District Court New South Wales Medium Neutral Citation: Shalhoub v State of New South Wales [2017] NSWDC 363 Hearing dates: 14, 15, 16, 17, 20, 21, 23, 24, 27 March; 21, 24 November (written submissions); 1 December 2017 (written submissions) Date of orders: 14 December 2017 Decision date: 14 December 2017 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the plaintiff in the sum of $82,018.63. (2) Defendant to pay the plaintiff's costs. Catchwords: TORTS – intentional tort - false arrest – unlawful imprisonment – assault and battery – police – suspect on reasonable grounds – stalking – arrest reasonably necessary – informed of arrest – as soon as reasonably practicable – reasonable force – continued detention – damages – aggravated damages – exemplary damages – interest – interest on non-economic loss Legislation Cited: Civil Liability Act 2002, Pt 2, Pt 7, s 3B, s 5, s 11, s 11A, s 16, s 31, s 51, s 52, s 53, s 54 Crimes (Domestic and Personal Violence) Act 2007, s 8, s 13 Law Enforcement (Powers and Responsibilities) Act 2002, s 99, s 201, s 202, s 230, s 231 Law Reform (Vicarious Liability) Act 1983, s 6, s 8, s 9B Uniform Civil Procedure Rules 2005, r, 14.10, r 14.26, r 14.27 Cases Cited: Bunyan v Jordan (1937) 57 CLR 1 Chapple v Electrical Trades Union [1961] 3 All ER 612; [1961] 1 WLR 1290 Cheng v Farjudi [2016] NSWCA 316 Christie v Leachinsky [1947] AC 573 Croucher v Cachia [2016] NSWCA 132 Dean v Phung [2012] NSWCA 223 George v Rockett (1990) 170 CLR 104 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; [2003] HCA 33 Goldie v Commonwealth of Australia (No 2) [2004] FCA 156 Gray v Motor Accidents Commission (Gray v MAC) (1998) 196 CLR 1; [1998] HCA 70 Hayer v Kam [2014] NSWSC 126 John Edward Thornton v State of New South Wales [2017] NSWCA 248 Johnstone v State of NSW [2010] NSWCA 70; (2010) 202 A Crim R 422 Konneh v State of New South Wales (No.3) [2013] NSWSC 1424 Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 MacDougal v Mitchell [2015] NSWCA 389 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3 Moses v State of NSW (No 3) [2010] NSWDC 243 Mulholland v Australian Electoral Commission (2004) 220 CLR 181 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57 New South Wales v Zreika [2012] NSWCA 37 Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72 Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 Robinson v State of New South Wales [2017] NSWDC 289 Ruddock & Ors v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262 State of New South v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 State of New South Wales v Exton [2017] NSWCA 294 State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 State of NSW v Abed [2014] NSWCA 419 State of NSW v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 State of NSW v Le [2017] NSWCA 290 State of NSW v McCarthy [2015] NSWCA 153 State of NSW v Randall [2017] NSWCA 88 State of NSW v Smith [2017] NSWCA 194 Thomas v Mowbray [2007] HCA 33 Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40 Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 Zaravinos v State of NSW (2004) 62 NSWLR 58; [2004] NSWCA 320 Texts Cited: J Fleming, The Law of Torts, 8th ed, LBC (1992) Ritchie's Uniform Civil Procedure NSW The Holy Bible, King James Version Trindade and Cane, The Law of Torts in Australia, 3rd Edition, OUP (1999) Category: Principal judgment Parties: Andrew Michael Shalhoub (plaintiff) State of New South Wales (defendant) Representation: Counsel: Mr J Sheller (plaintiff) Mr P Menzies QC and Mr C Gregory (defendant) Solicitors: Greg Walsh & Co Solicitors (plaintiff) McCabes Lawyers (defendant) File Number(s): 2015/211824 Publication restriction: None Judgment Heading Paragraph A. Background 1 B. The Legislation 6 C. The issues 8 D. Suspicion of stalking based on reasonable grounds 15 (a) Stalking 15 (b) The suspicion of Senior Constables Skinner and Poulton 22 (c) Did the arresting officers suspect stalking? 26 (i) Senior Constable Hurney 28 (ii) Constable Dunn 32 (iii) Constable Muir 46 (iv) Leading Senior Constable Love 50 (d) Analysis 54 E. Arrest reasonably necessary to prevent an offence 60 F. Informed of arrest as soon as reasonably practicable 78 G. Was reasonable force used? 91 (a) Blows to the head 92 (b) Officer Dunn's search 97 (c) Analysis of the search 114 H. Was the period of detention justified? 118 I. Damages 130 (a) Events, injuries and claimed damages 130 (b) The Civil Liability Act 2002 137 (i) Unlawful imprisonment damages 139 (ii) Section 3B(1)(a) of the Civil Liability Act 2002 146 (iii) Intentional act 149 (iv) Done with the intent to cause injury 150 (v) Sexual misconduct 157 (c) Damages for unlawful arrest and imprisonment 162 (d) Damages for assault and battery 167 (e) Aggravated and exemplary damages 170 (i) Relevant principles 170 (ii) Aggravated damages 174 (iii) Exemplary damages 179 (f) Interest and costs 184 J. Orders 187 A. Background 1. Andrew Shalhoub was a young man, 19 years of age, not relevantly known to the police. He was with his friend, Mustapha Neffati, at a gathering in a home located in a cul-de-sac in southern Sydney on the evening of Sunday, 7 June 2015. At 2am on the Monday morning, a public holiday, Mr Neffati contacted his brother, Wassim, with a request to come and collect him and Mr Shalhoub. When Wassim Neffati arrived, Mustapha and Mr Shalhoub got into the car and they commenced the return journey. Mr Shalhoub sat in the rear. As they proceeded from the cul-de-sac onto David Rd, at about 2.20am (Exhibit A, p 149), the police activated flashing lights and Mr Wassim Neffati pulled over. Soon thereafter, Mr Shalhoub and Wassim and Mustapha Neffati were instructed by the police to put their hands out of the car. Mr Shalhoub was then pulled from the car, taken to ground, struck several times, including with blows to his head whilst he lay face down on the ground. He was handcuffed, searched and eventually informed he was under arrest. 2. Mr Shalhoub was informed of his arrest at about 2.40am (Ex A, p 63) or 2.50am (Ex A, p 129) purportedly for stalking a police officer. When the police thereafter realised that Mr Shalhoub could not have been involved in any stalking, he remained under arrest and was at 3.05am (T636/40, Ex A, p 133) taken to a police station, arriving at about 3.25am (Ex A, p 130). A police interview was conducted in connection with an investigation of "resist arrest", no charges were laid and Mr Shalhoub was released from police custody later that morning, at about 7.40am (Exhibit A, pp 132, 139). He sues for assault and battery and unlawful imprisonment. 3. When Wassim Neffati was roused from his bed at around 2am to collect his brother and Mr Shalhoub, he unwittingly proceeded behind a private vehicle driven by an off-duty female police officer who had just left Revesby Police Station. Senior Constables Troy Skinner and Matthew Poulton also left Revesby Police Station together at the end of their shift at about the same time. They observed a grey Lexus, the car driven by Wassim Neffati, make a U-turn and proceed behind the private vehicle known by them to be driven by the female police officer. The private vehicle, followed by the Lexus, followed by Officer Skinner's car, proceeded in a fairly direct route to a nearby main road, Davies Rd, where each car turned right, to the south, once the traffic lights turned green. Officers Skinner and Poulton formed the view that the Lexus was following and stalking the private vehicle driven by the off-duty officer, and telephoned the police station to report the suspected stalking. Other police responded. 4. About 3 kilometres from the police station, the private vehicle took an exit from Davies Rd onto Clancy St. Officer Skinner saw a car on Clancy St (T175/44) and assumed that it was the private vehicle containing the female off-duty officer that had taken the exit (T503/35). The Lexus did not follow, but continued a further 7 kilometres along Davies Rd, Alfords Point Rd which it became, New Illawarra Rd which Alfords Point Rd became, and ultimately proceeded to the cul-de-sac off David Rd. The cessation of the Lexus travelling behind the private vehicle, as believed by Officers Skinner and Poulton (T504/38-40), was discussed between Officers Skinner and Poulton but was apparently never relayed by either to any other police officer. 5. Officers Skinner and Poulton gave some information to assist the responding on-duty police officers to locate the grey Lexus, but otherwise had no further involvement in the incident. B. The Legislation 1. Section 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") entitles a police officer to arrest a person so long as the police officer suspects on reasonable grounds that the person is committing or has committed an offence and if the police officer is satisfied that the arrest is reasonably necessary because of a matter listed in s 99(1)(b). "99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons: (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence." 1. Section 99(2) provides: "(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant." C. The issues 1. In its defence to the amended statement of claim, the State of New South Wales denied any assault (at [4(d)]) and pleaded a lawful arrest (at [14]), particularised as: "(a) Pursuant to section 99(1) of LEPRA, the plaintiff was lawfully arrested by police who had reasonable grounds to suspect that the plaintiff had committed the offences of: a. Resist police in execution of duty; and b. Stalk/intimidation. (b) Pursuant to section 99(1)(b) of LEPRA the plaintiff was lawfully arrested by police who were satisfied it was reasonably necessary to arrest the plaintiff to: a. To prevent the continuation or repetition of the offence or another offence." 1. In the State's Outline of Closing Submissions ("DCS"), under the heading, "THE DEFENDANT'S CASE", the State at [2] submitted that: "The Defendant's case is that the Plaintiff was under arrest from the time the police stopped the Lexus on David Road. At that time, the police were exercising their power of arrest without warrant under s 99(1) of LEPRA, and believed the arrest was reasonably necessary to prevent the continuation or repetition of the offence or another offence for the purposes of s 99(1)(b)(i) of LEPRA. The Defendant used reasonable force to arrest the Plaintiff, for the purposes of ss 230 and 231 of LEPRA." 1. The Lexus had voluntarily pulled over in response to flashing police lights. Whether this could, without more, constitute an arrest of the occupants of the Lexus (cf State of New South Wales v Exton [2017] NSWCA 294 at [47]) did not arise because the State's case was clarified in closing submissions, as follows (T523/35-48): "The defendant's case is actually perfectly straightforward and it is simply this. The police had reasonable grounds to suspect that the plaintiff had committed the offence of stalking for the purposes of s 99 of the LEPRA Act. … We put it this way. The people who conducted the physical arrest of the plaintiff were the constables who removed him from the vehicle. They were acting under the direction of Mr Love." And further: "The process begins when they stop the car. But obviously at some point the actual arrest begins and that arrest begins when the officers who go to the car acting in accordance with their instructions take steps to remove them from the car and handcuff them" (T525/21-24). 1. Thus, stalking was identified as the suspected offence and a direction by "Mr Love" was identified as the foundation for the arrest. The way the State framed its case (and the forceful removal immediately after the command to get out of the car) removes from consideration the question about whether a direction to get out of the car constitutes an arrest (see Exton at [47]). Leading Senior Constable Luke Love was apparently the ranking police officer at the scene when Mr Shalhoub was pulled from the Lexus (cf T291/30-36). 2. Subsection 99(2) of LEPRA entitles an arresting police officer to rely on an appropriate direction from another police officer. This entitlement does not appear to depend on the justification for the direction. However, the directing officer is precluded from giving a direction unless he or she satisfies the requirements of s 99(1). Thus, it seems that in the event that the directing officer does not satisfy the requirements of s 99(1), the directing officer (rather than the arresting officer) is liable as if the directing officer had committed the unlawful arrest. As the State has accepted vicarious liability for the torts of the police officers, the State alone can be sued for the torts of the police officers (ss 6, 8 and 9B of the Law Reform (Vicarious Liability) Act 1983). The State did not submit that a police officer's contravention of s 99(2), by giving an unjustified direction, does not give rise to a liability. 3. Mr Shalhoub submitted that the lawfulness of the arrest involves "satisfaction of both statutory and common law requirements", relying upon Poidevin v Semaan (2013) 85 NSWLR 758 at [21]; [2013] NSWCA 334 and State of NSW v Abed [2014] NSWCA 419 at [87]. But those authorities, relying upon s 4(1) of LEPRA, state that "LEPRA expressly presupposes the continued existence of the police officer's powers at common law". The continued existence of police powers at common law does not mean that a power under s 99 of LEPRA is lawfully exercisable only upon the fulfilment of both the requirements expressed in the provision and all requirements that may attend the exercise of a common law power. Rather, the lawfulness of the exercise of the statutory power must depend upon the statutory conditions governing its exercise. 4. Accordingly, the issues that arise in the proceedings are as follows: 1. Did a relevant police officer have a suspicion, based on reasonable grounds, that Mr Shalhoub was engaged in the offence of stalking the off-duty female police officer? 2. Was the arrest of Mr Shalhoub reasonably necessary for a reason relied upon by the State and identified in s 99(1)(b)(i) of LEPRA, namely "to stop the person committing or repeating the offence or committing another offence"? 3. Was Mr Shalhoub informed of the reason for his arrest as soon as reasonably practicable? 4. Was reasonable force used? 5. Was the period of detention justified? 6. What is the appropriate compensation for any battery and wrongful imprisonment, including any aggravated or exemplary damages. D. Suspicion of stalking based on reasonable grounds (a) Stalking 1. The State asserts that the police officers reasonably suspected the offence of stalking. The State did not identify the relevant statutory provision, but s 13 of the Crimes (Domestic and Personal Violence) Act 2007 ("Crimes DPV Act") provides for the offence in the following terms: "13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. …" 1. Stalking is defined in s 8(1) of the Crimes DPV Act to include: "the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity." 1. In determining whether conduct amounts to stalking, regard may be had to "any pattern of violence … in the person's behaviour" (s 8(2), Crimes DPV Act). 2. There was no suggestion by the State that any conduct of Mr Shalhoub or Wassim or Mustapha Neffati involved the watching of, frequenting the vicinity of, or approaching, the female police officer's place of residence, business or work or any place frequented by her. Nor was there any suggestion of any pattern of violence. Rather, the basis for the suspicion is said to arise from the grey Lexus following the car of the female police officer. The state of mind required by s 99(1) of LEPRA is suspicion, "a state of conjecture or surmise where proof is lacking, or a positive feeling of actual apprehension or mistrust, amounting to a 'slight opinion, but without sufficient evidence'" (State of NSW v Smith [2017] NSWCA 194 at [78], George v Rockett (1990) 170 CLR 104 at 115). 3. I accept that observing a car following the car driven by the female police officer might provide reasonable grounds for a suspicion that the driver is involved in the "following of a person about". It might be thought, but it was not argued before me, that the subsequent words of the definition of stalking modify the meaning of "following of a person about". That is to say, following the person alone might be insufficient; the "following" must be "about…the vicinity of…a person's place of residence, business or work". Whether the "following" is, on a proper construction of the stalking definition, subject to this geographical limitation is debatable. Perhaps the repeated definite article ("the following…or the watching") suggests that the residue of the definition, after "frequenting of", does not modify the meaning of the initial words. And the statutory definition of stalking is inclusive only, and the general meaning of the word does not import any relevant geographical limitation. 4. These matters suggest that "following … about" simpliciter is part of the meaning of "stalking" under the Crimes DPV Act. But it does not matter because the "following … about" here was seen to have commenced near to, and thus, in the vicinity of, the Revesby Police Station which was the female police officer's place of work. 5. Nevertheless, stalking itself is insufficient to establish the offence. Section 13(1) of the Crimes DPV Act requires stalking, like intimidation, to be accompanied by the stated intention: to cause a fear of physical or mental harm. (b) The suspicion of Senior Constables Skinner and Poulton 1. Officer Skinner gave evidence of believing that the grey Lexus was following the private vehicle (T182/16) until the Clancy St exit (T504/37). Officer Poulton gave evidence that it was "our belief" that the off-duty officer was being followed (T226/42), again until the Clancy St exit (T249/15) and that the grey Lexus needed to be stopped "so that we could work out what was going on" (T226/40-45). Neither Officer Skinner nor Poulton gave any evidence of their belief about an intention in the driver of the grey Lexus to cause fear of harm. Evidence was given about the behaviour of the Lexus: speeding, slowing down, momentarily coming alongside and then keeping a distance from the private vehicle. But, so far as the evidence reveals, none of their observations indicated anything more to Officers Skinner and Poulton than that the Lexus was following the private vehicle. 2. I accept the evidence of Officers Skinner and Poulton that until the Clancy St exit, they believed that the grey Lexus was following the private vehicle. Once the private vehicle took the exit on Clancy St, they saw that the grey Lexus did not take that exit but proceeded further down Davies Rd/Alfords Point Rd/New Illawarra Rd, past other exits, for some 7 kilometres. They accept that they did not then believe that the grey Lexus was following the private vehicle (T249/13-16; T249/33-35; T504/36-40). In my view, there was no longer a reasonable basis for the officers to suspect that the grey Lexus had been "following" the private car "about". 3. Nor am I satisfied that at any time Officers Skinner or Poulton believed or suspected that the occupant (or occupants) of the grey Lexus was (or were) following the private car "with the intention of causing fear" of harm. Neither gave evidence of this suspicion or belief. Almost invariably the Lexus was observed to be some distance behind the private car, and nothing in the conduct of the Lexus was observed that had the capacity, let alone the likelihood (cf s 13(3), Crimes DPV Act), to cause fear in the off-duty officer in the private car. The officers made no contact with the female police officer driving the private vehicle, and it was not suggested that she was even aware of the grey Lexus, let alone in fear of harm. While actual fear of harm is not necessary to establish the offence (see s 13(4)), the absence of any enquiry of the police officer, and the absence of direct evidence by either Officer Skinner or Officer Poulton about their belief in this regard, left me unwilling to infer and accordingly unpersuaded that they had a belief or suspicion about an intention to cause fear of harm in the off-duty female police officer. And I was also unsatisfied that there were reasonable grounds for such a suspicion. 4. However, that Officers Skinner and Poulton did not have the reasonably based suspicion of an offence required for an arrest under s 99(1) of LEPRA is not determinative. They were not the arresting officers, nor did either of them direct the arrest. Attention must focus on the officers engaged in that conduct. (c) Did the arresting officers suspect stalking? 1. The State's written submissions assert that "the police officers had reasonable grounds to suspect" the offence of stalking (DCS at [10]). But s 99 does not concern itself with police officers generally, but with a police officer involved in an arrest. 2. The arrest was effected by Constables James Dunn and William Muir, assisted by Senior Constable Ryan Hurney. None of these officers had observed the grey Lexus following the private vehicle or had personal knowledge of any stalking. Accordingly, they could only be empowered to effect an arrest if (among other matters) either: 1. they received information sufficient to provide reasonable grounds for a suspicion, and they did suspect, that Mr Shalhoub had committed an offence (see s 99(1)(a) of LEPRA); or 2. as the State's final oral submissions maintained, they were directed to arrest Mr Shalhoub. As I have indicated, this direction needs to be by an officer who had suspected on reasonable grounds that Mr Shalhoub had committed an offence (s 99(2) of LEPRA). (i) Senior Constable Hurney 1. Officer Hurney assisted Officer Muir and Officer Dunn when they were removing Mr Shalhoub from the vehicle. He heard a police officer say "Get out, get out of the car" (T286/45; T288/27). He gave an affirmative answer to the leading question asked in examination-in-chief: "Was your intention at the time that you handcuffed them to arrest them?" (T298/13), although Officer Hurney did not handcuff anyone: he said Officer Muir handcuffed Mr Shalhoub (T292/20). Officer Hurney was asked whether he was acting upon his own initiative or under the direction of someone else, and answered, somewhat non-responsively, that the "handcuffing of the individuals was immediate, it was an immediate response once the vehicle had stopped and the other police arrived" (T297/46-49). He then answered affirmatively the leading question: "But you didn't have an instruction to do it, you did it" (T298/2). He referred to information that "they [presumably the occupants of the grey Lexus] were following an off duty police officer who had just left the police station" (T298/10). 2. Officer Hurney accepted that prior to his involvement he had no idea how many people were in the car, whether they had been in the car earlier, when it may have been following a police officer, and that there had been no discussion between the police officers as he approached the car (T306/19-43). 3. I was reluctant to accept Officer Hurney's answers to leading questions as sufficient evidence of whether the arrest resulted from a direction, or from the information he had received over the police radio. However, Officer Hurney had received information and may have suspected that an offence had been committed on the basis of that information, and when asked why he was "doing this" (removing and restraining Mr Shalhoub), he referred to the radio information that "they were following an off duty police officer who had just left the police station" (T298/10). It follows that Officer Hurney did not act on a direction. He may have had reasonable grounds to suspect an offence, on the basis of the radio information, but as he gave no evidence of his precise suspicion, I would be disinclined to infer it. In any event, that was not the case the State ultimately put in its closing oral submissions. 4. Officer Hurney came to the aid and assistance of Officers Muir and Dunn as they were in the process of removing Mr Shalhoub from the Lexus. He neither handcuffed Mr Shalhoub nor uttered words of arrest, nor gave any directions about the arrest. Although he assisted, it would not be correct to describe him as the arresting officer. His denial that he was acting under direction is not fatal to the State's case because he was not the principal arresting officer. (ii) Constable Dunn 1. Officer Dunn was informed that an off-duty police officer was being followed home. Officer Dunn travelled with Officer Love and Leading Senior Constable Jennifer Casey to the scene with lights and sirens on. He was directed to the location of Wassim Neffati's vehicle and said that the Lexus stopped on David Rd, 20 or 30 metres from the cul-de-sac. Officer Love then said, "Get them all out of the car" (T336/26). Officer Dunn referred to the actions of Officer Hurney, but from the evidence of Officers Hurney and Muir, it is apparent that Officer Dunn has confused the two. Officer Dunn said he heard "Officer Hurney" ask Mr Shalhoub twice to get out of the car, and when Mr Shalhoub refused and grabbed the seatbelt, Officer Dunn and, as he recalled it, Officer Hurney pulled Mr Shalhoub from the car and onto the ground facedown. Officer Dunn was subsequently involved in striking Mr Shalhoub as he attempted to have Mr Shalhoub handcuffed. Officer Muir handcuffed Mr Shalhoub and subsequently Officer Dunn conducted a body search. 2. Accordingly, there may be two bases for Officer Dunn to exercise the power of arrest: either he received information from another officer and on that basis suspected on reasonable grounds that Mr Shalhoub had committed the offence of stalking with intent (under s 99(1)(a)) or he was directed to arrest under s 99(2) as the State submits. 3. The first possibility raises for consideration whether information from another police officer may be sufficient to produce in the arresting officer the suspicion on reasonable grounds required under s 99(1) of LEPRA. There can be little doubt that it could be sufficient. Police officers must commonly rely on information supplied by others; it cannot be supposed that they can only arrest for offences that they have personally witnessed. And if information from members of the public may be sufficient to enliven a reasonable suspicion, so also may information from other police officers. Unless Officer Dunn was aware of matters that cast a significant doubt on the source or content of the information he received, he was entitled to rely upon it, both to believe or suspect that it was true, and to proceed on the basis that the information constituted reasonable grounds for the belief or suspicion it engendered. This is so even if the information was wrong. 4. The accuracy of the information conveyed by Officers Poulton and Skinner or the information conveyed to Officer Dunn is not strictly relevant. Although the State is sued as the defendant, it is because of its vicarious liability for any battery or unlawful arrest by a police officer, not because of any negligence either by the State or by a police officer. 5. Officer Dunn was informed by police radio that "Cars to start making their way to Revesby. An off duty police officer is being followed home" (T334/40). This information constituted reasonable grounds for him to suspect that the off-duty female police officer was being followed. 6. Was this sufficient information to constitute reasonable grounds for a suspicion of the offence of stalking with intent under s 13 of the Crimes DPV Act? Officer Dunn gave no evidence of being informed that the following was from the police station, but he was told of the officer being "followed home", so that if the offence of stalking is geographically confined to the locations specified in s 13, there is a reasonable basis for Officer Dunn to suspect that stalking has occurred. 7. There needs also to be a reasonable basis for a suspicion of an intent to cause fear of harm. But that cannot depend on whether information of every element of the offence was expressly relayed to Officer Dunn. Whilst I do not think that there were any grounds for Officers Skinner and Poulton to have a suspicion of intent to cause fear of harm in the driver of the Lexus, police information that an off-duty officer is being "followed home" is sufficient, in my view, for a reasonably based suspicion of an offence of stalking under the Crimes DPV Act, including of the required intent. Receipt of information comprising an abbreviated description of a type of offence together with a call to respond is a sufficient basis (in the absence of other information) for a reasonable suspicion of that offence. 8. Officer Dunn did not give evidence of holding any belief or suspicion that the occupants of the Lexus were stalking or had the requisite intent. In the absence of evidence from him on that matter or some explanation for its absence, I would not infer this belief or suspicion. Moreover, Officer Dunn testified that while he got Mr Shalhoub out of the car because he was told to do so, he had no "intention in his own mind" as to what he would do once Mr Shalhoub was out of the car (T344/30). 9. A suspicion of an offence was not why Officer Dunn pulled Mr Shalhoub from the car. Rather, Officer Dunn said that he did so because he was told to do so by Officer Love (T344/3-24). In other words, he was acting under the direction of another police officer, and his conduct falls to be considered in the context of s 99(2). 10. Officer Dunn relied on the direction of Officer Love to remove Mr Shalhoub from the car. While Officer Dunn's forceful removal of Mr Shalhoub from the car might have been properly based on a direction from another police officer, the continued confinement of Mr Shalhoub after he was outside the car is not the subject of any evidence from Officer Dunn. It is neither based on a direction formally to arrest, detain, subdue or restrain Mr Shalhoub, nor on a reasonably based suspicion that he needed to do that under s 99(1) or (2) of LEPRA. 11. Both Officers Hurney and Dunn accepted that the word "arrest" was not spoken until sometime after Mr Shalhoub had been handcuffed. There is no evidence of an instruction to "detain" in specific terms. 12. Could a direction to "Get them out of the car" involve not merely removal from the car but arrest or detention? On the one hand, no specific form of words is prescribed in s 99(2) of LEPRA for a police officer to direct an arrest. On the other hand, there seems to be a significant difference between a direction to "Get them out of the car" and a direction to "arrest them" (cf Exton at [47]). It may be that the substance of the direction can be inferred as much from what was understood as from what was said. But Officer Dunn did not understand that he was directed to arrest. Whatever his later conduct reflected, which was not attributed to any direction, his evidence was clear about his intention when Mr Shalhoub was out of the car: he had no intention of what he would do. He had no intention to arrest, and therefore I must infer, he received no direction to arrest. 13. I am not satisfied that once Mr Shalhoub was out of the car, Officer Dunn was entitled to arrest him. Officer Dunn did not, at the time, consider the matters in s 99(1) of LEPRA, and his evidence of an absence of intention of what he would do with Mr Shalhoub once he was removed from the car precludes a finding that he was then acting pursuant to the direction of another officer. 14. Officer Dunn might have had a basis to arrest Mr Shalhoub for resisting his direction to get out of the car, but he gave no evidence of this. I cannot infer that he had the reasonable suspicion and the satisfaction so as to satisfy, respectively, s 99(1)(a) and (b) of LEPRA, when he is silent on the matter. (iii) Constable Muir 1. Officer Muir gave evidence that he heard a message that an off-duty police officer was being followed home. When he arrived at the scene, he said, Officer Love instructed him to "Get them out of the car on the ground" (T371/44). The words "on the ground" might imply that the direction encompasses that the persons in the car must be subdued and be put under the control of the police, acts which might show both the intention and submission sufficient to constitute an arrest (see Smith at [137], Exton at [42]). The evidence of Officer Muir conflicts with Officer Dunn as to whether the words "on the ground" were used. Whilst others, like Officer Hurney, gave evidence of hearing "get out of the car", no one else referred to hearing "on the ground" stated by Officer Love (cf T440/16). No one else gave evidence of hearing the direction from Officer Love, and Officer Love gave no evidence of giving any direction. 2. Like Officer Dunn, Officer Muir gave no evidence of what he believed or suspected. Although Officer Muir gave no evidence of precisely what prompted his action in removing Mr Shalhoub from the car, his conduct followed immediately after the direction from Officer Love. I infer that he was acting on that direction of Officer Love, which was to get the rear passenger out of the car. 3. Although Mr Shalhoub testified to the contrary (T71/35), neither Officer Muir nor Officer Dunn gave evidence of immediately getting Mr Shalhoub "on the ground" once he was removed from the car. Officer Dunn said that he had hold of Mr Shalhoub, who was standing up and when Mr Shalhoub refused to move when told, Officer Dunn pulled him and they fell over. Officer Muir said that, in response to Officer Love's direction, he said, "Mate, hop out of the car" (T371/50) and subsequently, when Mr Shalhoub was out of the car, "as he's standing up, him and Constable Dunn have gone - fallen to the ground" (T372/29). 4. Officer Muir's account of his conduct is not consistent with following a direction to "Get them out of the car on the ground", but is consistent with Officer Dunn's account of the direction. In addition, Officer Dunn travelled with Officer Love and so was likely nearer to him when the direction was given. These matters, and my concerns about Officer Muir's evidence concerning the record of interview (considered below), cause me to prefer Officer Dunn's recollection of what was said by Officer Love. I do not accept that the direction from Officer Love embraced getting Mr Shalhoub onto the ground. (iv) Leading Senior Constable Love 1. Officer Love received a telephone call concerning a suspect vehicle that may have been following a police officer. He proceeded under lights and sirens to the location of the suspect vehicle and received "updates" while travelling. When he arrived in David Rd, either Officer Skinner or Officer Poulton pointed out where the grey Lexus was located. Officer Love saw that it was stationary. 2. Officer Love then removed the front seat passenger from the vehicle with the intention of placing him under arrest, and that passenger was handcuffed. 3. Officer Love gave the following evidence: "Q. What did you do at that time [after he arrived]? A. I went with Leading Senior Constable Casey and myself and removed the front passenger seat - passenger - front passenger from the vehicle. Q. What was your intention at that time by removing them? A. To place him under arrest." (Underlining added, T492/45-50). 1. Officer Love gave no evidence about the direction that was heard by Officers Muir and Dunn. He was not asked specifically about it. (d) Analysis 1. I am persuaded that Officer Dunn and Officer Muir forcefully removed Mr Shalhoub from the rear passenger seat of the car on the instruction of Officer Love. Mr Shalhoub was thereafter brought to the ground. Although Officer Love had the intention to arrest the passenger with whom he dealt, there was no direction to that effect to the other officers. Officer Love gave no evidence of his intention in relation to the other officers or the other occupants of the Lexus. Officer Dunn and Officer Muir gave evidence of the direction by Officer Love, but on the direction I have found, the arrest of Mr Shalhoub could not be justified by it. 2. As Officer Love's direction prompted the removal of Mr Shalhoub from the Lexus and a different view may elsewhere be taken on the nature of that direction, I propose to consider the issue that arises if Officer Love did direct the police officers to arrest Mr Shalhoub. In other words, was Officer Love entitled to arrest Mr Shalhoub, so as to satisfy s 99(2) of LEPRA? 3. In evidence in chief, Officer Love accepted the suggestion that he had received a telephone call "concerning a suspect vehicle that may have been following a police officer" (T491/26) and that he received "updates" (T491/47). The form and content of this evidence was not persuasive that Officer Love had a suspicion on reasonable grounds that Mr Shalhoub had committed the offence of stalking under s 13 of the Crimes PVA Act. Officer Love's reponses to leading questions lessened their value. He gave no evidence about what were his suspicions, if he had any, about the rear seat passenger, Mr Shalhoub. His lack of detail about the content of the "updates" left open whether and when he became aware that the Lexus was not following the police officer, or that Mr Shalhoub was not in the car during the alleged following. His failure to give evidence about any suspicion or its basis (and the failure of the State to explain that absence of evidence) preclude an inference that he did have a reasonably based suspicion. Officer Love's evidence of his intention to arrest the front seat passenger in response to a question about all of the passengers (quoted above) emphasises his lack of intention about Mr Shalhoub. 4. Further, Officer Love's acceptance of other leading questions about "at some time" becoming aware that only one person was in the Lexus when the off-duty police officer's car was being followed, without evidence of when Officer Love became so aware, tends to render more uncertain whether the requirements of s 99(2) of LEPRA were satisfied in the arrest of Mr Shalhoub. 5. Thus, Officer Love gave no evidence about his suspicion generally, about his suspicion concerning the rear seat passenger specifically, or about the basis of any suspicion, and such evidence as he did give about the rear seat passenger tended to exonerate Mr Shalhoub. I am not satisfied that Officer Love had a suspicion that the rear seat passenger, Mr Shalhoub, had committed the offence of stalking with intent. 6. In summary then, my findings are: 1. neither Officers Muir and Dunn were directed to arrest Mr Shalhoub; and 2. none of Officers Love, Muir or Dunn suspected on reasonable grounds that Mr Shalhoub had committed an offence. E. Arrest reasonably necessary to prevent an offence 1. Section 99(1) of LEPRA requires, for an arrest to be lawful, that the arresting or directing police officer is satisfied that the arrest is reasonably necessary for one of a number of specified reasons. The question of reasonable necessity only arises if, contrary to my findings, Officer Love gave a direction to arrest and had a suspicion on reasonable grounds that Mr Shalhoub had committed an offence or alternatively if Officers Muir and Dunn had such a suspicion. Thus, whether Officers Love, Muir and Dunn were satisfied of the reasonable necessity of arrest is to be considered. 2. The expression "reasonably necessary" was considered in Thomas v Mowbray [2007] HCA 33. In some contexts, "reasonably necessary" may refer to what is required for reasonable protection (see Thomas at [21]-[25]). At [490], reference was made to the judgment of Gleeson CJ in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 199-200 [39] where "necessary" meant not "essential or indispensable" but "reasonably appropriate and adapted". The adjective "reasonably" in this case tends to buttress such a construction. 3. While the term "reasonable" often imports some level of objectivity, in this context it moderates the meaning of "necessary" and makes clear that something less than what is essential is required. Here "reasonably necessary" concerns the satisfaction of the police officer: whether the police officer is satisfied that the arrest is "reasonably necessary" or "reasonably appropriate and adapted" to stop the repetition of the offence. Thus, "reasonable" in this context does not import an objective element. It is "not what the judge thought, but what the officer thought was reasonably necessary in the circumstances" (see State of NSW v Randall [2017] NSWCA 88 at [38] and also [142]). 4. No officer gave evidence concerning the reasonable necessity for the arrest. It may be accepted that stalking a police officer with intent to cause fear of harm is a serious offence, and that a police officer could be satisfied that, because of the nature and seriousness of that offence (one of the specified reasons in s 99(1)(b)), an arrest is reasonably necessary. But this is a matter on which the police bore the onus of proof, and there was no evidence that any police officer had the relevant satisfaction. Further, this reason was not pleaded, and is contrary to particular (b) in [14] of the defence. 5. There are other possible reasons specified in s 99(1)(b) of LEPRA that might have application to the circumstances of this case: to stop a person fleeing, to establish a person's identity, to obtain property connected with the offence, or to preserve evidence, but none were the subject of any submission, pleading or evidence. Officer Poulton (T252/7) and Officer Skinner (T504/42-57) gave evidence that they believed the vehicle should be stopped to respectively "work out what was going on" (T226/45) or ascertain the occupants of the vehicle. But they were not involved in the arrest of Mr Shalhoub, nor did they give evidence of being satisfied that an arrest of Mr Shalhoub was reasonably necessary. 6. No explanation was proffered as to why the officers gave no evidence about the necessity for arrest. Since this question concerned an officer's thoughts, only the officer could give relevant evidence. That Officer Love, for example, intended to arrest the front-seated passenger does not, by itself, persuade me that he was "satisfied that the arrest [was] reasonably necessary", less still that it was reasonably necessary for one of the reasons specified in s 99(1)(b) of LEPRA. 7. The State pleaded (at [14] particular (b)) and submitted that the specified reason for the arrest under s 99(1)(b) of LEPRA was "to stop the person committing or repeating the offence or committing another offence". But no officer gave evidence of a belief that an arrest was reasonably necessary to prevent the continuation, repetition or commission of any offence. The State referred to a repetition of stalking (T523/37), but as the off-duty female police officer was long gone, the possibility of a continuation of stalking her would be fanciful and was not submitted. No other person who might be stalked was identified. The possibility of other offences is without any foundation and was not submitted. Thus, the requirements of ss 99(1)(b) were not satisfied. 8. It might be arguable that the State is not limited by the particulars to [14] of the defence in establishing reasonable necessity. However, that argument, not especially appealing, need not be determined. The State did not seek to add other reasons of reasonable necessity in closing submissions, nor did it make any application to amend its defence or supplement its particulars. Rather, an alternative novel argument was submitted by the State, namely that because no reply had been filed, the allegation in [14] particular (b) of the defence had been admitted. Particular (b) states that the: "plaintiff was lawfully arrested by police who were satisfied it was reasonably necessary to arrest the plaintiff to…prevent the continuation or repetition of the offence or another offence." 1. Leaving aside the rule that one does not plead to particulars (see Ritchie's Uniform Civil Procedure NSW at [14.26.20] and [15.1.55]; Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72, 75; Chapple v Electrical Trades Union [1961] 3 All ER 612; [1961] 1 WLR 1290), there is no obligation on a plaintiff to plead to a defence. Rule 14.27 of the Uniform Civil Procedure Rules 2005 ("UCPR") provides that if there is no reply (as in this case) there is an implied joinder of issue on the defence, which (by sub rule (5)) operates as a denial of every allegation in the pleading. Rule 14.26, by which an allegation in a pleading is "taken to be admitted", has no application where there is a joinder of issues under r 14.27 (see r 14.26(1)(b)). Nor does the need for a specific denial (see r 14.10) arise because of r 14.27. 2. The State submitted that its argument, that particular [14](b) in the defence was admitted, was strengthened by the allegation in [10] of the amended statement of claim where Mr Shalhoub pleaded: "At the time of arrest of the Plaintiff, he was not informed of the reason for his arrest despite asking police on a number of occasions as to the reason why he was being arrested." 1. The State submitted that this limited the issues on the unlawfulness of the arrest to whether or not the plaintiff was informed of the reason for his arrest. 2. There are a number of defects in this argument. First, Mr Shalhoub's pleaded allegation in [10] does not expressly assert any limitation of the kind asserted by the State, and I would not infer one from its terms. 3. Secondly, the State's argument ignores other allegations in the amended statement of claim which indicate other aspects of unlawfulness, including the use of unreasonable force (see [6]), the failure to identify the arresting officers (see [9]), the absence of any belief of an offence (cf [12]), and an unreasonable period of detention (cf [12]). 4. Thirdly, the only express reference pleaded in the amended statement of claim of the unlawfulness of the arrest and imprisonment is in [14]: "The Plaintiff's arrest and his imprisonment was unlawful and not justified", an allegation which suggests no particular limits on the bases for the arrest or imprisonment being unlawful. 5. Fourthly, if the unlawfulness of the arrest was confined to the failure of the officers to supply information concerning the reason for arrest, then there is no purpose in the defendant pleading in [14] of the defence that the arrest was lawful and supplying particulars of reasonable grounds to suspect an offence, and for a police officer's satisfaction of arrest being reasonably necessary. 6. Fifthly, and most clearly, the reason why the argument fails is that the plaintiff is not obliged to plead the non-existence of facts if the burden of proving those facts lies on the defendant (see UCPR 14.10). The State accepted that the burden of establishing the lawfulness of the arrest fell upon it. In the result, the State was obliged to allege and prove all the statutory requirements for a lawful exercise of the power to arrest, including satisfaction of reasonable necessity (s 99(1)(b)), suspicion on reasonable grounds (s 99(1)(a)) and provision of necessary information (cf s 202(1)(c)), in the absence of a reply admitting some or all of these matters. 7. Accordingly, I reject the State's submission that by the absence of a reply Mr Shalhoub admitted on the pleadings that the arresting officer was satisfied that the arrest was reasonably necessary to stop the continuation or repetition of the offence or the commission of another offence. 8. These findings are sufficient to create a liability in the State for damages. The arrest and detention of Mr Shalhoub was unlawful because the requirements of s 99(1)(a), s 99(1)(b) and s 99(2) were each unsatisfied. However, I propose to deal with the other issues raised. F. Informed of arrest as soon as reasonably practicable 1. A police officer who arrests a person but fails to give the true reason for the arrest is liable for false imprisonment: Christie v Leachinsky [1947] AC 573, 587, State of NSW v McCarthy [2015] NSWCA 153 at [78]. This rule is reflected in ss 201 and 202 of LEPRA (Abed at [85]). 2. The rationale underlying the rule that: "persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason" (Ipp JA in State of NSW v Delly (2007) 70 NSWLR 125 at [9]; [2007] NSWCA 303 at [9], Abed at [88]), and that "a person is not to be deprived of her or his liberty without lawful cause" (Abed at [89], Johnstone v State of NSW [2010] NSWCA 70; (2010) 202 A Crim R 422 at [43]). 1. Sections 201 and 202 of the LEPRA require a police officer, as soon as reasonably practicable after exercising a power to stop, search, arrest or direct a person, to provide to the person the officer's name, place of duty and reason for the arrest. It was common ground that this information was not provided to Mr Shalhoub until sometime after the Lexus had pulled over and Mr Shalhoub had been removed from the car, brought to ground, struck repeatedly, handcuffed, detained and searched. The information was then provided by Officer Casey, an officer not earlier involved in the arrest, handcuffing, detention or search of Mr Shalhoub, or in the giving of the direction to remove Mr Shalhoub from the car. 2. No explanation was given by any of Officers Love, Dunn, Muir or Hurney as to why they did not identify themselves and provide a reason for the arrest of Mr Shalhoub or his removal from the car. Officer Casey first became involved with Mr Shalhoub when she went to check on Officers Dunn and Muir. She gave evidence that she saw that Mr Shalhoub was not moving and blood was coming from his mouth. She asked Officer Hurney, "Is he all right?", then knelt down and asked Mr Shalhoub, "Mate, are you all right?" He was then lying on this side. He spoke but his eyes remained shut. She then left Mr Shalhoub to check on other people, spoke to Officer Love, then returned to tell Mr Shalhoub and Wassim and Mustapha Neffati that they were under arrest. The documentary evidence indicates that the arrest occurred at 2.40am or 2.50am, some 20 to 30 minutes after the Lexus had pulled over and Mr Shalhoub was removed from the rear seat. 3. Officer Casey gave evidence that initially the occupants of the grey Lexus were being "detained" and later, when she told Mr Shalhoub that he was under arrest, she gave her name and place of duty. Officer Casey said, "I think the words I used were 'We think you were following a police officer', or 'You were following a police officer', I can't remember the exact words that I used". Officer Casey said, "That was the most appropriate time to do it, it was the soonest I could do it once I ensured that everyone was safe". 4. The following exchange occurred in cross-examination: "Q. Was part of the process that you've described for us of detaining the occupants, was that to ascertain what had been happening, what they'd been up to? A. Well no at that point I didn't know I was of the understanding that a car was following an off duty police officer, so at that point in time, I didn't know who was in the car, I didn't know what was in the car, so my number one priority at that point, was to make sure I got - that everyone was out of the car and everyone was safe. Q. But part of your processes as well, was to detain the people, this is your word, and my suggestion is, to find out what they've been up to? A. Well no not what they'd been up to, but to investigate as to whether or not they - to determine whether or not they were following [the off-duty officer]." (T460/5-17). And later: "Q. Are you familiar with the police powers? A. Yeah. Q. Which power were you exercising, in your opinion, as you were approaching the vehicle? A. So like 99 do you mean or? Q. Just generally, what power were you exercising as you - in your view, as you were approaching the vehicle with your plan to get the person that was your target, that's the gentlemen in the front passenger seat, out of the vehicle, what power— A. It would've been 99; I think they've changed recently, but to an offence had been committed, I believed, and obviously they would be detained in respect of that offence, so that I could investigate further. Q. But you've used the word 'detain'? A. Yeah. Q. And you use that seemingly in distinction to 'arrest', do they mean different things to you? A. Yeah, you detain someone straight away. And then obviously once I got some further information and I could tell them; I tell someone they're under arrest - so for me, I arrest someone, I tell them they're under arrest. Q. So before that they're not arrested but just detained so you can work out what's going on? A. Well no I did - the first thing I do is detain them, maybe it's my figure of speech; I detain someone and then I tell them they're under arrest, once I've ensured that the scene's secure and that they're safe." (T469/40-T470/18). 1. These passages indicated to me that so far as Officer Casey was concerned, there was an initial period of detention for the purpose of investigation – to find out "who was in the car" at the "point in time" when the "car was following an off duty police officer" (T460/8-10) – and also to ensure that "the scene's secure and that they're safe" and thereafter the occupants were "arrested". But during that interregnum between stopping the car and providing to Mr Shalhoub the information required by s 202 of LEPRA, there was no evidence that investigation took place, at least no information was sought from the occupants about how long they had been in the car. Further, LEPRA does not allow detention for the purpose of investigation unless there is first a lawful arrest. The Court of Appeal decided in Zaravinos v State of NSW (2004) 62 NSWLR 58; [2004] NSWCA 320 at [37]: "the arrests were not lawful unless each decision to arrest was made in good faith and for the purposes for which the power to arrest exists, that is, the purposes of bringing the person arrested before a Justice and conducting a prosecution; and not for some extraneous purpose. Arresting a person for the purpose of questioning him and investigating the circumstances of the suspected offence or of any other offence is arrest for an extraneous purpose." "It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary highhanded and humiliating behaviour in circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of Information and Summons as an alternative course, and the considerations favouring and adverse to taking that alternative course, are relevant where the validity of the exercise of the power to arrest is in question." Although this passage concerned different earlier provisions, the same rule is apparent from s 99(4), which only allows detention for the purpose of an investigation of "[a] person who has been lawfully arrested" (see Robinson v State of New South Wales [2017] NSWDC 289 at [44]). 1. The obligations on the police officer under s 202 of LEPRA to state their name, place of duty and reason for the exercise of the power extend as much to stopping a person (s 201(1)(a)), searching a person (s 201(1)(a)) or directing a person to get out of a car, get on the ground or put their hands behind their back (s 201(1)(f)) as they do to arrest (s 201(1)(a)). 2. During a struggle, it may not be reasonably practicable to provide the information required by s 202 of LEPRA (see John Edward Thornton v State of New South Wales [2017] NSWCA 248 at [36]). But once Mr Shalhoub was handcuffed, the s 202 information was still not given, and Mr Shalhoub was thereafter searched, and left for a time, for as much as 30 minutes, before being given the statutory information. Mr Shalhoub gave evidence that he was handcuffed, "sitting upright on the grass" and "lying down" for half an hour before he was searched and thereafter told that he was under arrest by Officer Casey (T74/47-T75/10; T76/36-50). Officer Casey's reason that she was elsewhere, including checking on the safety of other officers, is not an explanation for why the information was not provided by Officers Dunn or Muir. Nor does it explain why Officer Casey did not give that information when she first spoke to Mr Shalhoub when she checked on him after he was handcuffed. 3. Moreover, it was apparent that before the police approached the grey Lexus it had pulled over, was stationary and the occupants remained in the car. I could see no reason why the occupants could not be informed at that time of the reason for them being stopped and being directed to get out of the car. The suspicion that they had recently been following a police officer from near Revesby Police Station and down Davies Rd could have been readily and briefly stated. At that time there was no need to check on the safety of officers. Officer Casey gave evidence that she was able to say to the occupants, "Put your hands out, put your hands out of the car" (T439/35) and she noticed that the person in the front passenger seat, on whom she was focused, put his hands out of the car. She gave no evidence of any non-compliance with that direction. As the car was stationary and blocked by police cars, there was no prospect of it departing or its occupants fleeing, and as Officers Muir and Dunn, on their evidence, had the opportunity repeatedly to request Mr Shalhoub to get out of the vehicle, there was a clear opportunity to inform Mr Shalhoub of the reasons for his arrest. As it was readily able to be done, so it was reasonably practicable to do it. In those circumstances, once the car had been stopped, it was reasonably practicable for the occupants to be informed of the reason why they had been stopped, why they needed to be directed to "put your hands out" and why they were being arrested. 4. Accordingly, because it was reasonably practicable to state the statutory information required in s 202 of LEPRA immediately, the failure to do so was a breach of the section and rendered the detention, direction or arrest of Mr Shalhoub unlawful until such time as the information was provided. Even if the arrest was otherwise compliant with s 99, this failure would render the force used on Mr Shalhoub in pulling him from the car, subduing him, handcuffing him, searching him and detaining him, unlawful, until Officer Casey had provided Mr Shalhoub with the statutory information at about 2.50am. 5. A question arose as to whether a failure to provide as soon as reasonably practicable a reason for the arrest could retrospectively render prior conduct unlawful (that is, conduct before the earliest reasonably practicable time for provision of the information). In State of NSW v McCarthy [2015] NSWCA 153 at [78] and [79], it was found that "[t]he lawfulness of that exercise is not expressed to be contingent on the subsequent provision of information", that such a construction of s 202(1)(c) and 202(2) ought not be adopted as it would render "the lawfulness of the conduct of the police officers uncertain", that the preferred construction is that the conduct is only unlawful after the earliest reasonably practicable time to provide the information has passed, and that this "reflects the position under the common law" and "gives effect to the rationale for [the] requirement, being that the person who is the subject of the exercise have the opportunity to respond, explain and, where appropriate, co-operate". These principles were ultimately accepted by Mr Shalhoub. 6. In closing oral submissions in reply, the State asserted that a failure at the earliest reasonably practicable time to provide a reason for the arrest did not render unlawful any subsequent exercise of the power to arrest. The rationale for such a principle was not explained, nor was it explained how such a principle could sit with the decision in McCarthy at [79] that the statute on its proper construction reflects the common law position that "the provision of information" was "a condition of the lawful exercise of police [power] of arrest", and with the other authorities such as Christie, Delly, Abed and Johnstone cited above. In my view, the submission had no merit. G. Was reasonable force used? 1. Reasonable force is no defence to Mr Shalhoub's claim if the arrest was otherwise unlawful. But on the assumption, contrary to my findings, that the arrest was lawful, the police were still obliged to use reasonable force (see LEPRA, ss 230, 231). Although Mr Shalhoub challenged the police's entitlement to use a significant level of force, pulling Mr Shalhoub from the Lexus and to the ground and striking his arms for the purpose of getting him to put them behind his back to be handcuffed might not be unreasonable force if it was necessary to effect an otherwise lawful arrest. However, there are two elements of police conduct towards Mr Shalhoub that were specifically alleged by Mr Shalhoub to involve an unreasonable level of force, so as to constitute unlawful conduct even if the arrest was otherwise lawful: the blows to the head and the search of Mr Shalhoub's groin. (a) Blows to the head 1. Officer Dunn struck Mr Shalhoub on the head on a number of occasions while Mr Shalhoub was lying face down on the ground. Officer Dunn said: "I probably did about five or six hammer strikes to his shoulder as a distractionary technique to try and pull his right arm out from under him as I'm doing these hammer strikes. As we were all in a struggle a few of these hammer strikes missed and hit him in the side of the head." (T339/20-24). 1. A hammer strike is a forceful, downward motion extending the arm to strike someone with the bottom of the fist. Officer Dunn said he did not intend to hit Mr Shalhoub on the side of his head. He said he subsequently noticed that Mr Shalhoub had blood on his mouth and some swelling on the right side of his face. He did not initially concede that the swelling on Mr Shalhoub's face was due to his hammer strikes, nor did he concede that there was force in his hammer strikes "[e]nough to make it hurt" (T346/50-T347/1). Given that the purpose of the hammer strikes was to force Mr Shalhoub to surrender his arms or not resist being handcuffed, this evidence was difficult to accept. 2. Officer Dunn said that Mr Shalhoub was positioned face down on the grass. He conceded that "I don't know where I hit him" (T349/18), he could not say "whether it was below or above his right ear" (T352/18-19) and he "can't remember" if some other officer could have been responsible for the marks on Mr Shalhoub's face. Officer Dunn admitted that he missed the mark, about the upper bicep, by "quite a distance" (T352/26-32) and by "a long distance" (T352/39-42). He considered the possibility that the facial marks arose from when Mr Shalhoub hit the ground, and denied that he had caused the injury to the left side of Mr Shalhoub's face. 3. The recording of the subsequent interview and relatively contemporaneous photographs showed that Mr Shalhoub had readily observable facial and head injuries which came about in the incident. Officer Dunn was not a small man. He admitted to striking Mr Shalhoub on the head a "few times", "at least twice", and there was no evidence of any other officer striking Mr Shalhoub's head. A "few" is a small number, perhaps not the Biblical eight (KJV 1 Peter 3:20, cf 2 Peter 2:5) but, in context, more than two. I find that Officer Dunn repeatedly struck Mr Shalhoub, on the head and face, to cause the injuries to Mr Shalhoub. There is no evidence to the effect, and I do not accept, that Mr Shalhoub's injuries occurred when he went to ground on the grass. In the police interview, Officer Gray asked whether a "scratch" was "caused from the roadway", to which Mr Shalhoub said, "Yeah, everything yeah". But in context, viewing the recording, the "roadway" was not a term Mr Shalhoub used and it seemed to be understood by him as a reference to the incident rather than the road being the mechanism of the resulting injury. 4. I also find that Officer Dunn was at least reckless, not caring where his blows landed, in delivering the initial hammer strike blow to Mr Shalhoub's head. Thereafter he knew he had struck Mr Shalhoub's head and continued to strike him again, to the head. Officer Poulton accepted that blows to the head are "mostly…unacceptable" and an action that, "consistent with [his] training and experience", he "wouldn't do" (T270/1-15). There was no contrary evidence. Officer Dunn did not seek to justify blows to the head or face, which were way off target. I do not accept his evidence that the blows to the head were unintentional, if that is evidence that he intended not to strike Mr Shalhoub's head. Accordingly, Mr Shalhoub would be entitled to damages for this use of unreasonable force even if the arrest and detention of Mr Shalhoub were otherwise lawful. (b) Officer Dunn's search 1. The second specific item of alleged unreasonable force was contained in the evidence of Mr Shalhoub about the search conducted by Officer Dunn sometime, as much as half an hour (T75/10), after he was handcuffed: "Q. Then what did they do in relation to your pants? A. They felt my private area. They-- Q. Were your pants on when they did that or had they been lowered? A. No, they were on when they did it. They patted me down and he said to me, 'What's inside there?' I said, 'It's my penis.' And he said, 'Mate, what's there?' I said, 'It's my penis.' And he goes, 'Come on, mate,' and then he flopped my - he undone my button, pulled my pants down, and he started taking my penis out and he grabbed it, and I start screaming at him, and then he stopped it" (T75/34-43). The police officer than pulled his pants back up. Whether Mr Shalhoub's underpants were pulled down is not clearly asserted (see T129/4-14). Mr Shalhoub gave evidence that Officer Muir was next to him during the search (T76/17). 1. Mustapha Neffati also gave evidence that Mr Shalhoub: "was being searched and I remember hearing him - him saying, 'What are you doing? Why are you touching me there' because I'd looked over and they were touching him in his - in his private area whilst searching him." (T191/16-19). Mustapha Neffati was not cross-examined about this evidence. 1. Officer Hurney denied seeing any search of Mr Shalhoub. Officer Dunn gave evidence that he searched Mr Shalhoub "just an ordinary search so over the clothes" (T341/13). Officer Dunn took Mr Shalhoub's belt off, and he said: "we just basically use our hands to pat down and crush any areas of clothing that are loose, checked his pockets, pulled his pockets out, and then we have a technique where we call the blade of hands so we use this part of our hand and we use this to go up on both sides of the - whoever we're searching's groin, just to make sure there is nothing there" (T341/16-20). 1. When asked "did you do that or both of you - you and somebody else or just yourself? Or can't you remember", Officer Dunn answered: "I think a couple of us did it, I can't remember" (T341/30-32). Officer Dunn denied pulling Mr Shalhoub's trousers down, pulling Mr Shalhoub's penis out of his trousers or placing his hand on Mr Shalhoub's penis, seeing anybody else do that, or hearing Mr Shalhoub saying anything about his penis or the search. Nor did Officer Dunn give evidence of orally forewarning a search of Mr Shalhoub's groin. 2. In cross-examination, Officer Dunn was asked (T366/37-38), "Who had him down around his groin?" And answered, "I, I think I might have done it, I can't remember". Officer Dunn did not recall someone unbuttoning the top of Mr Shalhoub's pants. The following exchange occurred (T366/49-T367/7): "Q. I take it you don't recall his trousers being lowered part of the way down his hips or thighs? A. No that didn't happen. Q. And you deny do you, that anyone grabbed hold of his penis? A. No. Q. And squeezed it? A. No." 1. I raised a query about the form of these questions with counsel, but no further questions about the matter were put to the witness. It was not suggested by Mr Shalhoub that any of these three answers of Officer Dunn were admissions. Conversely, the form of the questions is such that the conduct alleged by Mr Shalhoub, although asked about, was not directly put to Officer Dunn. An allegation of the kind made by Mr Shalhoub is a serious allegation. That the allegation was not directly put to Officer Dunn in cross-examination (although directly denied by him in evidence in chief) is a matter that might weigh against Mr Shalhoub's account. 2. Officer Muir gave evidence that he observed Officer Dunn conducting the search. He said he was "[s]crunching his pockets and down the legs", in a "conventional way of searching" (T341/1-5). Officer Muir heard no conversation by Mr Shalhoub to the effect that Officer Dunn was touching his genitals, or took hold of his penis, nor did he see any police officer pull Mr Shalhoub's trousers down, put their hand inside Mr Shalhoub's clothing or take hold of his penis. Officer Muir gave evidence that he "was standing right next to" Officer Dunn during the search. 3. During a record of interview, conducted by Detective Senior Constable Gray in the presence of Officer Muir at the Bankstown Police Station later that morning, Mr Shalhoub stated: "And other thing as well, when they're strip searchin' me here…like, they went up, like, they pulled my pants, they were jeans, down and they put their hands on my you know what." The interview continued: DSC Gray: "Mmm." Mr Shalhoub: "They go, Mate, what's in here? They keep grabbin' and squeezing it. What was that about? When you pulled my thing down, my pants down---". Officer Muir then interjected: "Yeah." Mr Shalhoub: "---and feel my---" Officer Muir: "That wasn't me, Andrew." Mr Shalhoub: "---they felt it and I said, Mate, that's my thing…He goes, No, it's not, something in there. And he was, like, grabbing it…grabbin' it, grabbin' it, grabbin' it. I dunno." 1. After some further discussion with Officer Gray, Officer Muir asked about the struggle and Mr Shalhoub repeatedly asserted that Officer Muir "witnessed" Mr Shalhoub getting hit in the head and "He saw the whole thing" and asserts "He won't answer the question 'cause he saw it'". 2. The allegation of Officer Muir seeing Officer Dunn grab Mr Shalhoub's penis was not directly put to Officer Muir in cross-examination. 3. Officer Muir was, however, asked about his interjection in the record of interview: "Q. If you could just assist me with this? The only person responsible for searching Mr Shalhoub to your observation was Constable Dunn, is that correct? A. That's right. Q. Were you observing him? This is back out at Dunmore Place. A. Yes. Q. The whole time? A. Yes, I was standing right next to him, yes. Q. In the interview, going back to that, a very serious allegation was made by Mr Shalhoub. Correct? A. Yes. Q. It was made in the presence not only of yourself but a more senior detective? A. Yes. Q. What I'm putting to you is that if you knew at the time that this had not happened as Mr Shalhoub was suggesting, in the record of interview you would have said, 'That didn't happen, Andrew,' or words to that effect. A. I mentioned before not necessarily. In my capacity in that interview I was to speak when prompted, I didn't know when to speak or what was appropriate. Being a probationary constable with a detective who was running it. Q. Well, you felt sufficiently-- I withdraw that. Whatever you were feeling, you decided to interject into the discussion. Do you agree with that? A. I have spoken after he said that, yes. Q. And all you did was deny that you were the person responsible. A. I responded with, 'That wasn't me, Andrew,' yes. Q. My suggestion to you is if this hadn't happened at all, rather than just worrying about your personal position, you would have said, 'It didn't happen,' or words to that effect. A. Not necessarily." (T428/34-T429/20). 1. Thus, Officer Muir conceded that he was present and saw everything. For him to state, "That wasn't me, Andrew" or, more correctly, "Yeah, that wasn't me, Andrew" bore the appearance of an acknowledgment that the allegations were truthful, or at least had some truth in them, but that Officer Muir did not himself engage in the conduct. When this matter was raised in cross-examination, that his interjection would have been different if Mr Shalhoub's account had been wrong, Officer Muir did not deny that but stated "not necessarily" repeatedly. His answers did not remove my concerns that Officer Dunn had engaged in inappropriate conduct. 2. Was Mr Shalhoub's account unreliable because he was affected by alcohol? Mr Shalhoub had consumed some alcohol that night, although there was no direct evidence that it was other than a moderate amount. His appearance and answers, including the speed with which he delivered them, a little over three hours later during the police interview did not indicate any degree of intoxication at that time. The State elicited evidence from Mr Shalhoub of some unusual conduct of his at the gathering, which may have been due to alcohol, his relative youth, his impulsive nature, or a combination. Mr Shalhoub was on P plates (T101/41) so the circumstance that Mr Shalhoub did not drive his own car home from the gathering is of no assistance on this question. 3. Officer Casey was ambivalent about whether Mr Shalhoub was intoxicated (T444/15-22) and Officer Hurney's evidence of intoxication was unconvincing, relying upon him "looking groggy as he eyes were sort of half closing" (T295/33) when his observations must have occurred immediately after forceful hammer strikes by Officer Dunn to Mr Shalhoub's head. His evidence must be viewed in a context where Mr Shalhoub also alleged that, for a time, he was unconscious, an allegation for which some support may be found in Officer Casey's evidence of checking on Mr Shalhoub after he was handcuffed: "Q. At the time you touched his face, his eyes were shut. A. Yep. Q. Did you form a view as to whether - when you went to touch him on the face, whether he was conscious or not? A. I didn't form any sort of view at that point." (T479/25-30). Officer Casey also gave evidence that she saw Mr Shalhoub, "He wasn't moving and I could see blood coming out of his mouth" (T442/18-19). She asked Officer Hurney, who was standing up near Mr Shalhoub, "Is he all right?" (T442/30). She said Mr Shalhoub "wasn't moving and he had his eyes shut" (T442/31). While evidence of Mr Shalhoub lacking full consciousness may weaken Officer Hurney's evidence of intoxication, if Mr Shalhoub was unconscious, or semi-conscious for a period, that itself may adversely affect Mr Shalhoub's recollection of events. 1. Officer Dunn said he "formed an opinion then that, you know, he was under the influence of alcohol" (T337/48-T338/4), relying upon smelling alcohol on Mr Shalhoub's breath. Mr Shalhoub denied that he was intoxicated or that he had had much to drink. 2. No issue about intoxication was raised at Mr Shalhoub's subsequent police interview. 3. While I was not persuaded that Mr Shalhoub was intoxicated, I accept that his recollection may have been, to some degree, adversely affected by alcohol and by the impact of the blows to his head. I note that s 201(2)(c) of LEPRA governs the "power to detain an intoxicated person under Part 16", but this power was not pleaded, nor relied upon in submissions, nor did any police officer give evidence that Mr Shalhoub's intoxication was the basis or a basis for his arrest. (c) Analysis of the search 1. Mr Shalhoub's evidence of complaining about the search and being touched "in his private area" is supported by Mustapha Neffati. It also finds some support from Officer Dunn, removing his belt, perhaps unbuttoning the top of his jeans, searching his groin on both sides and accepting that he "had him down around his groin". Further, Officer Muir's interjection in the CD of the interview asserting "Yeah, that wasn't me, Andrew", rather than "That didn't happen" or the like, is also of some support for Mr Shalhoub's account, as is Officer Muir's evidence of Officer Dunn "scrunching" Mr Shalhoub's pockets. 2. On the other hand, Officer Dunn and Officer Muir both denied Mr Shalhoub's account, and the particular allegation of Mr Shalhoub's pants being pulled down. The allegation that Mr Shalhoub's penis was then grabbed was denied and was not in cross-examination directly put to Officer Dunn or to Officer Muir. I must take into account the seriousness of the allegation and, in accordance with the Briginshaw test, the level of probative evidence needed to comfortably persuade me of a serious matter. I also take into account that, although it was dark, there were a number of other police present which might impact on the likelihood of the alleged conduct occurring. 3. There was no evidence of a search in respect of either Mustapha Neffati or Wassim Neffati, or of any direction by Officer Love for Officer Dunn to conduct a search, or any explanation of the reasons why a search was reasonably necessary. By this stage, Mr Shalhoub had been handcuffed for perhaps 30 minutes (T75/10) with his hands behind his back. 4. In all these circumstances, I accept that Mr Shalhoub was searched about his groin area, that his belt was removed and the top button of his jeans was undone, that Officer Dunn squeezed his penis whilst "scrunching his pockets" and, on balance, also grabbed his penis, when covered by his underpants, when clumsily further investigating his groin area during the search. I am not satisfied that Officer Dunn pulled Mr Shalhoub's underpants down, or grabbed or squeezed his naked penis, or that Officer Dunn's actions were done other than in the belief of carrying out a thorough search. Whilst the search would constitute an assault unless done lawfully, which I have already found did not occur, nevertheless, I do not find that Officer Dunn intentionally sexually assaulted Mr Shalhoub. I am not satisfied that the manner of the search that was conducted involved only such force as was reasonably necessary. H. Was the period of detention justified? 1. The police VKG records establish that Mr Shalhoub and the other occupants of the Lexus were stopped and removed from the car at about 2.20am. 2. After handcuffing Mustapha Neffati, Officer Casey went to check on the welfare of the other police officers. She said, "That's when I turned around and saw the person that they [Officers Hurney, Dunn and Muir] had taken out of the car [Mr Shalhoub] on the ground" (T442/17). She said she touched the side of Mr Shalhoub's face and had a brief conversation with him. Officer Casey departed to check on other officers. She subsequently returned and said the statutorily required words concerning stalking to Mr Shalhoub. The police documents show that Mr Shalhoub was arrested at David Rd, Barden Ridge at 2.40am (Ex A, p 63) or 2.50am (Ex A, p 133) in the belief that he was "stalking/intimidating an off duty police officer" (T448/15-17, Ex A, p 63). After investigating the contents of Wassim Neffati's mobile phone, the police concluded that Mustapha Neffati and Mr Shalhoub were not in the car at the time that the car appeared to be following the off-duty female police officer (T451/7-35). Mustapha Neffati was released but Inspector York decided that Mr Shalhoub (along with Wassim Neffati) should be taken to Bankstown Police Station (T452/13-19), perhaps in connection with an investigation of "resist arrest" (Ex A, pp 94.1, 136.4, T457/40-T458/2, T458/20). At 3.05am (Ex A, pp 129, 133), Mr Shalhoub was placed in a police van and conveyed to Bankstown Police Station. He arrived at 3.25am (Ex A, p 129), took part in a police interview from 5.46am to 6.08am and was released without charge at 7.40am. 3. An unreasonable period of detention is only of significance on the question of liability if the police officers were entitled to arrest and detain Mr Shalhoub, which I have not found. Mr Shalhoub was entitled to resist, forcefully, the unlawful arrest and assaults. But if the arrest for stalking was lawful, contrary to my several findings, then Mr Shalhoub was not then entitled to resist arrest. 4. Mr Shalhoub said he did as he was asked, he put his hands outside the car (as Officer Casey directed) and the officers then pulled him from the car onto the ground without saying anything, and thereafter he was protecting himself with his hands and arms as he lay face down on the ground. 5. The evidence of resistance in the car was limited. Officer Muir said Mr Shalhoub was "shuffling" but "he didn't make a move to get out of the car" (T372/5) and then he "grabbed hold of the seatbelt and pulled away" (T372/9) whereupon Officers Dunn, Muir and Hurney pulled him from the car. Officer Dunn said Mr Shalhoub started swearing and refused to get out of the car (T336/32), then he got Mr Shalhoub out of the car, and "he was just standing outside of the car at this point" (T338/11) and when Officer Dunn asked him "Come over here" (T338/10), while having a hold of him, Mr Shalhoub refused. Officer Dunn accepted that he recalled that Mr Shalhoub's hands were initially on the seatbelt. Officer Hurney arrived near to Mr Shalhoub in the car as he was pulled from the vehicle (T288/33) and he said that they all fell to the ground. 6. Thus, the resistance whilst in the car is, on Officer Muir's account, grabbing the seatbelt, and on Officer Dunn's account, swearing and refusing to get out, occurring at about 2.20am. 7. The other item of alleged resistance occurred whilst Mr Shalhoub was face down on the ground. There is no suggestion that he was aggressive towards the police, and the evidence (principally of Officer Hurney) of Mr Shalhoub's alleged failure to present his arms for handcuffing and his verbal abuse must be viewed in a context where he was brought to ground by police and was being hit around the head and face by Officer Dunn and elsewhere by Officer Hurney. This occurred, more than 40 minutes before Mr Shalhoub was taken to Bankstown Police Station, during which period there was no resistance, other than, according to Mr Shalhoub, his verbal objections to the manner of search (about which "resistance" no police officers gave evidence). 8. If the arrest was otherwise lawful, then suspicion of resistance on reasonable grounds would be sufficient to satisfy s 99(1)(a) of LEPRA. But there is no evidence of the elements of any officer arresting or continuing to detain Mr Shalhoub for resisting arrest. It is not enough that some officers may have held a belief of Mr Shalhoub resisting. There was no evidence of Mr Shalhoub being told prior to arriving at Bankstown Police Station of anything about "resist arrest", let alone that his continued detention was for this offence. There was also no evidence of any officer being satisfied that a reason (and which) in s 99(1)(b) rendered continued confinement reasonably necessary. By 3.05pm, when the suspected offence of stalking had evaporated, there was no indication of any resistance by Mr Shalhoub, and no suggestion that a repetition of resistance was the reason why arrest was seen as reasonably necessary. 9. Officer Casey gave evidence that she did not make the decision that Mr Shalhoub should be taken back to the police station. That decision was made by Officer York. By that stage, the police were aware that Mr Shalhoub had not been in the Lexus as it travelled along Davies Rd. 10. Officer Love gave evidence that Officer York "decided to take them back and work it out back at the station" (T494/21). 11. Thus, the decision to continue the imprisonment of Mr Shalhoub appeared to be at the direction of Officer York. This might satisfy the first sentence of s 99(2) of LEPRA, but it raises questions about the second. Officer York did not give evidence but Mr Shalhoub did not submit that any adverse inference should be drawn (see T488/38-42, T489/30-36, T498/24-32). However, the basis for the continuing arrest was not explained. The concession by Mr Shalhoub of no adverse inference from Officer York's absence does not supply the evidence from Officer York or some other officer or by some other means that the elements of s 99(1) or (2) were satisfied. As there was no evidence on the subject, there was no basis to conclude that any police officer at 3.05am suspected on reasonable grounds that Mr Shalhoub had committed an offence, or that arrest was reasonably necessary, or that continuing detention under s 99(4) of LEPRA was authorised. That Mr Shalhoub was taken to the police station for "resist arrest" is insufficient to prove these matters. 12. Accordingly, even if (contrary to my findings) Mr Shalhoub was lawfully arrested for stalking, there was no basis to continue his arrest after 3.05am, by which time the police were aware that he was not in the Lexus at the time of the suspected following of the off-duty police officer. I. Damages (a) Events, injuries and claimed damages 1. The assessment of Mr Shalhoub's damages is informed by the following circumstances. As a passenger he was forcibly removed from Wassim Neffati's car, brought to the ground, grabbed by Officer Muir and forcibly struck by Officers Hurney and Dunn, with repeated hammer strikes to his arms by Officer Hurney (T290/20; Exhibit A p 83) and shoulder area by Officer Dunn (T339/21), knee strikes to his back by Officer Hurney (T290/7; Exhibit A, p 83) and hammer strikes a few times on the head and facial area by Officer Dunn, as a result of which Mr Shalhoub became groggy or wholly or partially lost consciousness, and was handcuffed. 2. Subsequently, perhaps as much as 30 minutes later, after he had sat without apparent complaint, Mr Shalhoub had his belt and perhaps shoes and socks removed in the course of a search, had his groin searched and his penis grabbed or squeezed as part of that search, was formally informed of his arrest for stalking a police officer, found to be innocent of that offence but still kept under arrest. He was then taken to the police station and, more than two hours after arrival, interviewed in connection with resist arrest. After the interview, some 5 hours and 20 minutes after he first was removed from the Lexus, Mr Shalhoub was released. 3. Mr Shalhoub's injuries included a bleeding cut to the mouth (T442/18-22, T444/5, T467/49-468/7, T479/36), bruising around his eyes (T152/9, Ex A, pp 163-165) and bruising on his left side (T147/1-17, T154/34-47). 4. On 9 June 2015 Dr Megan Lovesey examined Mr Shalhoub and recorded (Ex B): "currently has a headache, intermittent Worsened by lateral neck movements throbbing over occiput… sore face, sore left knee, sore back", "two small lumps over left and right occiput", pain when moving neck to the left and small lacerations and abrasions. Nine days later, on 18 June 2015 Dr Victor Wei examined Mr Shalhoub and recorded: "Ongoing headaches with dizziness … [patient] feeling anxious at times, [especially] after encountering police severe anxiety attacks when he sees police affecting his function". 1. Dr Phillip Brown, psychiatrist, provided a report dated 10 August 2015 where Mr Shalhoub identified his injuries as the following (Ex A, p 36): "- Both of his eyes were swollen and he had grazes on the left lateral side of his face. - His back was bruised, across his right shoulder and at his right and left loins… - He also had pain in his neck. He had pain in his left knee and was unable to walk on his left leg. - He had large lumps at the back of his head from the assault…there were three lumps.'" Dr Brown diagnosed mild specific phobia of Adverse Interaction with Police (Ex A, p 248). 1. The specific phobia and other conclusions by the medical experts were not challenged. 2. The following schedule is derived from the schedules of damages provided by the parties: Plaintiff Defendant ($) ($) Compensatory damages for wrongful arrest/false imprisonment 25,000 1,000-5,000 Compensatory damages for assault and battery 15,000 5,000-10,000 Interest on general damages at 2% 1,500 Aggravated damages 25,000 0-5,000 Exemplary damages 25,000 0-5,000 Total 91,500 6,000-25,000 (b) The Civil Liability Act 2002 1. The defence pleaded provisions of Part 7 of the Civil Liability Act 2002 ("CLA"), referring particularly to ss 51 to 54 inclusive. These sections, in general terms, provide that Pt 7 applies to personal injury damages (s 51); that there is no civil liability for self-defence against unlawful conduct (s 52), even if the conduct constituting self-defence was not a reasonable response (unless the circumstances were exceptional or it was otherwise harsh and unjust) (s 53); and that no damages are to be awarded if it occurred at the time of or following a serious offence by the plaintiff unless the defendant's conduct was criminal (s 54). The defence also referred to s 3B(1)(a)(ii) of the CLA which provides for the application of Pt 7 except in cases of intentional injury and sexual misconduct. 2. There was no basis for any assertion of self-defence by the police officers. No reference to the Pt 7 provisions was made by the State in opening or closing submissions, orally or in writing (although the pleading of it was mentioned in passing in supplementary submissions dated 24 November 2017). The State did assert that Mr Shalhoub resisted arrest, although since the arrest was not lawful, the foundation for the assertion is lacking. (i) Unlawful imprisonment damages 1. A question arose after closing submissions as to whether the CLA has any impact on damages. Part 2 of the CLA applies to "personal injury damages" (s 11A CLA) and precludes any award for damages for non-economic loss unless "the severity of the non-economic loss is at least 15% of a most extreme case" (s 16 CLA). Damages for non-economic loss are reduced where the severity is less than 33% of a most extreme case (s 16(3)) and interest is not payable on non-economic loss (s 18). Mr Shalhoub's damages are "non-economic loss" but are they "personal injury damages"? 2. "Personal injury damages" relevantly means "damages that relate to the death of or injury to a person" and "injury" means "personal injury" which relevantly "includes…impairment of a person's physical or mental condition" (ss 5 and 11, CLA). While damages for assault and battery are likely "personal injury damages", the same cannot be so readily said of damages for wrongful arrest and unlawful imprisonment. 3. In a claim for damages for false imprisonment (or perhaps sometimes better expressed as "unlawful detention", see State of NSW v Le [2017] NSWCA 290 at [3]), the Court of Appeal expressly raised, but did not ultimately decide, whether the damages were "personal injury damages" and thus would be subject to the limitation in the CLA (see Le at [24]-[26]). Damages for the tort of false imprisonment involve compensation for deprivation of liberty and for "loss of dignity and reputation": Goldie v Commonwealth of Australia (No 2) [2004] FCA 156 at [4], damages loosely analogous to damages for defamation. 4. Are damages for deprivation of liberty and loss of dignity and reputation to be regarded as "personal injury damages"? They seem not of themselves to involve "impairment of a person's physical or mental condition", nor (noting the definition of "personal injury" is inclusive only) would they come within the ordinary meaning of the term "personal injury". But Goldie at [14] refers to "mental suffering" among the types of damages compensable in a false imprisonment claim, and mental suffering is not so readily distinguished from "personal injury". Perhaps a part only, some but not all, of the damage compensable in a wrongful imprisonment claim could be personal injury damages within the meaning of the CLA. 5. The matter was dealt with in New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57, a decision not referred to in Le, where a majority (French CJ and Hayne J at [32]-[34], Kiefel J at [45], Crennan and Bell JJ not deciding at [39]) dealt with the nature of false imprisonment damages, as follows: "[32] The respondent sued the appellant for trespass to the person (alleging several instances of battery) and false imprisonment. He alleged that the batteries he had suffered had caused him personal injury, but it was far from clear that he alleged that the wrongful deprivation of his liberty had itself impaired his physical or his mental condition. [33] Often but not always, a battery will cause personal injury to the victim. False imprisonment is often accompanied by an assault and battery and the accompanying battery may (but need not) cause personal injury. There may be cases where an act of false imprisonment itself causes psychiatric, even physical injury. [34] Even assuming, however, that the respondent did allege that the act of wrongful imprisonment (as distinct from the batteries he alleged he had suffered) had caused him some personal injury, the claim for false imprisonment was necessarily a claim for damages on account of the deprivation of liberty with any accompanying loss of dignity and harm to reputation. The deprivation of liberty (loss of dignity and harm to reputation) is not an 'impairment of a person's physical or mental condition' or otherwise a form of 'injury' within s 11 of the Liability Act. The claim for false imprisonment, at least to the extent to which it sought damages for deprivation of liberty, is not a 'claim for personal injury damages'." 1. The passage has direct application to Mr Shalhoub's claim. Battery and false imprisonment are alleged, the batteries allegedly caused personal injury, and there is no clear allegation that the deprivation of liberty alone impaired Mr Shalhoub's physical or mental condition. In these circumstances, the claim for false imprisonment is not a "claim for personal injury damages". No authority to the contrary was identified by the State. 2. As the damages for wrongful imprisonment are not "personal injury damages" (see s 11), the provisions of Pt 2 of the CLA do not apply so as to reduce Mr Shalhoub's claim for damages for wrongful imprisonment. (ii) Section 3B(1)(a) of the Civil Liability Act 2002 1. Conversely, the damages for battery are clearly personal injury damages and are subject to the limiting provisions of Pt 2 of the CLA, unless excluded by s 3B(1)(a) of the CLA. 2. Section 3B(1)(a) of the CLA provides: "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 [save for some presently irrelevant exceptions]". 1. Accordingly, the CLA is excluded from claims involving "an intentional act" done "with intent to cause injury" or an intentional act "that is sexual assault or other sexual misconduct". (iii) Intentional act 1. There is no question that the acts of battery on Mr Shalhoub were intentional acts. The police intentionally used force upon him including by hammer strikes, some to the head by Officer Dunn, and Officer Dunn intentionally searched Mr Shalhoub's groin area. (iv) Done with the intent to cause injury 1. The purpose of the hammer strikes by the police was to compel compliance. That necessarily involved substantial force causing pain. The bruises on Mr Shalhoub, including his head, evidence the force of those blows. They were forceful "hammer strikes" and "knee strikes". Although I do not find that they were done with the intent to cause long-lasting injury or disability, the applicability of s 3B(1)(a) does not require this. 2. I would infer that the intent of the forceful blows was to cause significant pain and weaken or impair Mr Shalhoub's ability to resist so that he would comply with police demands. In my view, that evidences intent to cause injury. No level of seriousness of the injury is identified in the CLA, but injury includes an "impairment of a person's physical…condition". This would include numbing and knee strikes and hammer strikes to Mr Shalhoub, causing pain and weakness so as to impair his ability to resist. 3. Bruising is a clear impairment of a person's physical condition as it involves damage to the tissue and impairs function. It was a necessary consequence of the blows to which Mr Shalhoub was subjected. The specific intent of the police blows was not to cause bruising but pain and a physical inability to resist, but the police were at least unconcerned of the likelihood of bruising for it was an inevitable result. This could be described as "recklessness", reckless as to whether injury in the form of bruising would result. 4. The question of whether recklessness is a sufficient intent under s 3B(1)(a) was considered in Croucher v Cachia [2016] NSWCA 132. Leeming JA at [117]-[118] noted that the matter was not clear, referring to a view by Hoeben CJ in CL in Hayer v Kam [2014] NSWSC 126 that "subject to authority", recklessness did not satisfy s 3B(1)(a). Leeming JA also referred to a contrary view, and did not express a conclusion. 5. The precise ambit of "intent to injure" is not clear. In some contexts, including in the criminal sphere, intent has commonly included the concept of recklessness. It may be thought that if s 3B(1)(a) was to adopt a narrower concept of intent so as to exclude recklessness, it could easily have been expressed in the legislation. It might be thought that the limitation of common law rights in the absence of an intent to injure should not be enlarged beyond what is required by clear words or necessary intendment (Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [36]; [2003] HCA 33, Konneh v State of New South Wales (No.3) [2013] NSWSC 1424 [27]-[32]). If that is so, any ambiguity about whether intent to injure includes recklessness should be resolved in favour of the broader meaning of intent. 6. In a similar way, "calculated" has been held to include those things which were "naturally to be expected" to result from the conduct (see Bunyan v Jordan (1937) 57 CLR 1 at 11, Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at 487; [2007] NSWCA 377 at [76]-[80]. However, the application of these phrases might not be directly applicable to an "intent to cause injury", see Dean v Phung [2012] NSWCA 223 at [27]-[28] referring to State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 at [16]. 7. Accordingly, I find in Officers Hurney and Dunn the existence of an intent to cause significant pain and numbness so as to weaken Mr Shalhoub's capacity to resist. This is an impairment of his physical condition and thus an injury under the CLA. In addition, the bruising which was naturally to be expected from the actions of the police officers would also satisfy the statutory definition. As I find that there was an intent to cause injury in the physical force applied to Mr Shalhoub, it follows that s 3B(1)(a) operates to exclude the provisions in Pt 2 limiting damages in respect of the knee strikes and hammer strikes of the police officers. These were the principal components of the physical violence against Mr Shalhoub. (v) Sexual misconduct 1. Mr Shalhoub did not submit that the conduct of Officer Dunn in relation to the search of Mr Shalhoub's groin was done with intent to cause injury. Thus, even though it was an intentional act, this component of s 3B(1)(a) is not satisfied. The exclusion of the CLA in s 3B(1)(a) is not enlivened unless the search constituted sexual misconduct. 2. The conduct of Officer Dunn in conducting the search was an unlawful assault, and therefore was unacceptable and improper so as to constitute misconduct. But is it sexual? It is connected with a sexual organ, but Officer Dunn's conduct did not involve any sexual desire or gratification. Whether sexual desire or gratification is a requirement for sexual misconduct generally might be doubted. Sexual misconduct seems to depend on the nature of the conduct, rather than the motivations or feelings of the offender. 3. The act of Officer Dunn was also intentional: I have found that the search of the groin area by Officer Dunn was an "intentional act", although not intentional sexual misconduct. Can conduct be an intentional act amounting to sexual misconduct, without being intentional sexual misconduct? The act is intended, even if it was not intended to be sexual in the conventional sense. 4. An ambiguity about whether conduct constitutes sexual misconduct might ordinarily be resolved by a finding in the negative. But in this case, the finding is to deny a person a common law right to damages. The alternative finding enlivens s 3B(1)(a) but does not operate to convict the offender. For this reason, I do not think that sexual misconduct in s 3B(1)(a) should be given a narrow construction, and I find that under this provision, if not in other contexts, the conduct of Officer Dunn in grabbing Mr Shalhoub's penis in the course of an unlawful search constituted sexual misconduct under s 3B(1)(a). 5. For this reason, I find that s 3B(1)(a) of the CLA does not operate to limit the damages of Mr Shalhoub arising from the unlawful search. (c) Damages for unlawful arrest and imprisonment 1. The tort of false imprisonment is a tort of strict liability focussed on the "vindication of liberty and reparation to the victim" rather than any wrongdoing on the part of the defendant (Smith at [153]). Damages for the tort compensate not only for the loss of liberty, but also for the loss of dignity and reputation (Goldie at [14], J Fleming, The Law of Torts 8th ed, LBC (1992) at 29, Smith at [154]). Thus, damages are assessed by reference to the duration of the deprivation of liberty, and for hurt or injury to feelings such as by the "injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment" (Trindade and Cane, The Law of Torts in Australia, 3rd Edition, OUP (1999) at 302, Goldie at [14], Smith at [154]). 2. There is not "some kind of applicable daily rate". A substantial proportion of the ultimate award is for "the initial shock of being arrested" (Ruddock & Ors v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262, Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 at 515). An "interference with personal liberty even for a short period is not a trivial wrong" (Watson v Marshall (1971) 124 CLR 621 at 632; [1971] HCA 33, Smith at [157]). 3. The plaintiff referred to Zaravinos, where an amount of $25,000 was awarded which included an aggravated and exemplary component of damages. In Delly, $25,000 compensatory damages was awarded. In Moses v State of NSW (No 3) [2010] NSWDC 243, an amount of $35,000 for general damages was awarded for false imprisonment which involved an eight to nine hour detention. 4. In Zaravinos, three hours and 23 minutes of detention was found to be "unnecessary, highhanded, humiliating and unnecessarily long" (at [49]). The evidence in that case of humiliation and distress might have been more cogent than here, but there are other aggravating factors in this case which were stronger than in Zaravinos. Here the unlawfulness of the imprisonment was separately established on four different bases: Officer Love had no suspicion on reasonable grounds so that s 99(1)(a) and s 99(2) of LEPRA were not satisfied; Officer Love was not satisfied of the need to arrest so as to prevent a continuation of the offence (s 99(1)(b) and s 99(2)); the required statutory information was not given as soon as reasonably practicable, contrary to ss 201 and 202 of LEPRA, and the continued detention after about 3am when Mr Shalhoub was known to have not been involved in the suspected stalking was without any semblance of compliance with s 99. In addition, Mr Shalhoub was arrested in the middle of the night in the company of friends, by multiple police, was never offered any apology (see MacDougal v Mitchell [2015] NSWCA 389 at [33]-[34]) and was required to conduct a lengthy contested trial to establish his entitlement (where the State submitted that there were no aggravating factors and that Mr Shalhoub was dealt with appropriately for resist arrest) (cf Cheng v Farjudi [2016] NSWCA 316 at [110]). These are all aggravating factors. 5. In my view, the wrongful imprisonment of Mr Shalhoub in 2015, with the aggravating features mentioned, warrants at least as great an award of damages for unlawful imprisonment as any of the three cases mentioned. (d) Damages for assault and battery 1. Mr Shalhoub submits that he is entitled to a separate award of damages for: "each of the established assaults although in respect of the assaults it is also being held that a series of assaults as part of an overall process can result in a single global award of general damages". 1. The physical harm necessitated brief attendances on a general practitioner and resolved completely some months later by 2 September 2015. The ongoing consequence of the police conduct is a "fear of police which itself contributes to a reduced social life". As this is a consequence of the physical harm and s 3B(1)(a) is satisfied, and also because s 31 of the CLA applies only to pure mental harm from negligence, the limitations on damages imposed by s 31 are inapplicable. 2. I regard the amount of $15,000, identified by Mr Shalhoub as an appropriate amount for compensatory damages (excluding aggravated damages) for the assaults of forcible removal from the car, being held and beaten by three police officers, including with repeated blows to the head, and the unjustified search of his private area, as a very modest amount for the assaults. I would propose to award it in full without regard to aggravating factors. (e) Aggravated and exemplary damages (i) Relevant principles 1. Aggravated damages are compensatory, assessed from the point of view of the plaintiff, whereas exemplary damages are of a punitive and deterrent nature and focus on the conduct of the defendant (Abed at [230], New South Wales v Zreika [2012] NSWCA 37 at [60]-[64]). 2. Injury to Mr Shalhoub's feelings, caused by insult, humiliation and the like are a component of aggravated damages, reflecting the circumstance where the manner of the wrongful act aggravated the harm done (see Lamb v Cotogno (1987) 164 CLR 1 at 8 ; [1987] HCA 47, Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40, Abed at [213]). 3. Damages for false imprisonment are to reflect the "disgrace and humiliation" of an arrest. Yet this is also a factor of aggravation. Care must be taken not to double count an item of damage where the various categories of damages are not self-contained (see New South Wales v Radford (2010) 79 NSWLR 327 at [97]; [2010] NSWCA 276, Abed at [234]). Compensatory damages, including aggravated damages, must be awarded before considering whether, and what, exemplary damages should be awarded. 4. Exemplary damages go beyond compensation and are a punishment to deter similar future conduct, reflecting the Court's detestation (see Lamb at 8, Abed at [232]). An award of exemplary damages generally requires "conscious wrongdoing in contumelious disregard of another's rights" (Gray v Motor Accidents Commission (Gray v MAC) (1998) 196 CLR 1 at [14]; [1998] HCA 70, Abed at [232], although, "[c]onduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing" (State of New South v Riley (2003) 57 NSWLR 496 at [138]; [2003] NSWCA 208, Abed at [233]). (ii) Aggravated damages 1. I have identified above aggravating factors in respect of the unlawful imprisonment. 2. Some of those matters also aggravated the assault. Mr Shalhoub was in the company of friends. He was assaulted by three police officers at once, at night. He was assaulted when in handcuffs during the course of the search. There has been no acknowledgment of any wrong by the police. 3. I also take into account Mr Shalhoub's head injuries and recovery, and his continuing anxiety when viewing police officers. 4. In my view, Mr Shalhoub should be awarded $35,000 for the wrongful arrest, including aggravated damages, and $30,000 for the assault and battery, including aggravated damages. 5. These sums reflect not only the events of the assaults and imprisonment, including the aggravating factors I have mentioned, but also the time for recovery of Mr Shalhoub's injuries. (iii) Exemplary damages 1. The State submits that there are only two possible areas that the Court would "show the Court's disapprobation of the contumelious disregard of the plaintiff's rights": the police conduct comprising Officer Dunn's hammer strikes to Mr Shalhoub's head, and Officer Dunn's search of Mr Shalhoub. The State further submits that those matters are de minimis. 2. The plaintiff submits that Mr Shalhoub's treatment was "unnecessarily high handed" in the decision, made apparently by Officer York, to continue his detention and be taken to Bankstown Police Station in circumstances where the reasons for it are unexplained and could not be justified. The same submission can be said about the lack of any real explanation by the State as to how the initial arrest was for reasons of preventing continued offences. 3. The failure of the police to apologise is relevant also to exemplary damages (see MacDougal at [33]-[34]). So also are the denials that required Mr Shalhoub to engage in a lengthy trial to vindicate his rights (cf Cheng at [110]). I am satisfied that an award for exemplary damages would not involve "double dipping" (cf MacDougal at [35]). 4. The hammer strikes to the head of Mr Shalhoub while he lay face down on the ground with three police officers restraining him involved a contumelious disregard of Mr Shalhoub's rights, and the repeated failures to satisfy the LEPRA requirements involving several officers, including in particular the continued imprisonment after 3.05am, go beyond "ordinary human fallibility" (Smith at [169]). I find that the strikes to his head, the unjustified search of his groin, the decision to retain him in custody without reason once the stalking allegation was found to have no merit and the several contraventions of LEPRA in the forceful arrest to each be contumelious and high-handed and warrant an order of this Court manifesting its disapproval. The failure of the State to regret or even recognise the inappropriateness of the conduct strengthens the basis for an award of exemplary damages. 5. In my view, an amount of $15,000 for exemplary damages is appropriate. (f) Interest and costs 1. Interest was claimed in the amended statement of claim. An imperfect basis for the calculation of interest on damages for non-economic loss may be the difference between a return on a secure investment and the inflation rate (cf MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 666; [1991] HCA 3 at [13]). There was no evidence of these rates, but I think the Court could take judicial notice of the circumstance that both rates are low. I would allow an interest rate of 1% per annum on the whole award. 2. Thus, Mr Shalhoub is awarded the following in damages: Amount awarded ($) Compensatory damages for wrongful arrest/false imprisonment, including aggravated damages 35,000 Compensatory damages for assault and battery, including aggravated damages 30,000 Exemplary damages 15,000 Interest 2,018.63 Total 82,018.63 1. Costs should follow the event. J. Orders 1. The orders of the Court are: 1. Judgment for the plaintiff in the sum of $82,018.63. 2. Defendant to pay the plaintiff's costs. ********** 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: 15 December 2017