any of the police officers which warrants an award of exemplary damages. I expressly find that there was no intention to arrest the plaintiff irrespective of the facts or simply because he had irritated the police officers in question. 3. If I am wrong in relation to this conclusion I would only award $10,000 in addition for exemplary damages. 4. If the plaintiff's entire case is accepted and preferred to that of the defendant then the plaintiff was arrested without cause, Constable Blades recorded false details in his police notebook and the COPS computer system entry in relation to the plaintiff, and a charge was continued which was known to be unjustified for a dominant malicious motive. That is obviously serious conduct on behalf of police officers. It seems that the conduct was primarily that of Constable Blades. 5. If the plaintiff's case is entirely preferred then the conduct of Constable Blades clearly amounted to high-handed, outrageous and contumelious conduct by him. The evidence does not support this allegation. In the circumstances, in my view, an award of exemplary damages for malicious prosecution would be warranted and I would award the sum of $10,000. 6. In conclusion, I find that the plaintiff should be awarded $20,000 damages for the tort of false imprisonment. Interest will need to be calculated and added to this figure. Disposition 1. For the above reasons, I make the following orders in the proceedings: 1. There is to be judgment for the plaintiff; 2. Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed judgment sum including interest; 3. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed; 4. Liberty to the parties to apply to vary the costs order in (3) above; 5. The exhibits may be returned after 28 days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2017