Court of Appeal Supreme Court New South Wales Medium Neutral Citation: John Edward Thornton v State of New South Wales [2017] NSWCA 248 Hearing dates: 20 September 2017 Decision date: 06 October 2017 Before: Meagher JA at [1]; Gleeson JA at [41]; Fagan J at [42]. Decision: 1. Appeal dismissed. 2. Appellant pay respondent's costs of the appeal. Catchwords: TORTS – battery – assault – where police used significant force in arresting plaintiff – where arrest said to be wrongful at common law and under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether primary judge erred in preferring police evidence over contrary evidence of plaintiff – whether primary judge erred by failing to provide adequate reasons for preferring police evidence – whether primary judge erred in finding that police officers identified themselves as police and that communicating required information was otherwise impracticable Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 201, 230, 231 Cases Cited: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Jones v Dunkel (1959) 101 CLR 298 Krivoshev v Royal Society for the Prevention of Cruelty to Animals [2005] NSWCA 76 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Monie v Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25 Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 State of New South Wales v McCarthy [2015] NSWCA 153 Woodley v Boyd [2001] NSWCA 35 Category: Principal judgment Parties: John Edward Thornton (Appellant/Cross-Respondent) State of New South Wales (Respondent/Cross-Appellant) Representation: Counsel: A Moutasallem (Appellant/Cross-Respondent) J E Maconachie QC with M S Spartalis (Respondent/Cross-Appellant) Solicitors: Hepmac Lawyers (Appellant/Cross-Respondent) Crown Solicitor's Office (Respondent/Cross-Appellant) File Number(s): 2016/268763 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2016] NSWDC 198 Date of Decision: 19 August 2016 Before: P Taylor SC DCJ File Number(s): 2013/363898 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Headnote [This headnote is not to be read as part of the decision] The appellant (Mr Thornton) and another man were arrested by police for suspected involvement in drug operations. The arrest involved significant force, and Mr Thornton subsequently sustained or was diagnosed with numerous injuries. He claimed damages for battery and assault against the State of New South Wales. Two liability issues arose for determination by the primary judge (Taylor DCJ): first, whether the arrest was unlawful because information was not disclosed to Mr Thornton as required at common law or under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 201; and secondly, whether police used excessive force in arresting Mr Thornton by kicking him as he lay on the ground. Preferring the evidence of the police over that of Mr Thornton, the primary judge found against Mr Thornton on both issues and gave judgment for the State. Mr Thornton appeals against that decision. Held (Meagher JA, Gleeson JA and Fagan J agreeing), dismissing the appeal: i. The primary judge had to decide whether to accept Mr Thornton's version of events, which was substantially inconsistent with the evidence of three police officers, two of whose credibility and persuasiveness were not challenged. His Honour did not err in preferring the police evidence over that of Mr Thornton or in failing to address a submission that aspects of the evidence given by a third officer (Officer Smith) were implausible. The 10 month period between the end of the hearing and the delivery of judgment could not alter that conclusion: [21]–[27]. Monie v Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25; Krivoshev v Royal Society for the Prevention of Cruelty to Animals [2005] NSWCA 76 applied. ii. Officer Smith was justified in believing at the outset that Mr Thornton may have been armed and his evidence was not implausible on the basis that, had he held such a belief, he would not have acted as he did. Woodley v Boyd [2001] NSWCA 35 applied. Judgment MEAGHER JA: Outline 1. On 4 December 2010, the appellant (Mr Thornton) and another man (Mr Roby) were arrested by police because of their suspected involvement in drug operations. Significant force was used in Mr Thornton's arrest and he suffered injuries, the causation and seriousness of which were subsequently disputed. He brought proceedings for damages against the State for assault and battery and alleged that his arrest was wrongful. The State maintained that the arrest was lawful and that the officers did not use any more force than was reasonably necessary in order to effect it. The primary judge (P Taylor SC DCJ) dismissed Mr Thornton's claims: Thornton v State of New South Wales (No 4) [2016] NSWDC 198. This appeal is from that order. 2. It was accepted that the police had reasonable grounds for suspecting that Mr Thornton and Mr Roby had committed drug-related offences. The first matter in issue was whether before or at the time they arrested Mr Thornton the relevant officers complied with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), s 201, which included (as at 4 December 2010): (1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. (d) (Repealed) (2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)): (a) if it is practicable to do so, before or at the time of exercising the power, or (b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power. … 1. The powers in sub-s (3) include to arrest, stop, detain and give a direction to a person: s 201(3)(a), (f), (i). 2. The second principal matter in issue was whether the police used excessive force in making the arrest. Relying upon LEPRA, ss 230 and 231, the State maintained that Mr Thornton did not comply with the officers' initial directions and then violently resisted their attempts to arrest and handcuff him. 3. The arrest was made in a clearing surrounded by bushland at Fullerton Cove, near Newcastle. Four officers were involved. They were Brad Smith, Dale Woods, Emilie Deacon and Andrew Wheatley, who had followed Mr Roby to that place in two vehicles. The decision below 1. The primary judge at Judgment [2]–[3] described the liability issues between the parties: 2 Mr Thornton concedes that the police had reasonable cause to arrest him. However, he claims damages for unlawful arrest on the basis that he was not told by the arresting officers that they were the police, that he was being arrested and the basis for the arrest. Thus, the nature of the statements made by the police at the commencement of and during the arrest is in issue. 3 The second issue is whether, as Mr Thornton claims, he was unlawfully assaulted by being punched and kicked by police officers standing by him as he lay on the ground. In general terms, the contrary police case is that the arrest involved a struggle with a resisting Mr Thornton, and that he was not kicked, at least not with a foot. Brad Smith, a police officer, conceded that he used a "knee strike" in an attempt to subdue Mr Thornton. 1. The resolution of these issues turned on whether the primary judge accepted Mr Thornton's version of events. His Honour did not do so, concluding at Judgment [37] and [38]: 37 I find that Mr Thornton was not in the act of submission, but was resisting, struggling and fighting with police at the time he received blows. I do not accept that he believed he was being robbed, nor that the police did not reveal who they were before the struggle commenced. I prefer the police officers' evidence of what they said, and heard other officers saying, some of it contemporaneously recorded, than Mr Thornton's uncorroborated recollection several years later, of what he heard, saw (when his eyes were not closed) and felt during the arrest, which occurred in the days before he was unconscious for an extended period. 38 I conclude that Mr Thornton was told at the outset of the appearance of the police that they were the police, that he should get on the ground and that he was being arrested. I am also persuaded by the evidence that he resisted arrest, that he strongly expressed a great reluctance to return to gaol, and that the force of three police officers and the use of capsicum spray were needed to subdue him. Caroline Puru [Carolyn Puru had been living in a relationship with Mr Thornton between 2007 and 2010] gave evidence of seeing on his body "like a shoe shape bruise", but she was unable to identify the location of this bruise, or the side of his body it was on. I found this evidence unconvincing and I reject Mr Thornton's account that he was kicked with a foot. I find that Mr Thornton was subject to knee striking and punching by Mr Smith and high force and pressure to his nose or face by Ms Deacon. 1. Reasoning as follows, the primary judge concluded that the police officers had complied with LEPRA, s 201. Before the arrest, Officer Smith had communicated that he was police officer and directed Mr Thornton to get onto the ground and provide his hands. Officer Deacon had also displayed her badge. It was not reasonably practicable for Officer Smith to disclose his name, place of duty and the reason for the arrest before Mr Thornton was handcuffed. And it was not disputed that those details were provided by Officer Wheatley immediately after the arrest: Judgment [41], [44]–[47]. Accordingly, there was a lawful exercise of the powers of arrest and to give directions. Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 and State of New South Wales v McCarthy [2015] NSWCA 153 provide recent examples of cases in which there was held to be a lawful exercise of power notwithstanding that the information required by s 201 had not been provided before or at the time of exercising the power. 2. His Honour also concluded that, in the face of Mr Thornton's "resisting directions and arrest, [and] fighting and struggling", the police were entitled to use force to subdue him, including by knee strikes and punches, so as to effect the arrest and prevent his escape: Judgment [48]. 3. Notwithstanding his rejection of Mr Thornton's claim, the primary judge proceeded to assess damages. At the time of the alleged assault, Mr Thornton had a history of gastrointestinal disorders, including the presence of duodenal ulcers. He had also injured his back in a fall two or so days earlier. The injuries for which he claimed were fractures to the fifth to eighth ribs on his right side; fracture injuries to his lower back (specifically, fractures to the L1 spinous process and to the right L1, L2 and L3 and left L2 transverse processes); a comminuted fracture of the nasal bone; and superficial cuts and abrasions to the forehead and abdomen. The following injuries were claimed as diagnosed or suffered after 4 December 2010. On 6 December, Mr Thornton was admitted to the intensive care unit for ventilatory support following respiratory failure secondary to a combination of rib fractures and pre-existing chronic obstructive pulmonary disease. On 7 December, an operation was performed to repair a ruptured duodenal ulcer. On 8 December, post-operative sepsis or blood infection was diagnosed. And, on 29 December, a CT scan showed a defect in the anterior abdominal wall with herniation of the bowel, consistent with a wound rupture of the earlier surgical site. 4. The primary judge described Mr Thornton's most significant injury as his "abdominal disfigurement and disability resulting from a ruptured duodenal ulcer": Judgment [51]. His Honour found that knee strikes to his abdomen and weight on his torso could have caused the rupture of an existing duodenal ulcer and concluded that the events of his arrest materially contributed to the severe disfigurement from which Mr Thornton now suffers: Judgment [51]–[55]. He assessed general damages for those injuries and their psychological consequences at $200,000 and allowed $10,000 for future out-of-pocket expenses. His Honour rejected Mr Thornton's claims for past and future care. The issues in the appeal 1. By his Amended Notice of Appeal (containing 14 grounds), Mr Thornton challenges the primary judge's finding on liability and seeks an order that the proceeding be remitted to the District Court for a reassessment of damages. In the alternative, he seeks an order that the proceeding be remitted to the District Court for a new trial on liability and damages. Grounds 12 and 14, which are directed to his Honour's assessment of damages, are not pressed. The State cross-appeals against that assessment, principally on the ground that the primary judge erred in finding that any unlawful conduct of the police officers caused or materially contributed to the severe disfigurement (which was found to be due to the ruptured duodenal ulcer and subsequent complications). 2. The principal grounds of appeal assert error in preferring the evidence of Officers Smith, Deacon and Wheatley to that of Mr Thornton (ground 11), and in failing to provide adequate reasons (ground 13). It is said that the reasons of the primary judge did not address important submissions made as to the implausibility of two aspects of Officer Smith's evidence; that this constituted a failure to explain adequately why his evidence was to be preferred over that of Mr Thornton; and that the 10 month period between the end of the hearing and the delivery of his Honour's judgment heightened the trial judge's duty to explain clearly why the evidence of the officers was to be preferred over that of Mr Thornton. In support of these grounds, it is also said that his Honour's reasons fail to address a submission of Mr Thornton's counsel that the source of a reference in the medical records (Judgment [30]) to resisting arrest was the police, and not Mr Thornton. 3. The remaining grounds address the two liability issues identified by the primary judge and extracted at [6] above. In relation to the first, it is said that the primary judge erred in finding: that Officer Smith and the other officers identified themselves as police (grounds 3 and 5); that it was not practicable for Officer Smith and the other officers to disclose the reason for the arrest before exercising that power (grounds 7 and 8); and that there was compliance with s 201 with the result that the arrest was lawful (grounds 6 and 9). As to the second, the primary judge is said to have erred in finding: that Mr Thornton was resisting arrest (grounds 1 and 2); that Mr Thornton was not kicked by the officers (ground 4); and that the officers did not use more force than was reasonably necessary (ground 10). Grounds 11 and 13 1. In order to deal with the argument in support of these grounds, it is necessary to summarise the competing evidence given by Mr Thornton on one hand and Officers Smith, Deacon and Wheatley on the other. (Officer Woods did not give evidence in the proceeding below.) It is then necessary to consider his Honour's reasons given for making the findings at Judgment [37] and [38], which are extracted in [7] above. 2. The competing accounts of those witnesses are summarised at Judgment [13]–[27]. It is necessary to set that summary out in full in order to give an understanding of the fundamental differences between Mr Thornton's account and the accounts of those officers: (a) Mr Thornton's account 13 Mr Thornton claimed that he met Mr Roby to "walk". He parked in the clearing at Cox's Lane. "As soon as" he saw in his rear vision mirror the arrival of Mr Roby's car, he "opened the door and go out…to go where Brett was". He did not approach the right-hand driver's side of Mr Roby's car. Mr Roby parked two car lengths away. Mr Thornton then "noticed a white station wagon" which he "thought at the time…had a wheel on the roof" and a bale of hay on the tray of the truck. He said the car door was open on the left-hand side and a person was "standing on the running board". The car was 20 feet away. Whilst the car was still moving, the person on the running board ran at Mr Thornton with a gun in his right hand, pointed it at him and pushed Mr Thornton with his left hand onto the ground. His bottom first hit the ground and he laid back while "the other person" remained standing and started to kick Mr Thornton's right side. 14 Mr Thornton attributed no words to this person, who, he said, did not hold up his police identification, did not state he was the police, or say, "Don't move, get on the ground," or "You are under arrest." Mr Thornton said, "Take me watch, take me wallet, take me money," and believed he was being robbed. At some stage, this person said, "Get on the fucking ground." The gun was about 12 inches from Mr Thornton's head. Mr Thornton stated that the thought of being "pistol-whipped" took his mind to his time in Grafton gaol and he said, "Don't torture me, I've been tortured in Grafton Gaol." Mr Thornton denied moving away, falling backwards, yelling out anything else, or lying on his back and kicking out. He said his hands "were visible at all times". He denied being tackled on the ground, receiving shoulder contact to his chest or struggling violently. He was not agitated but scared, and he had his eyes closed most of the time. He said he did not violently resist anybody whatsoever or thrash around. Mr Thornton said only the man's boots came into contact with him. Most of the time he had his eyes closed. He said, "All I done was refuse to roll into me stomach. Now I know they're police." 15 Mr Thornton first denied anything else was said to him but then recalled the other person saying, "Here's another chapter for your book, Johnny," as he continued kicking: Mr Thornton had written a book about his experience in Goulburn gaol. He then felt other people kicking him, noticed a woman's face, thought she "may have dive bombed me with her knees because she knocked the wind out of me stomach". He "was feeling tremendous pain all over my body". He said he "didn't really know where me hands are" but that "[m]y hands were definitely visible at all times" and that after having "listened to the evidence, I believe that I stretched me hands out to try and prevent the body from being kicked so I'd copped the brunt of the kicks on my arms." He said that someone "put a foot or a knee" on his nose and broke it, with "tremendous force". He said, "[W]hen I got sprayed in the eyes…I went, 'Oh, that's police,' and I rolled onto me stomach, and I allowed myself to get handcuffed…I didn't resist". He said that only after the incident and him being searched did one of the police officers then identify himself and notify him that they were police officers. 16 Mr Thornton said that when the ambulance arrived he "was feeling in pain…All over my body, and the top half of me body…both sides of me ribs and me back" including both sides of his chest and "around into [his] abdomen on both sides". 17 After about half an hour at the Raymond Terrace Police Station, Mr Thornton said he "was getting colder and colder" and complained, "I've been assaulted and bashed by police officers and I feel like I'm going to faint. Could you please get an ambulance." Then Mr Thornton told a nurse, "I'm not the accused here, I'm the victim." That is his last memory of the events. Sometime later he was told by his family that he had been "in a coma for a long period of time", he "went into shock and…couldn't talk for two days". He noticed he was "hand-cuffed, leg-ironed", and he remained in hospital until granted bail on 16 March 2011 in respect of drug offence charges. He returned home and "walked around with a suction pump on" his stomach. 18 By the time Mr Thornton returned home he had no real problems with his ribs or his nose but his low back "was really hurting" and for a month he had to "crawl to the bathroom…crawl to my bed and I had to drag a box". The pain was nine out of ten in hospital and "went down to about four out of ten". In doing housework, "I get tremendous back pain and through bending and everything I get cramps and I can no longer do what I used to do." Mr Thornton gets embarrassed in public and has been asked by security to lift up his shirt to reveal his abdomen because its irregular appearance might suggest he is hiding something. It affects his social interactions including interaction with his children. Mr Thornton is 65 years old. (b) Police Officer Brad Smith's account 19 Mr Smith gave evidence that his vehicle was following Mr Roby's vehicle at a distance of about 800 metres, and that when he arrived at the clearing Mr Thornton was beside Mr Roby's vehicle, standing at the driver's side door. Mr Smith, wearing plain clothes like the other officers, exited the vehicle, drew his gun and pointed it directly at Mr Thornton, and screamed loudly, "Police don't move get on the ground." Mr Thornton began walking away, backwards, and as Mr Smith advanced, walking towards Mr Thornton, Mr Thornton stumbled backwards onto the ground. He said Mr Thornton was yelling out, "Just shoot me, you may as well shoot me. I'm not fucking going back to gaol." 20 Mr Smith continued to move forward towards Mr Thornton, re-holstered his firearm and said, "Police, don't move," extremely loudly. Mr Thornton began kicking with his legs towards Mr Smith. Mr Smith then tackled him to pin him to the ground. In doing so, Mr Smith's right shoulder would have hit Mr Thornton's chest. He was seeking to control Mr Thornton's hands because he believed Mr Thornton was reaching towards the front of his pants for a gun. 21 Mr Thornton did not show his hands despite being so commanded a number of times. He was told, "You're under arrest," but Mr Thornton struggled violently, kicking and thrusting about. Mr Smith moved lower on Mr Thornton's torso area. At that stage, Mr Smith believed that Mr Woods was present. Mr Smith was unable to restrain Mr Thornton. Then police officer Emilie Deacon jumped on Mr Thornton in the chest or head area. Mr Smith saw Mr Thornton try to bite Ms Deacon which caused Mr Smith to begin "knee striking" Mr Thornton in his lower torso area, and saying, "Stop struggling you're under arrest." 22 Officer Andrew Wheatley then came to assist by placing himself on top of Mr Thornton. Mr Thornton was still struggling. Mr Woods suggested a dose of capsicum spray and threw a can to Mr Smith. Mr Smith sprayed Mr Thornton's face which caused Mr Thornton to submit, and he was then arrested and handcuffed. Mr Wheatley then identified himself and stated that both Mr Thornton and Mr Roby were under arrest for supplying prohibited drugs. 23 A statement of Mr Smith made on 2 February 2011 evidenced that Mr Smith punched Mr Thornton in order to subdue him and to prevent Ms Deacon from being bitten. (c) Police Officer Emilie Deacon's account 24 Ms Deacon was also involved in the arrest. She turned into Cox's Lane and followed Mr Woods' vehicle into the sandy clearing where Mr Thornton and Mr Roby were located. She heard Mr Woods and Mr Smith yelling, "Police. Don't Move. Get on the ground. Police." She saw Mr Smith standing about a metre from Mr Thornton, who was lying on his side with his hands in front of him and she saw and heard that Mr Thornton was enraged, face purple, screaming, "You're going to have to fucking kill me I'm not going back to gaol." It was the most violent resistance she had seen in her policing career. Ms Deacon held open her police wallet with a blue badge inside, and said, "Police, show me your hands, police." Mr Thornton looked at her and said, "You're going to have to fucking shoot me. I'm not going back to gaol. Just shoot me then." Mr Smith then moved forward and wrapped up Mr Thornton, putting his body weight on his upper body and his legs behind Mr Thornton to contain his legs as Mr Thornton was kicking out at him. Ms Deacon then moved to assist, putting her firearm into her bum bag and taking hold of his upper arm and saying, "Get your hands out. Show me your hands." Mr Thornton continued to lock his hands in tight and struggle, kick and wrestle, and tried to bite Ms Deacon's hand. She then pushed his face down with her right hand as hard as she could whilst trying to drag his arm out with her left hand. The struggle with Mr Thornton continued until Mr Wheatley arrived, who knelt between Ms Deacon and Mr Smith and attempted to assist by pulling Mr Thornton's arms out from the front of his body, whilst Mr Thornton was constantly screaming, "You're going to have to shoot me, you're going to have to fucking kill me, I'm not going back to gaol." Mr Wheatley said, "Stop struggling you silly old bugger. You just give me your hands." Then Mr Woods, who was behind Ms Deacon, said, "Here Smithy give him a dose of this." A can of capsicum spray went past Ms Deacon and Mr Smith picked it up and sprayed Mr Thornton. She received some of the spray which caused her to cough, splutter and have some difficulty breathing. Mr Thornton soon ended his struggle as he began to cough and splutter from the capsicum spray. He was rolled forward and Ms Deacon handcuffed his hands behind his back. Mr Roby was about five metres away. 25 Ms Deacon denied that Mr Smith had punched Mr Thornton in the stomach, and did not recall or see him kneeing the plaintiff as forcefully as he could. She signed a statement within a day or so of the incident. (d) Police Officer Andrew Wheatley's account 26 Mr Wheatley followed the car driven by Ms Deacon into the clearing at Cox's Lane. He heard Mr Woods yell, "Emilie needs help," and he ran to see Mr Smith and Ms Deacon struggling with Mr Thornton. Mr Wheatley described that Ms Deacon was struggling with Mr Thornton's head and chest area, and Mr Smith was struggling with Mr Thornton's legs and torso. Mr Wheatley went between them and put his weight onto Mr Thornton, to stop him from struggling, kicking and trying to grab his arm. He heard Mr Thornton say "Just shoot me, I don't want to go back to gaol," and he heard Mr Smith say, more than once, "Stop struggling. You're under arrest. Give us your arms." He observed Mr Thornton's arms tucked underneath in front of him. He said, "Stop fighting. Give us your arms." Mr Thornton continued struggling, kicking and moving his legs and was rigid with his arms, refusing to obey the directions he was given. Mr Woods yelled "Give him some of this." He then saw Mr Smith catch a can of capsicum spray thrown by Mr Woods from about five metres away, and spray that into the face of Mr Thornton. Mr Thornton then stopped struggling and was able to be handcuffed. Mr Wheatley then asked Police Inspector Jeffrey Farmer to call an ambulance. He told Mr Roby and Mr Thornton who he was, that they were under arrest for supplying prohibited drugs and gave them a warning about not being obliged to say anything because it will be recorded and may be used in evidence. 27 Like Ms Deacon, Mr Wheatley signed a statement within a couple of days of the events at Cox's Lane. He denied that Mr Thornton complained of being assaulted by the police. 1. Before extracting the primary judge's reasons for preferring the officers' evidence, four matters should be noted. First, there was medical evidence explaining the absence of any evidence from Officer Woods. Secondly, the statements signed by Officers Deacon and Wheatley, within a day or so of the incident, were not tendered in evidence. However, it is apparent from the transcript that Mr Thornton's counsel had copies of those statements by the time those witnesses were cross-examined and did not suggest that the accounts they gave were in any material respects inconsistent with their statements. Thirdly, Officer Deacon's evidence was that at the time she arrived Mr Roby was on the ground face down. She could not say what happened to him after she then moved to where Mr Thornton was on the ground. The transcript indicates that Mr Roby was present in court on several days during the first week of the trial. Although counsel for Mr Thornton announced on the first day that she had decided to call him to give evidence, she did not do so and the State made a Jones v Dunkel (1959) 101 CLR 298 submission. 2. The primary judge's reasons for preferring the version of events given by the police officers are at Judgment [30]–[36]. They include the following: 30 Mr Thornton's account faces some challenges. He claims to not have resisted. However, his evidence that he "didn't resist" once he had been sprayed with capsicum spray is inconsistent with never having resisted. Indeed, he accepted as "Correct" that he "stopped fighting against these three people" once he was sprayed with capsicum spray. He concedes that he refused to roll onto his stomach, thus indicating resistance to the demands made of him by police. He also informed his doctor that his injuries occurred when he resisted arrest and refused to follow instructions (Exhibit C, p16). The triage notes at Hunter Hospital Emergency, of Mr Thornton's admission later that day, repeatedly refer to resisting arrest and, alike with the ambulance report, make no reference to a belief about being robbed. 31 Mr Thornton's evidence of a station wagon, of a bale of hay on the tray, of a wheel on the roof, and of a running board all are contrary to the other evidence, are not elsewhere supported and are inherently unlikely. The reference to a tray and a station wagon are internally inconsistent. His evidence of having his eyes closed for most of the time must lessen his ability to accurately describe what was occurring, including whether the blows he received were from punches, knee strikes or kicks, and from whom the blows came. That is presumably why he states in his next answer: "I believe that I was being kicked over all parts of my body". 32 Other inconsistent evidence of Mr Thornton included that he said he was only contacted by the initial man's boot, and yet he also asserted that he was pushed and a hand placed on his shoulder. … 35 Although there are minor differences in the accounts of the police officers, they are consistent in their evidence that Mr Thornton resisted arrest by not submitting, by screaming that he was not going back to gaol, by not relinquishing his arms and by kicking out. Both Mr Smith and Mr Wheatley gave evidence of Mr Thornton being told he was under arrest and Mr Smith and Ms Deacon repeated that they were the police. The police accounts of what occurred are supported by the contemporaneous statements of Messrs Deacon and Wheatley, both of whom gave evidence in a straightforward and precise manner which I found credible and persuasive. 36 Mr Thornton's credit is weakened by his past criminal record. His account could have been assisted by Mr Roby but Mr Roby gave no evidence, and no explanation for Mr Roby's absence was provided. The treatment of Mr Roby at the time of his arrest, not involving any evidence of violence, also is not supportive of the police having engaged in gratuitous violence against Mr Thornton. 1. Mr Thornton's counsel submitted to the primary judge that Officer Smith was not a reliable and credible witness, in part because of the alleged implausibility of two aspects of his evidence. The first was his evidence of believing that Mr Thornton was reaching for a firearm secreted down the front of his pants when he re-holstered his own firearm and moved in to tackle Mr Thornton. In cross-examination, it was put that this evidence was "completely untrue", the suggestion being that an officer in those circumstances would not have put his or her firearm away, but rather would have kept it trained on the person sought to be arrested. The second was Officer Smith's evidence that, upon arriving at the scene and stepping out of the vehicle driven by Officer Woods, he saw Mr Roby reach for what he believed to be a firearm in the back of his vehicle, drew his own firearm, and then ran in the direction of Mr Thornton in order to apprehend him. It was similarly put in cross-examination that this evidence was "completely unbelievable". 2. It is contended that much of the case at trial turned on the competing evidence of Mr Thornton and Officer Smith, particularly in relation to the "critical initial stages of the chain of events", which are said to have occurred before Officer Deacon arrived at the scene. It is submitted that the primary judge's omission to address this submission demonstrates a failure on his part "to adequately explain why the evidence of Officer Smith was to be preferred over the evidence" of Mr Thornton: Appellant's Amended Written Submissions, [35]. It is suggested that the delay before judgment may explain why the trial judge gave insufficient consideration to the arguments made. 3. Regardless of any implausibility of aspects of Officer's Smith's evidence (a subject considered at [33]ff below), this argument proceeds from a wrong premise and must be rejected. Acceptance of Mr Thornton's case did not turn on whether his evidence of the initial confrontation with Officer Smith was preferred to that of Officer Smith. 4. The factual issues which the primary judge had to determine concerned the whole of the events leading to Mr Thornton's arrest and handcuffing. His case was that he was pushed to the ground and kicked by one person and then by others; that none of those who were kicking him announced that they were police officers; that he believed that he was being robbed; and that he did not violently resist being detained. 5. Officer Smith's evidence was that he first identified himself as "police" and directed Mr Thornton to "get on the ground". Officer Deacon said she heard Officer Smith yell to that effect. She also identified herself as a police officer and produced her badge. She said Officer Smith then moved forward and "wrapped up" Mr Thornton, who was on the ground. Officer Smith's evidence was that, as Mr Thornton was on the ground "kicking with his legs", he "tackled him to pin him to the ground". Thereafter, Officer Deacon's evidence was generally consistent with that of Officers Smith and Wheatley that Mr Thornton had "resisted arrest by not submitting, by screaming that he was not going back to jail, by not relinquishing his arms and by kicking out": Judgment [35]. 6. There remained a short period before Officer Deacon first saw Officer Smith in which it was possible that he may have kicked Mr Thornton. However, from that point, Officer Deacon's evidence was substantially inconsistent with that of Mr Thornton. On her evidence, he was told that those giving him directions were police officers and could not have believed he was being robbed. And neither she nor Officer Smith kicked or continued to kick Mr Thornton while he was on the ground. Acceptance of Officer Deacon's evidence required the rejection of the whole of Mr Thornton's account. 7. Faced with the task of deciding whether to accept Mr Thornton's version of events, the significance of the implausibility of the two aspects of Officer Smith's evidence referred to is not obvious. As to the second, it was not controversial that Officer Smith had turned his attention to Mr Thornton, rather than Mr Roby. And concerning the first, Officer Deacon's evidence was that, when she first saw Officer Smith, he was standing about a metre from the end of Mr Thornton's feet and after a short time "wrapped [Mr Thornton] up", a description not markedly different from that of Officer Smith of having tackled him while on the ground. None of this was consistent with a version of events which had Mr Thornton being kicked whilst on the ground, first by Officer Smith and then by Officer Deacon. And there was no objective evidence (other than that rejected by the primary judge at Judgment [38] and not pressed on appeal as wrongly rejected) corroborating Mr Thornton's evidence that he had been kicked, rather than jumped on and kneed. 8. In the end, the primary judge had to decide whether he should accept Mr Thornton's evidence in the face of the contrary evidence of Officer Smith and the other officers. There was always the risk that Officers Deacon and Wheatley might have fabricated their evidence to protect Officer Smith and themselves. However, the primary judge described them as "credible and persuasive" witnesses. That finding is not challenged and it is not suggested that their evidence was "glaringly improbable" or inconsistent with any "incontrovertible" facts: cf Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. For example, there was no medical evidence that the injuries sustained by Mr Thornton could only have been caused in the manner he described. And Mr Roby was not called to give evidence of what he saw and heard, although he was apparently prepared to do so. 9. The present case is not one in which "the trial judge has not given specific and satisfactory reasons in relation to accepting or rejecting evidence" which was of importance, and any delay in the giving of judgment could not alter that conclusion: see Monie v Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25 at [43] (Hunt AJA, Bryson JA agreeing); Krivoshev v Royal Society for the Prevention of Cruelty to Animals [2005] NSWCA 76 at [119]–[124] (Giles JA). 10. As to the remaining argument in relation to ground 13, at Judgment [30], the primary judge records that the triage notes of Mr Thornton's admission at Hunter Hospital Emergency "repeatedly refer to resisting arrest and, alike with the ambulance report, make no reference to a belief about being robbed". It is submitted that this observation does not take account of Mr Thornton's submission that an earlier reference in those notes to the patient having "allegedly resisted arrest" is to be read as indicating that the later reference should not be taken as recording a statement made or information provided by him, as distinct from the police. In my view, this submission misunderstands what the primary judge was seeking to emphasise by this observation, which was the absence of any reference in those notes, whether sourced to the police or to Mr Thornton, to his having believed that he was being robbed. In that context, there was no reason for the primary judge to mention and deal with the submission referred to. 11. It follows that grounds 11 and 13 are not made out. The primary judge was entitled to prefer the evidence of the police officers and he gave adequate reasons for having done so. Grounds 3, 5, 6, 7, 8 and 9 1. Grounds 3 and 5 challenge the findings that Officers Smith and Deacon identified themselves at the outset as police officers. That was their evidence, and the primary judge's acceptance of it has not been shown to involve error. No other argument is made in support of these grounds, which are rejected. 2. Grounds 6, 7, 8 and 9 challenge the finding that it was not practicable for Officer Smith to comply with LEPRA, s 201(1) before Mr Thornton was eventually subdued and handcuffed. It was accepted that Officer Wheatley provided the required information shortly after that occurred. 3. At Judgment [45], the primary judge found: Evidence that Mr Smith was a police officer might ordinarily be provided by holding up a police badge. But he was faced with a potentially armed person, resisting directions or arrest, and he had a drawn weapon aimed at Mr Thornton. I do not accept that it was practicable for him to, at the same time, hold up his badge or otherwise evidence that he was a police officer as he had declared himself to be (although Ms Deacon, as the second officer aiming, did manage to display her badge at about the same time). The evidence indicates that Mr Smith did identify the purpose of arrest as being the reason for the direction, "don't move get on the ground". In my view, the purpose of the arrest was not practicable to disclose in circumstances of resistance, struggle, the presence of weapons and potential escape. I note also that s 201(4) contemplates there being a proper exercise of the power if multiple police are exercising it, and only one officer satisfies the statutory requirements (e.g. by Ms Deacon displaying her badge). 1. It is common ground that Officer Smith was justified in believing at the outset that Mr Thornton may have been armed. Surveillance information available before the arrest included that Mr Roby had made attempts to obtain a firearm. In this context, it is contended, as mentioned earlier, that the primary judge erred in not rejecting Officer Smith's evidence that he believed Mr Thornton might have had a firearm in his pants because had he held such a belief he would not have acted as he did. 2. In cross-examination, Officer Smith rejected the last suggestion: Q: … Why could you not have stepped away from Mr Thornton, kept your gun trained on him and waited for the other police officers to arrive? A: My belief was he was going for a firearm. I'm not prepared to wait for him to pull out a firearm and then we're in a fire-fight. Q: So you threw yourself on him. A: That's right. 1. Implicit in that answer is the officer's assessment that by pinning Mr Thornton down he could prevent his being able to "pull out" any firearm. That was an assessment open to the officer in the heat of the moment: Woodley v Boyd [2001] NSWCA 35 at [37] (Heydon JA, Davies and Foster AJJA agreeing). And the primary judge is not shown to have erred in accepting his evidence in that respect. 2. The other challenge to his Honour's conclusion in relation to the officers' compliance with LEPRA contends that Officer Smith had "ample opportunity" to convey the required details to Mr Thornton when he first arrived at the scene and was walking towards him. However, his Honour's analysis explains why it was not practicable to do so at that time. Officer Smith identified himself as a police officer and directed Mr Thornton to get on the ground. Mr Thornton was thought to possess a weapon and did not comply with that direction. The officer was justified in first seeking to detain Mr Thornton, whilst at the same time seeking to ensure his own safety and that of the other officers. Whilst on the ground, Mr Thornton was struggling, kicking and wrestling. Until he was handcuffed, there was no reasonable opportunity to talk to him and convey the required information. 3. Grounds 6, 7, 8 and 9 are not made out. Grounds 1, 2, 4 and 10 1. These grounds challenge the findings: that Mr Thornton resisted arrest; that he was not kicked by the officers; and that they did not use excessive force in arresting him. The first two of these findings depend on his Honour's acceptance of the evidence of the officers, and the rejection of the grounds directed to that question also means that grounds 1, 2 and 4 must be dismissed. The remaining ground is directed to his Honour's assessment at Judgment [48] that no more than reasonable force was used. That conclusion is only challenged on the basis that "the police narrative is incorrect". As that premise is not made out, ground 10 also must be dismissed. Conclusion 1. The appeal from his Honour's conclusion that the State is not liable for any injuries resulting from Mr Thornton's arrest should be dismissed. That makes it unnecessary to consider the State's cross-appeal in relation to the assessment of damages. That cross-appeal assumes that Mr Thornton's appeal is successful and challenges the findings, implicit in his Honour's damages assessment, that "either gratuitous kicking and punching or alternatively more than reasonable force in arrest" caused or contributed to the injuries complained of by the appellant. As the primary judge has not made findings as to either of those scenarios, each of which proceeds from an acceptance of Mr Thornton's version of events, this Court would first need to do so to determine the causation issue raised by the cross-claim. In my view, this Court cannot adequately address that preliminary subject in the absence of submissions from Mr Thornton. Those submissions were invited but not forthcoming. Accordingly, this is an appeal in which this Court should not deal with the grounds raised by the cross-appeal: cf Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12] (Gleeson CJ, Gummow, Kirby and Hayne JJ). 2. The orders I propose are: 1. Appeal dismissed. 2. Appellant pay respondent's costs of the appeal. 1. GLEESON JA: I agree with Meagher JA. 2. FAGAN JA: I agree with Meagher JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2017