District Court New South Wales Medium Neutral Citation: Wessell v The State of New South Wales (No 2) [2017] NSWDC 235 Hearing dates: 5, 6, 8, 9, 13, 14, 15, 16, 20 and 21 June 2017 Date of orders: 22 June 2017 Decision date: 22 June 2017 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the defendant. (2) Plaintiff to pay the defendant's costs. (3) Any further application in respect of costs to be notified to my associate within seven days. Catchwords: TORT – false arrest – breach of the peace - unlawful imprisonment – assault - battery - resist police in execution of their duty – eviction – capsicum spray – police baton Legislation Cited: Civil Liability Act 2002, s 3B Crown Proceedings Act 1988 Law Enforcement (Powers and Responsibilities) Act 2002, s 99, s 230 Law Reform (Vicarious Liability) Act 1983 Uniform Civil Procedure Rules 2005, r 29.10, 42.1 Cases Cited: Lavin v Albert [1982] AC 546 R v Howell [1982] QB 416 State of New South Wales v Kuru [2007] NSWCA 141 State of NSW v Tyszyk [2008] NSWCA 107 Category: Principal judgment Parties: Patrick Wessell (plaintiff) The State of New South Wales (defendant) Representation: Counsel: Mr R De Meyrick (plaintiff) Mr M Spartalis (defendant) Solicitors: Carroll & O'Dea Lawyers (plaintiff) Henry Davis York (defendant) File Number(s): 2015/285464 Publication restriction: None Judgment 1. INTRODUCTION 1. Patrick Wessell was forcefully arrested when evicted from his public housing premises after falling behind with his rent. Proceedings against him for resisting police in the execution of their duty were dismissed. He sues the State of New South Wales (pursuant to the Crown Proceedings Act 1988) for false arrest and unlawful imprisonment, assault and battery, and malicious prosecution. An application for judgment under r 29.10 of the Uniform Civil Procedure Rules 2005 in respect of damages for malicious prosecution was granted on 15 June 2017 (see Wessell v The State of New South Wales [2017] NSWDC 233), leaving claims for assault and battery and for unlawful imprisonment. The State accepts it is vicariously liable for the conduct of the police officers (in accordance with the Law Reform (Vicarious Liability) Act 1983 as amended). 2. BACKGROUND 1. In 2013 Mr Wessell resided with his then 16-year-old son, Michael, in a house owned by the New South Wales Land and Housing Corporation ("the Corporation") in Toongabbie. Mr Wessell's tenancy agreement with the Corporation obliged him to pay about $130 per week rental. He was receiving workers compensation from an earlier work-related motor vehicle accident in August 2011. The damages claim in respect of that accident was still pending and did not resolve until about January 2014. 2. During 2013, Mr Wessell defaulted on his rental obligations. In February and again in July 2013, the Consumer, Trader and Tenancy Tribunal "terminated" his tenancy agreement. Mr Wessell was ordered to give possession by 1 August 2013. On 19 July 2013 Mr Wessell told his doctor, in effect, that he was being evicted and had to leave the house by 1 August because his rent had not been paid as he could not meet his rent from his workers compensation payments. 3. Mr Wessell remained in the home. Later in August 2013 an attempt was made to obtain possession of the premises. When sheriff's officers and police officers, and perhaps others, attended the premises, Mr Wessell was not home and the landlord could not obtain possession. On 15 October 2013 the Tribunal again made an order for termination of the agreement and ordered possession to be given by 5 November 2013. At that stage, rent for the period from 29 August 2013 to 15 October 2013, some $876.67, was outstanding, and a daily occupation fee of $18.33 was ordered to be paid from that date. It appears that rent up to 29 August 2013 had been paid. 4. Mr Wessell did not vacate the premises by 6 November 2013 and remained in occupation until 21 November 2013. 5. At 11am on 21 November 2013, two sheriffs, Singh and Traynor, knocked on the door at the Toongabbie home. Michael Wessell answered the door. Upon a request by the sheriffs that they needed to speak to Patrick Wessell, Michael closed the door and woke his father who was asleep on the nearby lounge. Mr Wessell, who was about 6 foot tall, 140 kilograms and was wearing only underpants, came to the door and opened it. His son followed behind him. 6. The sheriffs told Mr Wessell that he needed to leave the premises and that he had a few minutes to collect some personal things before leaving. Other things may have been said. Mr Wessell refused to leave. He was upset and said he was not going anywhere. He closed the door. Within a minute or so, two police officers, Jay Maleckas, 5 foot 7 inches tall and 72 kilograms, and Stan Evans, a little taller and older, approached the door. Officer Maleckas spoke through the door to Mr Wessell. Mr Wessell was told to open the door or it would be broken down. Mr Wessell opened the door. Either before or after it was opened, Mr Wessell again refused to go saying "I wasn't told, I haven't been given any paperwork, this is bullshit and I'm not going anywhere," and may have said, "Fuck off. I'm not going anywhere." Other words may have been said and other action may have occurred. 7. Mr Wessell was pulled from the doorway by Officer Evans (at least) grabbing him behind the head and pulling him outside. Mr Wessell was capsicum sprayed by Officer Maleckas. Officer Maleckas demanded that Mr Wessell get on the ground. Mr Wessell continued to refuse to submit. He was capsicum sprayed and struck on the legs with a police baton at least three more times. Mr Wessell complained of an allergy to grass. 8. Eventually Mr Wessell lay down on the ground and was handcuffed. He was informed that he was under arrest for resisting police. He was assisted by some neighbours as an ambulance arrived and Mr Wessell was then taken by the police to Blacktown Police Station. He was given a Court Attendance Notice in respect of the charge of resisting police in the execution of their duty, and was released at about 1.45pm, almost two and three‑quarter hours after he was first confronted at the door. 3. ISSUES 1. Whether Mr Wessell was entitled to damages for assault and battery and the arrest depends on whether the conduct of the police was lawful. That depends on what occurred, including what was said, when Mr Wessell was in the doorway, whether Officer Maleckas believed on reasonable grounds of the need for an arrest, whether the force used was reasonable, and whether Mr Wessell resisted arrest. 2. If Mr Wessell is entitled to damages, there are questions about the nature of his injuries resulting from the incident, the level and extent of loss of his pre‑existing earning capacity, and whether an award of aggravated or exemplary damages is appropriate. 3. These are the issues to be determined. 4. WHAT OCCURRED IN THE DOORWAY (a) The evidence 1. Sheriff Traynor and Officers Maleckas and Evans, who viewed the initial contact, were largely consistent in their evidence of what occurred at the doorway. They said that Mr Wessell was told by Sheriffs Singh and Traynor that he was being evicted and he needed to leave; that he could gather some clothes, medical needs and personal items but that the eviction was proceeding. They said Mr Wessell yelled and screamed, said, "I am not fucking going anywhere", "Fuck off" and slammed the door. Officer Evans recalled Sheriff Traynor giving Mr Wessell some paperwork, but Sheriff Traynor denied that Mr Wessell was given any paperwork by the sheriffs. 2. Mr Wessell accepted that he was upset, that he was told he needed to get out of the property but that he could gather some personal things; that he refused to go; that he may have said, "Fuck off I'm not going anywhere", but he denied slamming the door. He said, "I am going to make a phone call". 3. These particular differences between Mr Wessell and the police officers and Sheriff Traynor do not appear to be significant. 4. The police were then requested to assist by the sheriffs. The police knocked on the door. Mr Wessell heard them direct him to open the door or it would be broken down and also gave evidence that the police were pushing on the door. Mr Wessell said he had pressed the number for Nathan Rees, his local Member of Parliament, on his telephone, then he opened the door and was immediately capsicum-sprayed in the face, was grabbed around the head and pulled out of the doorway to the front yard. 5. Michael Wessell recalled it differently. He said that after the door opened, the officers and Mr Wessell spoke to each other. Mr Wessell was told to get out of the house and he refused. Michael Wessell said that Officer Maleckas told Mr Wessell he was going to rip him out of the house, and Mr Wessell again refused. Michael Wessell did not remember and was not 100% sure whether Officer Maleckas said, "I'm Jay Maleckas from Blacktown, you're under arrest to prevent a breach of the peace". Then Mr Wessell was pulled from the house: "they both put their hands around his neck and grabbed him out", Michael Wessell said. After Mr Wessell was pulled from the house, he was capsicum‑sprayed. 6. Officers Maleckas and Evans and Sheriff Traynor gave evidence of this incident. Like Michael Wessell, they testified that after the door was opened, they told Mr Wessell that he needed to leave and he refused; that no capsicum spray was used in the doorway; and that Mr Wessell was pulled from the doorway. 7. The three officers also gave evidence that before Mr Wessell was pulled from the doorway, Officer Maleckas arrested Mr Wessell. Sheriff Traynor said that Officer Maleckas had said that Mr Wessell was under arrest for a breach of the peace. Officer Evans' recollection was that the words used were, "Patrick you are under arrest to prevent a breach of the peace", and Officer Maleckas said that after Mr Wessell had refused to leave, he said, "Patrick, my name is Jay Maleckas from Blacktown Police. You are under arrest to prevent a breach of the peace. I need you to walk outside to your lawn right now please". 8. Officers Evans and Maleckas gave evidence that they sought to effect the arrest by taking hold of Mr Wessell's wrist, but Mr Wessell pulled his arms away immediately before Officer Evans put his hands around the back of Mr Wessell's head and pulled Mr Wessell from the doorway. After that occurred, Mr Wessell turned and was facing the front door and was sprayed with capsicum spray. 9. Sheriff Traynor recalled some communication through the screen door, although Officer Maleckas recalled that the screen door was always open, and Officer Evans did not recall the screen door. 10. There were two security recordings of the incident: one being a copy of some footage by Mr Wessell's security camera at the front door, another by a neighbour's security camera. Although the quality of the footage was less than ideal, both recordings first show Mr Wessell being capsicum‑sprayed as he faced the house, when on the grass area, after being pulled from the doorway. 11. The primary matters of difference between Mr Wessell and the police officers thus concern whether the words of arrest were stated at the doorway, and whether Mr Wessell was pulled from the house before Officer Maleckas' first use of capsicum spray. 12. Mr Wessell's counsel referred to the evidence of a neighbour, Patricia Gluvic. She could give no direct evidence of any capsicum spray at the door or of the words spoken by Officer Maleckas. She was in her kitchen next door. She heard noises and went to her front veranda. She could not see the front door of Mr Wessell's home, but she gave evidence of hearing Mr Wessell say, in a raised voice, a loud voice, upset, saying, "I'm not coming out. I want to call Nathan Rees", and police said, "Open the door or we're going to kick it in". She subsequently gave evidence that the words Mr Wessell used were, "I'm not opening the door, I'm calling Nathan Rees" and that a matter of seconds later, Mr Wessell ran to the front lawn. In cross‑examination, her account was that Mr Wessell had said, "I'm not going anywhere". Then subsequently she repeated, in effect, the first account given above. She said that Mr Wessell was capsicum‑sprayed a minimum of six or seven times. She accepted that she had given evidence in the Local Court that Mr Wessell had been sprayed "three times at least". She explained this difference as being that she had "thought about it more the last few days". Ms Gluvic maintained that she saw, at the time and also on her security footage video subsequently, the officers striking Mr Wessell and capsicum‑spraying him after he was handcuffed and lying on the ground. I could not discern that from the video footage. (b) Matters of credit 1. I was not persuaded that Ms Gluvic's account of what was spoken at the door was complete and accurate. She was some distance away, she could not see what was occurring, she heard noises when in her kitchen before she heard words when she went to her veranda, she may only have been able to hear those words which were spoken loudly and she gave evidence of Mr Wessell asserting that he had called Nathan Rees although no other witness, including Mr Wessell, gave evidence of Mr Wessell saying that. Her different versions of what was said might be minor and unsurprising, but it, with the change in her recollection of the number of times Mr Wessell was sprayed, indicated that the accuracy of her evidence may have suffered from the lapse of time and her reconstruction of the events in recent days. 2. Resolving the differences between the testimony of Mr Wessell, on the one hand, and the police officers and the sheriff, on the other, the latter supported to some extent by Michael Wessell, depends on the credit of all witnesses. The State challenged Mr Wessell's credit on a number of bases. 3. The State submitted that the video footage showed that Mr Wessell was pulled from the front door, that he turned or was spun around to face the front door and then was capsicum‑sprayed. I accept this submission. It indicates that Mr Wessell's account of what had occurred is mistaken to the extent that he had said both that he was not facing the front door when he was sprayed and that he was not pulled from the front door before being sprayed. This is a matter of some importance in assessing the reliability of his account. 4. The State relied upon Mr Wessell's convictions for dishonesty offences. Mr Wessell was convicted in 2002 on a charge of make or furnish a statement which was false or misleading, arising from Mr Wessell signing a false declaration. He was also convicted of other dishonesty offences thereafter until 2014, including receiving property of less than $5,000, break and enter, and larceny. Making a false statement does not involve a false statement under oath, so far as it appeared from the evidence, and so, contrary to the State's submission, it is not directly equivalent to giving false evidence. Nevertheless, it involves making a false statement when under an obligation to be truthful and is relevant to assessing Mr Wessell's credit although its cogency is lessened by the passage of time. 5. Mr Wessell gave evidence that he wanted to and did call Nathan Rees, his local Member, to "find out what was going on". The State submitted that this was unbelievable evidence as Nathan Rees could not have known anything of this eviction. I accept that Nathan Rees' ignorance of the matter is likely to be true, but that does not deny the possibility that these were Mr Wessell's thoughts at the time. He was awoken immediately before coming to the door and that, coupled with his upset, was unlikely to produce logical thoughts. That a phone call was made, or attempted, found some support in Michael Wessell's testimony and in the video footage where Mr Wessell was shown to have his phone in his hand for some of the period whilst he was in the front yard. Although no other evidence of the phone call was produced, I accept, on the balance of probabilities, that Mr Wessell did attempt to phone Mr Rees, and I do not think Mr Wessell's evidence of his purpose for calling Nathan Rees is a weighty matter against his credit. 6. Mr Wessell denied that prior to 21 November 2013 he knew anything of the eviction other than that he was behind on the rent. However, some five months earlier he had mentioned to his doctor, recorded in the medical notes, that he was being evicted. There was also an attempted eviction in August 2013, but that did not proceed apparently because Mr Wessell was not home. The evidence did not establish that Mr Wessell was aware of that eviction attempt. Further, the fact that Mr Wessell had received correspondence in July that he was being evicted is not compelling evidence that after five months, in late November, with no action having been taken to his knowledge, it was still a matter at the forefront of his mind, particularly as he appears to have paid his rent up to 29 August 2013. I do not think Mr Wessell's claim of ignorance about the eviction when he came to the door is a significant matter impacting on his credit. That he was extremely upset at the doorway might indicate that whatever he had been told months earlier, he remained shocked and surprised that he was then and there being evicted. 7. The State also criticised Mr Wessell's denial of matters of which he also testified that he had no recollection. Mr Wessell gave evidence that: he did not recall being told he was under arrest while he was at the front door, he did not hear the words and he denied that the words were said; he did not have a recollection of the conversation at the front door; and subsequently he did not recall his earlier evidence. I think the minor differences between these accounts may impact adversely on the probative force of his evidence about the words not being said, but it does not persuade me that Mr Wessell was deliberately telling falsehoods. 8. The State also submitted that Mr Wessell had exaggerated Officer Maleckas' height. Mr Wessell's estimation of Officer Maleckas' height was wrong by perhaps three inches. But Mr Wessell was relying on a memory of an incident four years ago, where for much of the time Mr Wessell may have been sitting on the ground or on a seat or bent over below Officer Maleckas. I do not think this error by Mr Wessell could be a proper basis to conclude that Mr Wessell was unreliable or dishonest in other respects. 9. The State also relied upon Mr Wessell's complaint of his skin burning from the capsicum spray, including his groin and backside, which was said to have persisted for a couple of days, whereas no mention was made in the ambulance report, the police report or at a visit to the doctor the next day. But Mr Wessell's evidence about his burning groin was of a statement made "to no one in particular" at the eviction incident and so it is unsurprising that it was not recorded. His evidence of his skin burning from the capsicum spray was that the pain or discomfort went away "probably two days later." It was supported by his account to his doctor the day after the incident: in his notes the doctor recorded "has been sprayed all over body about 6 times with capsicum spray, only had underpants on", and "reacted to spray with ongoing watery eyes and burning sensation of skin". I do not regard any perceived inconsistency on this matter as having any adverse impact on Mr Wessell's credit. Rather, the evidence tends to support Mr Wessell's account of his pain. 10. The State also relies on Mr Wessell's evidence of being struck on the lower back, in the region of the coccyx, by Officer Maleckas seeking to retract his baton, as evidence contrary to his credit. That evidence was said to conflict with the security footage and there were no contemporaneous complaints in the days following the incident. I accept that the footage appears to support Officer Maleckas' account that he unsuccessfully attempted to retract his baton on the ground (an action which is performed by striking the baton on a hard surface), that he was away from Mr Wessell and that the baton was thereafter holstered unretracted. As Mr Wessell was face down on the grass at the time, it seems that he could not observe precisely what was occurring but may have drawn inferences from the pain he felt. At the visit to his doctor the next day, Mr Wessell said he had "pain in area he was hit with baton" and "wants a report for his lawyer". The doctor then recorded various bruises and his eye condition. No mention is made of his coccyx and any coccyx problem does not appear in any record to have been attributed to the eviction incident until 2015. Even a statement a year after the incident by Mr Wessell did not refer to the baton being retracted on his coccyx or buttock but on his "back" and he made no complaint of continuing soreness other than in his "hip". Whilst this is a matter that does not assist Mr Wessell, it is best dealt with in respect of the evidence going to that particular allegation of damage. I am not persuaded that it is a matter of significant value in relation to his honesty; it may merely represent a mistaken recollection of what occurred during the incident. 11. The State also relied on Mr Wessell's inconsistent account of the status of his hard drive of security footage, which Mr Wessell at various times said was broken, was replaced, or that the box had been replaced. This evidence did not assist Mr Wessell's credit yet its significance was limited because of troubling aspects of the evidence of the security footage: the evidence comprised not the original footage from Mr Wessell's home but Officer Maleckas' phone recording of what was on that footage. The original footage had been returned to Mr Wessell at a time when the criminal proceedings were pending and when it remained relevant evidence. This peculiarity leaves submissions about credit based on evidence by Mr Wessell about the footage less weighty than if a clear and satisfactory account of the police conduct in relation to the footage was available. 12. Whilst some of the matters raised do not impact adversely on Mr Wessell's credit, others do point to his unreliability as a witness. The video footage, in particular, does not appear to support his account of what occurred at the door, even if it is a less than clear record of what did occur. 13. Other matters not raised by the State, such as Mr Wessell's admitted poor memory of the incident, the circumstance that it occurred immediately after he had woken from sleep, and the circumstance that the police account is largely supported by the four witnesses other than Mr Wessell who were at the door, also impact adversely on the reliability of Mr Wessell's account. 14. Officer Maleckas' evidence was challenged by Mr Wessell. Officer Maleckas gave evidence in the Local Court of having capsicum sprayed Mr Wessell once only, but conceded after having seen the video that he sprayed him four times. It is evident that Officer Maleckas was wrong with his initial evidence. However, I am not satisfied that his evidence before the Local Court represented other than his recollection at the time. The use of the capsicum spray occurred at a time of tension and uncertainty when actions were spontaneous and reactive rather than carefully planned. Those matters may impact adversely on his recollection of details. 15. Like Ms Gluvic, Officer Maleckas changed his evidence on the number of times the capsicum spray was used: she, because of more recent thought on the matter, he, because of having viewed the video. The video footage shows Officer Maleckas raising his capsicum spray and aiming it towards Mr Wessell about seven times. Officer Maleckas attributes the difference between the video footage and the four sprays he conceded to a difference between aiming and spraying. Whilst that could have occurred, and he may even have a memory of it having occurred, in light of Officer Maleckas' faulty recollection previously I do not accept it to be an accurate recollection. I conclude that Mr Wessell was sprayed six times and that Officer Maleckas' evidence was unreliable as to the precise number of sprays. 16. Officer Evans also gave evidence of one or two sprays and I also reject the accuracy of this evidence. 17. Officer Maleckas was also challenged on the basis that he gave evidence of information that he had received that Mr Wessell had threatened the Department of Housing: "I will kill you and burn the house down if I am evicted". This information was also recorded in the facts sheet prepared by Officer Maleckas for the Local Court proceedings. The facts sheet was tendered by the plaintiff. No witness was asked about this information other than Officer Maleckas in cross‑examination, although Officer Evans said he could not recall any of the contents of the conversation with the Department of Housing prior to attending the doorway. 18. I have no evidence that Mr Wessell made this statement. He was not asked about it and no attempt was made by either side to rely upon the information as truth of the fact of a threat. On the other hand, there was no evidence to dispute that Officer Maleckas received the information. I do not regard the defendant as having an obligation to corroborate information which was tendered by the plaintiff and elicited in cross‑examination of Officer Maleckas by the plaintiff. I also do not therefore regard it as reflecting adversely on Officer Maleckas' credit. 19. Mr Wessell also submitted that Sheriff Singh was not called and that this should give rise to an adverse inference. Whilst the State need not call all nine persons present, and did give notice to the plaintiff early in the trial that it would not be calling Sheriff Singh, it gave no evidence of any particular reason why the sheriff was not called. Sheriff Singh was not merely an observer but spoke to Mr Wessell, and on Officer Evans' account, gave Mr Wessell some papers. As Sheriff Singh is an employee of the defendant, I am inclined to draw the Jones v Dunkel inference that his evidence would not have assisted the defendant. But otherwise I consider it appropriate to decide the disputed matters on the evidence before the Court. I do not regard the absence of Sheriff Singh as a reason to reject the testimony of the other officers. 20. I also take into account the likelihood that in this planned operation some thought would likely have been given to the circumstance that Mr Wessell may refuse to go. That is why the police were there. It is also why, after the sheriffs had made the first attempt, they called forward the police to the door. The expectation that the words of arrest might need to be used in the circumstance of an aggressive refusal to leave premises gives some support that words of arrest might have been used in this case. 21. The circumstance that Mr Wessell was wrong in respect of the first use of the capsicum spray is demonstrated by Mr Wessell's security footage. That this did not occur in the doorway, contrary to Mr Wessell's evidence, is a reason to prefer the police account of what occurred in the doorway. 22. One final piece of evidence is Sheriff Traynor's incident report made some two months after the incident, where he said of Mr Wessell coming to the door: "a few minutes later a male wearing just underwear opened the door. He asked in an manner what was going on, officer singh started explaining why we were there and what was going to happen. Mr Wesell said 'I wasnt told, I havnt been given any paperwork, this is bullshit and im not going any where'. Mr Wessell was informed by officer Singh that discussions had been made with him and that the eviction was going ahead. Mr wessell was displaying a more aggressive attitude and said 'im going nowhere, piss off". I then informed Mr Wessell that the eviction was going ahead and that it is best if he spent the time gathering some personal items of clothing and any medical items he might need for a few days, and that we would give him about 20 minutes to do so, he told us to 'fuck off, im going nowhere' and slammed the door on us. Officer jay Maleckas after confering with us then took over proceedings. The police officers then spoke to Mr Wessell and after a discussion, Mr Wessell was placed under arrest and after repeatedly being asked to leave the premises and refusing, Mr Wessell was forcibly removed from the premises. Spray and Batons were used on Mr Wessell." (Errors in original). 1. I was not persuaded that Mr Wessell was deliberately lying, but I nevertheless prefer the police account of what occurred at the doorway for the reasons given, particularly the consistency of the accounts of the two police officers and Sheriff Traynor, the security footage indicating support for the police account in respect of the first capsicum spray, the near contemporaneous account of Sheriff Traynor that I have quoted, and the limited support given by Michael Wessell to the police account. 5. PREVENTING A BREACH OF THE PEACE 1. A police officer is entitled to use reasonable force to restrain and arrest someone if the police officer reasonably believes it is necessary to prevent a breach of the peace (see Lavin v Albert [1982] AC 546 at [553]). The police officer must at least fear harm to a person or property: State of NSW v Tyszyk [2008] NSWCA 107 at [96], State of New South Wales v Kuru [2007] NSWCA 141 at [149], R v Howell [1982] QB 416. 2. Thus, it is not enough that Officer Maleckas has purported to arrest Mr Wessell, as I have found, but he must reasonably believe that the arrest was necessary to prevent a breach of the peace. That is, he must reasonably fear harm to a person or property, and that an arrest is necessary to prevent it. 3. Officer Maleckas gave evidence of his apprehension of violence against him. He said this was based on a number of matters: 1. he had received information from the Department of Housing, from a person on the day that Mr Wessell had previously phoned and stated, "I will kill you and I will burn the house down"; 2. he was previously told in August 2013, in connection with the earlier eviction attempt, and believed that Mr Wessell had previous convictions, was possessed "with special skill" and "has been known for ABH [assault involving bodily harm], break and enter, illicit drug user"; 3. Mr Wessell was yelling and screaming at the sheriffs, forcefully refusing to leave by shouting the words I have earlier recounted and slamming the door. Mr Wessell was, according to Officer Maleckas, "very aggravated and angry...as angry as you can get without throwing a punch" in his conduct towards the sheriffs. Mr Wessell accepted that he was very upset, and Ms Gluvic gave evidence of hearing his raised voice from next door. Mr Wessell continued to refuse to leave when directed by the police; and 4. Mr Wessell was a man of imposing size, especially relative to Officer Maleckas. 1. I accept that these matters were taken into account by Officer Maleckas. The only matter in serious dispute was the information of the threat, but for the reasons given, I accept that Officer Maleckas received the information. These are matters that render reasonable his belief. 2. Officer Maleckas was authorised by the warrant of eviction to assist the sheriffs to obtain possession of the premises, with reasonable force if necessary. The position adopted by Mr Wessell appeared to necessitate the use of force, as repeated requests and commands to leave the premises were strongly rejected by Mr Wessell. Arrest was a means of securing possession of the premises without necessarily involving significant physical force. 3. The apprehension Officer Maleckas had and the warnings that were conveyed to him would only be emphasised by the imposing presence of an angry Mr Wessell forcefully refusing to leave the premises. These matters formed a reasonable basis to apprehend a breach of the peace by means of physical altercation between the police and Mr Wessell and also the prospect of damage to the house in that altercation. 4. I conclude that the arrest to prevent a breach of the peace was justified by the reasonable belief of Officer Maleckas. 6. THE REASONABLENESS OF THE FORCE 1. Mr Wessell also challenged the reasonableness of the force. 2. After the arrest, the police officers each sought to take Mr Wessell's wrist, but they were unable to do so as Mr Wessell forcefully withdrew his arms. Mr Wessell denied this, and his evidence is supported by his son. However, Michael Wessell could not have seen Mr Wessell's right wrist from where he was located, behind and to the left of Mr Wessell. In any event, in the contest of evidence, I accept the evidence of the police officers, in part, because this is action which they took and which may not have been noticed or remembered by Mr Wessell, who was immediately thereafter pulled by the head out of the door. 3. The words of arrest and the attempt to have Mr Wessell submit by taking his wrist both proved ineffective. Force was then the only option to both achieve the eviction and secure the arrest of Mr Wessell. Thereafter, Mr Wessell was pulled from the door, sprayed with capsicum spray, and when directions to have Mr Wessell lie on the ground so as to enable handcuffs to be applied were resisted by Mr Wessell, further spraying and hitting on the legs with a baton followed. 4. Mr Wessell complained that the capsicum spray and the baton strikes were excessive. As I earlier indicated, I conclude from the video evidence there were at least three strikes of the baton and six sprays, but whether there were less sprays, as Officer Maleckas asserts, or more strikes, as Mr Wessell asserts, is not, in my view, especially significant. Once the police officers were entitled to arrest Mr Wessell, they were entitled to effect that by handcuffing him, particularly in the circumstances that justified the arrest. 5. The police officers carried their usual appointments, namely, in order of increasing gravity: capsicum spray; baton; Taser; and firearm. When confronted with a large man who had repeatedly refused to submit to lawful direction and arrest, the police were entitled to use the force of the capsicum spray to effect the arrest. 6. When the capsicum spray did not produce compliance, a higher degree of force, involving the use of the baton, became necessary. Mr Wessell did not submit to the arrest until shortly before he was handcuffed and after receiving repeated capsicum sprays and baton strikes to his legs. It is of no utility to speculate whether any greater degree of force was reasonable if Mr Wessell had continued to refuse to submit or had responded differently to how he ultimately responded. Other means of force might have been adopted, such as knee or arm strikes by the particular police officers, but they might be thought to likely be more productive of injury to Mr Wessell and risk injury to Officer Maleckas as he would have then been seeking to overpower a much larger person without the use of his appointments. 7. Mr Wessell gave evidence that he stated that he was not resisting and referred to his allergy. I accept that he did voice his desire not to lie on the grass because of his allergy, although he did not go to ground on the dirt or path where there was no grass. In the exigency of the moment, I regard it as reasonable for the police to disregard that request until such time as Mr Wessell became compliant, which occurred once he lay on the ground and was handcuffed. An ambulance was then called and Mr Wessell was "decontaminated" of the capsicum spray. 8. I am not persuaded that Mr Wessell said he was not resisting. None of the officers accepted that. I accept that other than refusing to get on the grass, Mr Wessell may have thought he was not resisting. However, the video footage shows Mr Wessell during the interaction picking up a chair and apparently moving it a metre or more, and also shows Mr Wessell at one stage moving towards the officers. Mr Wessell knew he was not complying with the officers' demands to get on the ground. In that context, picking up a chair or moving towards the officers is likely to be interpreted as a form of aggressive noncompliance. Whatever he thought or said, Mr Wessell's actions and his inaction in failing to comply spoke louder and constituted resisting the police in his lawful arrest. 9. In my view, the police were entitled to proceed to secure Mr Wessell's arrest and the use of capsicum spray and baton strikes in all the circumstances was a reasonable use of force to achieve that end. 10. Because of the video footage, the evidence of the officers and the absence of back injuries indicating any such blows, I do not accept that Mr Wessell was struck after he was handcuffed. If he had been struck or sprayed at that time, I accept that that would not be a reasonable use of force and would render the police liable for assault. Mr Wessell gave evidence that his complaint after his arrest was that his coccyx had been struck by the end of a baton by Officer Maleckas in an attempt to retract his baton. I do not accept this, and accept that the footage shows Officer Maleckas attempting to retract his baton away from Mr Wessell and that afterwards he holstered his baton unretracted. 11. Accordingly, I conclude that Mr Wessell did resist the police and that the police's escalating attempts to subdue him so as to effect the arrest involved the reasonable use of force. 12. In that event, Officer Maleckas' conduct in these circumstances was compliant with the obligations of reasonable force imposed by s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") as well as with the terms of the warrant. I accept that the police were entitled to use the force they used and so the action for assault must fail. 7. A CONTINUING ARREST 1. Mr Wessell also complains about the continuing arrest, including until 1.45pm when he was released on bail from Blacktown Police Station with a bail condition that he would not return to the Toongabbie house. 2. After Mr Wessell was handcuffed he was informed that he was also being arrested for resisting police in the execution of their duty. At that stage Mr Wessell was apparently still on the premises although he was shortly to be escorted to a paddy wagon to be taken to Blacktown Police Station. 3. Officer Maleckas justified the continuing arrest or imprisonment on the basis that he feared a further offence of Mr Wessell returning to the property and potentially the same circumstances of a forceful eviction occurring again. Returning to the property would be a trespass and if Mr Wessell was able to gain access to the house, it might result in another difficult eviction with similar resistance. Further, I think it was reasonable to believe that unless prevented by the arrest, and subsequently by the bail condition, Mr Wessell might return to the premises where many of his possessions were, where he had lived for several years, and where he had just minutes earlier aggressively refused to depart and vacate. To release Mr Wessell in the front yard merely with service of a Court Attendance Notice would have appeared almost to be an invitation to reoccupy the premises. 4. In my view, the requirements of s 99(3) of LEPRA, that it was necessary for the arrest to continue, were satisfied here, at least until such time as a bail condition was imposed at Blacktown Police Station that Mr Wessell could not return to the Toongabbie house. Therefore, Officer Maleckas' suspicion on reasonable grounds that the arrest was necessary to prevent the commission of another offence under s 99(3)(c) of LEPRA is satisfied. 8. DAMAGES 1. Although the findings I have made are sufficient to dispose of the proceedings, I should make some brief comments about damages in the event that Mr Wessell, contrary to my findings, was successful in the proceedings. 2. Mr Wessell had worked as a council labourer, most recently with Burwood City Council removing graffiti from 2008. He was involved in a motor vehicle accident in August 2011 when driving a small truck that was hit heavily from behind. He did some light duties in about August 2012 but did not thereafter work prior to the arrest on 21 November 2013. Mr Wessell received workers compensation for his injuries until his claim for damages was settled in January 2014. 3. Mr Wessell also suffered a hand injury when he was hit by a car whilst a pedestrian, about a month after the arrest. He claimed to have suffered no long-term effects but he accepted that he was unconscious for a period after the incident. Medical records indicated other injuries to his back and right side. 4. Mr Wessell in these proceedings claimed damages for injury to his coccyx and a psychiatric injury. There is no evidence to establish the latter (other than a report dated prior to the incident from a psychologist of his then condition, which cannot assist to establish a psychiatric injury from the eviction incident). No psychiatric treatment was obtained by Mr Wessell notwithstanding that he received a substantial amount of damages in early 2014, some two months after the eviction, and so at least had some additional resources available to enable him to obtain treatment. 5. I have already referred to the absence of any complaint about the coccyx until 2015. The photographs of the injuries on the day following the incident and the report to the doctor on that same day do not indicate any complaint of an injury to Mr Wessell's coccyx. Neither does the security footage support it. 6. Mr Wessell had not worked for more than a year at the time of the incident. The effects of the baton strikes had passed within a couple of weeks and the effects of the capsicum spray in a couple of days. Without an injury to his coccyx or a psychiatric injury there is no basis for any claim for lost earning capacity, a matter which was accepted by Mr Wessell's counsel. 7. Mr Wessell was comfortable to proceed to the doorway dressed only in his underpants, both when dealing with the sheriffs and subsequently when dealing with the police. He gave no direct evidence of any embarrassment or humiliation from the incident. These two matters would thus not, in my view, increase any award for aggravated damages. 8. I note that the causes of action involve an allegation of an intentional act with intent to cause harm. This was not disputed by the defendant (other than the conduct was lawful for the reasons given). It follows that under s 3B(1) of the Civil Liability Act 2002, the Act does not apply and the common law would be applicable to the assessment of damages. 9. I have found that Mr Wessell was imprisoned or held under arrest for a period of a little under three hours. He was forcefully beaten with a baton, sprayed with capsicum spray and suffered as a consequence for up to two weeks. I would be inclined to award by way of compensatory damages the sum of $30,000 for the assault and $5,000 by way of compensation for the period of imprisonment. 9. COSTS 1. Costs should follow the event. 2. Whilst there were some aspects of the defendant's conduct of the proceedings which did not assist to achieve the most expeditious resolution, I am not minded to alter the application of the usual rule indicated by r 42.1 of the Uniform Civil Procedure Rules 2005. 10. ORDERS 1. The orders of the Court therefore are: 1. Judgment for the defendant. 2. Plaintiff to pay the defendant's costs. 3. Any further application in respect of costs to be notified to my associate within seven 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: 31 August 2017