Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Thomlinson [2018] NSWCA 151 Hearing dates: 12, 13 September 2017 Date of orders: 12 July 2018 Decision date: 12 July 2018 Before: Meagher JA at [1]; Leeming JA at [96]; Payne JA at [97] Decision: 1. Appeal allowed. 2. Set aside the verdict and judgment entered on 16 December 2016 and the order for interest on that judgment made on 20 January 2017. 3. The respondent pay the appellant's costs of the appeal. 4. The respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal. 5. Set aside the order for costs of the proceedings at first instance made on 16 December 2016. 6. The respondent repay to the appellant the sum of $100,000 together with interest to the date of this order, and thereafter in accordance with Civil Procedure Act 2005 (NSW), s 101. 7. Each of the parties file and serve within fourteen days written submissions (not to exceed six pages in total) as to the orders to be made in relation to a new trial or re-trial, and the payment of the costs of the proceedings at first instance, with a view to those matters being determined on the papers. Catchwords: TORTS – assault and false imprisonment – where respondent forcibly removed from licensed premises by police – whether respondent's licence to remain on the premises could be revoked at any time and without cause, entitling the occupier to remove him using reasonable force – whether premises a "common inn" – whether licence revoked by security guards acting on behalf of hotelier – whether security guards requested police to assist in respondent's removal from premises LICENSING – where Liquor Act 2007 (NSW), s 77(2)(a) provides that an authorised person may turn out a person from licensed premises where that person is "at the time intoxicated, violent, quarrelsome or disorderly" – whether authorised person, here a police officer, must have a belief as to specific characteristic relied on to justify exercise of power – whether respondent was "intoxicated" or "quarrelsome" within meaning of those terms Legislation Cited: Civil Procedure Act 2005 (NSW), s 101 Criminal Procedure Act 1986 (NSW), s 183 Evidence Act 1995 (NSW), ss 69, 136 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 23, 24, 230 Licensing Act 1872 (35 & 36 Vic c 94), s 18 Liquor Act 1912 (NSW), s 68 Liquor Act 1982 (NSW), s 23(3A) Liquor Act 2007 (NSW), ss 73, 77, 160 Liquor Legislation Amendment Act 2010 (NSW) Liquor Licensing Act 1988 (WA), s 108 Police Act 1990 (NSW), s 170 Refreshment Houses and Wine Licences Act, 1860 (23 Vic c 27), s 41 Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), rr 51.18(2), 51.54 Cases Cited: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 Adeels Palace Limited v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3 Brierley v Ellis [2014] NSWCA 230 Chen v State of New South Wales [2014] NSWCA 41 Clyne v Law Society (Court of Appeal (NSW), 4 September 1987, unrep) Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; [1937] HCA 17 Dallimore v Tutton (1898) 78 LT 469 Day v The Ocean Beach Hotel Shell Harbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 Ex parte Coulson; Re Jones (1947) 48 SR (NSW) 178 Fell v Knight (1841) 8 M & W 269; 151 ER 1039 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445 Jones v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Liversidge v Sir John Anderson [1942] AC 206 Lockwood v The Commonwealth (1954) 90 CLR 177; [1954] HCA 31 Lord Advocate v Blantyre (1879) 4 App Cas 770 Luton v Bigg (1691) Skin 291; 90 ER 131 Owens v Normanton Liquor Accord [2013] 1 Qd R 168; [2012] QSC 118 Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108 Payne v Parker [1976] 1 NSWLR 191 Prior v Mole [2017] HCA 10; 91 ALJR 441 R v Howell [1982] QB 416 R v Rymer (1877) 2 QBD 136 Reg v Armagh Justices [1897] 2 IR 57 Rex v Higgins [1948] 1 KB 165 Rex v Ivens (1835) 7 Carr & P 213; 173 ER 94 Romito v Williams (Supreme Court of Western Australia, 4 December 1992, unrep) Sealey v Tandy [1902] 1 KB 296 TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104 Thompson v Lacy (1820) 3 B & A 283; 106 ER 667 Wightman v Wheelton (1857) 23 Beav 397; 53 ER 156 Texts Cited: Phipson on the Law of Evidence (9th ed, Sweet & Maxwell Ltd, 1952) Category: Principal judgment Parties: State of New South Wales (Appellant) Charles Henry Thomlinson (Respondent) Representation: Counsel: JE Marshall SC and ND Oreb (Appellant) M Cashion SC and P English (Respondent) Solicitors: Makinson d'Apice (Appellant) Jeffery & Jeffery (Respondent) File Number(s): 2016/386053 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2016] NSWDC 369 Date of Decision: 16 December 2016 Before: Hatzistergos DCJ File Number(s): 2014/94638 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] Police officers forcibly removed Mr Thomlinson from the Shore Club in Manly. He was handcuffed, arrested, and driven to a bus stop in a caged vehicle. A criminal proceeding for the offence of failing to leave premises when required (an offence under Liquor Act 2007, s 77(4)) was brought against him, and withdrawn. He brought a civil proceeding in the District Court against New South Wales (the State) for assault, false imprisonment, and malicious prosecution. In the civil proceeding, Mr Thomlinson alleged that he was grabbed and held by two officers and then forcibly escorted down a flight of stairs to the ground floor (the First Assault); that near the entrance to the Club he was pushed to the ground before one officer jumped on his back and handcuffed him (the Second Assault); that he was searched (the Third Assault); and that he was pushed into and pulled from the caged vehicle (the Fourth Assault). The false imprisonment was said to commence at the First Assault and conclude at his release from the vehicle. In answer to the First Assault, the State argued that the officers were lawfully assisting the occupier of the Club to remove Mr Thomlinson, whose licence to remain had been revoked; and also exercising the power conferred on them as authorised persons by Liquor Act 2007 (NSW), s 77(2)(a) to turn out a person who is "intoxicated, violent, quarrelsome or disorderly". In answer to the Second Assault, the State argued that as he was being escorted down the stairs, Mr Thomlinson struggled and resisted, striking one of the officers on the jaw; that justifying the officers' subsequent conduct in lawfully arresting him for a breach of the peace and for refusing to leave the premises on being required to do so contrary to s 77(4). The Third and Fourth Assaults were said to be justified as part of that lawful arrest. The contents of the police brief, which included CCTV footage and the officers' witness statements, were tendered in Mr Thomlinson's case without any limitation as to their use. Thereafter no police officer was called to give oral evidence in the proceedings. The primary judge (Hatzistergos DCJ) upheld the respondent's claims as to the four assaults and the false imprisonment. The State appealed. The issues in the appeal were: (i) whether Mr Thomlinson's licence to remain on the premises was entitled to be, and was revoked without cause, and whether the officers were lawfully assisting the occupier in ejecting Mr Thomlinson as a trespasser, he having refused to leave having been requested to do so; (ii) whether Mr Thomlinson was "intoxicated" or "quarrelsome" within the meaning of Liquor Act, s 77(2)(a), so as to entitle the officers to remove him from the premises, exercising the power conferred by that section; (iii) whether the primary judge erred in not finding that as Mr Thomlinson was being escorted down the stairs, he struggled, and in the course of doing so struck one of the officers on the jaw, thereby justifying his arrest for a breach of the peace, and for the offence of not leaving the premises having been requested to do so. Held (Meagher JA, Leeming and Payne JJA agreeing), allowing the appeal: In relation to (i): 1. The licensee of the Shore Club had the right to revoke Mr Thomlinson's licence to be on the premises at any time, and without cause. The premises were not, and were not deemed to be, a "common inn", by any express provision of the Liquor Act 2007 (NSW) or by reason of any implication from s 17(2) of that Act: at [39]-[48]. Sealey v Tandy [1902] 1 KB 296; Day v The Ocean Beach Hotel Shell Harbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250, considered. 2. Mr Thomlinson's licence to remain had been terminated by the security guards acting with the hotelier's authority. The police had been requested to assist in his removal from the premises: at [64]. In relation to (ii): 3. The primary judge erred in holding that an authorised person must have a subjective belief as to the existence of the specific characteristic or characteristics relied on as supporting the exercise of the power conferred by s 77(2)(a). The existence of any one of those characteristics is sufficient to support the exercise of the power and any mistake as to the source of the power does not render its exercise invalid: at [65]. Jones v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56; Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3; Lockwood v The Commonwealth (1954) 90 CLR 177; [1954] HCA 31, considered. 4. The definition of "intoxicated" is satisfied if the state of affairs in Liquor Act 2007, s 5(1)(a) exists and viewed objectively is sufficient in the circumstances to induce a belief that it is the result of the consumption of liquor. It is not necessary in addition that the authorised person in fact hold such a reasonable belief. In the face of error on the part of the primary judge, the Court was not in a position to determine these factual questions because they involved issues as to the credibility of witnesses: at [67], [68]. 5. The characteristic of being "quarrelsome" in Liquor Act, s 77(2)(a) describes anti-social behaviour that is argumentative or confrontational, and usually accompanied by some degree of hostility or anger: at [69]-[72]. Romito v Williams (Supreme Court of Western Australia, 4 December 1992, unrep); Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108, considered. 6. Mr Thomlinson's conduct, both before and after he was asked to leave, and before the officers commenced to escort him down the stairs, was "quarrelsome"; and engaged the power conferred by s 77(2)(a): at [73], [74]. In relation to (iii): 7. In assessing whether as he was being escorted down the stairs, Mr Thomlinson struggled and struck an officer, the primary judge erred in the comprehension and evaluation of the evidence, and in particular, in not taking into account the evidence of one of the officers, in unjustifiably treating the absence of a reference to the incident in another witness' account as material, and in attributing significance to "differing accounts" of how the officer was struck which are not apparent in the evidence: at [88]. 8. Again, the Court was not in a position to re-determine this issue because it requires an evaluation of evidence including that of the respondent and the resolution of issues of credit. Accordingly, there must be an order for a re-trial or new trial: at [90]. Judgment MEAGHER JA Introduction 1. In the early hours of 3 December 2011, the respondent (Mr Thomlinson) was forcibly removed by three police officers from licensed premises in Manly known as the Shore Club. In the course of doing so, the officers arrested, handcuffed and searched Mr Thomlinson. He was then driven by two other officers in a "caged" police vehicle from outside the premises and released at a bus stop on Pittwater Road, North Manly. Later criminal proceedings for the offence of "excluded person fail to leave premises when required" were brought against Mr Thomlinson. On the second day of the hearing that charge was withdrawn and dismissed. Mr Thomlinson then brought civil proceedings against the State of New South Wales (the State) for assault, false imprisonment and malicious prosecution. The claims of assault and false imprisonment were upheld, and that of malicious prosecution was dismissed: Charles Henry Thomlinson v The State of New South Wales [2016] NSWDC 369. 2. The primary judge (Hatzistergos DCJ) awarded Mr Thomlinson damages in the sum of $147,796. The State appeals from the findings of liability in relation to each of the four assaults, and the claim of false imprisonment. It does not challenge the award of damages in the event those liability appeals are dismissed. There is no cross appeal by Mr Thomlinson against the dismissal of his claim for malicious prosecution. The grounds of appeal 1. The further amended notice of appeal contains 33 grounds of appeal. Several include sub-grounds which specify findings of fact that it is contended should not have been made. Not all of those challenges are with respect to "material" facts (cf Uniform Civil Procedure Rules 2005 (NSW) Pt 51, r 51.18(2)), and not all are now pressed. 2. Grounds 1 to 6 assert general errors in his Honour's approach to the task of weighing conflicting evidence in the fact finding process. The specific conclusions challenged with respect to the five causes of action are the subject of grounds 7 to 29 which appear under the following headings: * The First Assault/Battery * The Second Assault/Battery * The Third Assault/Battery * The Fourth Assault/Battery * Unlawful arrest/false imprisonment 1. The arguments made in support of those grounds are summarised below at [29] to [34]. Grounds 30 to 33 under the heading "Other matters" challenge further findings of fact. Of those grounds, 32 and 33(e), (f) and (s) are not pressed. The Shore Club 1. The four assaults alleged and as found took place in different places in or outside the Shore Club. That Club consisted of three levels – ground, first and second floor. The relevant events happened at the top of the stairway between the ground and first floors and in the walkway on the ground floor leading from that stairway to the entrance. 2. The front of the building faced the South Steyne promenade and beach, which run in a roughly north-south direction. There is a roadway on the western side of that promenade. The entrance to the Club, looking from that roadway, was at the southern and left hand side of the building, as shown in the part of the ground floor plan (Fig 1) which appears below. Fig 1: Ground floor entrance to the Shore Club. 1. The flight of stairs on that plan leads to a small landing between the ground and first floors. There was a further flight of stairs, at a right angle to the first, from that landing to the first floor level. That further flight of stairs is shown (above the number 3) on the part of the first floor plan (Fig 2) which appears below. Fig 2: First Floor showing stairs to and from this level. 1. From about 10:30pm on 2 December 2011, Mr Thomlinson was drinking in an area on the first floor. He had previously lunched with clients and then been drinking at a sailing club at the Corso in Manly. Three police officers, Senior Constable Iain Church, Senior Constable Ritson Renshaw and Constable Amy O'Donnell, entered the Shore Club at about midnight. Those officers attended the Club for the purpose of undertaking a scheduled inspection of the premises. The relevant events involving them and Mr Thomlinson took place between the top of the stairs leading from the first to ground floor and the end of the "ramp" area (shown in Fig 1 above) just inside the main entrance. The remaining two officers, Constables Christopher Grime and Regan Doring, became involved after Mr Thomlinson had been removed from the Club, and during his transportation in a police vehicle to North Manly where he was released. The pleaded issues before the primary judge 1. By his further amended statement of claim, Mr Thomlinson made the following allegations: 1. That at the top of the first flight of stairs leading to the ground floor he was "grabbed" and held by Constables Church and Renshaw and then forcibly escorted down the stairs to the ground level. This was described as the First Assault and was also the point from which it was said Mr Thomlinson was falsely imprisoned. 2. That as he was escorted from the stairs and along the "ramp" leading to the entrance he was pushed to the floor face-down by Constables Church and Renshaw. The latter was alleged to have "jumped" onto Mr Thomlinson's back, driving his knees into his lower back. His arms were then handcuffed behind his back by Constable O'Donnell. These events were said to constitute the Second Assault. 3. That he was then taken outside by Constables Church and Renshaw to the opposite side of the road and required to sit on a low concrete wall separating the road from the beach promenade. Whilst still handcuffed, Mr Thomlinson was searched by Constable Renshaw who removed his phone, wallet and business cards from his pockets. This search was said to constitute the Third Assault. 4. That while still handcuffed Mr Thomlinson was forcibly pushed by Constable Grime or Doring into the back of the caged police vehicle, and at the end of a journey to North Manly, pulled feet first from the back of that van. These events were described as the Fourth Assault. 5. That from shortly after midnight until about 1 am on 3 December 2011, Mr Thomlinson was unlawfully deprived of his liberty and accordingly falsely imprisoned. 1. This False imprisonment was said to have resulted from Mr Thomlinson's unlawful detention from the time of the First Assault until his release in North Manly following the Fourth Assault. Although there was an allegation of a "wrongful arrest" at the time of the First Assault, the relevant tortious conduct alleged was assault and false imprisonment. In its defence, although the State maintained that at the time of the First Assault it was "entitled" to arrest Mr Thomlinson, it alleged that it did not do so until he was handcuffed in the circumstances alleged to have constituted the Second Assault. 2. The State made the following specific answers to the alleged assaults, and false imprisonment: 1. As to the First Assault: that in seeking to eject Mr Thomlinson from the Club, Constables Church and Renshaw were assisting the occupier and licensee to remove him after his licence to remain had been revoked. They were also exercising the power conferred on them by Liquor Act 2007 (NSW), s 77(2)(a) to turn out any person who is "at the time intoxicated, violent, quarrelsome or disorderly". In each case they were authorised to exercise "reasonable force". As to the power under the common law of an owner or an occupier to do so, see Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; [1937] HCA 17 at 619 (Latham CJ), 632, 638, 639 (Dixon J) and Liquor Act 2007, s 77(5) permits the use of "such reasonable degree of force as may be necessary" to turn a person out. 2. As to the Second Assault: that as he was "escorted" down the stairs Mr Thomlinson struggled against being removed and his left arm came free of Constable Church's grip, striking him on the right side of his jaw. As a result Constables Church and Renshaw decided to arrest Mr Thomlinson for breach of the peace (see R v Howell [1982] QB 416 at 427 (Watkins LJ, Cantley and Hollings JJ)) and for remaining on licensed premises after being directed to leave, an offence under Liquor Act 2007, s 77(4). Constable Renshaw "took [Mr Thomlinson] to the ground" in order to arrest him and he was then handcuffed and told he was under arrest for a breach of the peace and for committing the offence of "excluded person remain on premises". 3. As to the Third Assault: that Mr Thomlinson, as a person in lawful custody after arrest, was searched in exercise of the power then conferred by Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), ss 23 or 24. 4. As to the Fourth Assault: that Constables Grime and Doring assisted Mr Thomlinson into the van while handcuffed; that he was driven to North Manly; and there released from arrest, Constable Grime having assisted him out of the back of the police vehicle. 5. As to the False imprisonment: that at no time was Mr Thomlinson unlawfully detained. The evidence and course of the trial 1. Only three witnesses gave oral evidence as to the circumstances of the alleged assaults. Each was called in the plaintiff's case. One was Mr Thomlinson. The State called no witnesses of fact in its case. 2. When opening Mr Thomlinson's case, his senior counsel said: We will call the plaintiff's solicitor to prove the contents of the police brief as served and to prove a compilation disc which has been prepared showing the movements of the plaintiff and of police on the night in question. I should perhaps explain that there were provided for the purposes of the prosecution, a number of CCTV discs and Mr Geoffrey, the solicitor in question, will say that from those discs there has been prepared the compilation disc showing movements of the plaintiff and of police. We will then call the plaintiff and two door staff from the Shore Club Hotel, a Ms Campbell and a Ms McKirgan and finally there'll be evidence from three doctors if they're required for cross-examination. That gives you I hope, sir, a sufficient outline of the case. 1. There was tendered in Mr Thomlinson's case a DVD containing a compilation of CCTV footage covering the relevant period which had been taken by cameras in the Shore Club and on the street outside the Club. There were also tendered documents produced by the NSW police in answer to a subpoena. Those documents, described as the "contents of the police brief", became Ex F, and included: * Two statements of Mr Thomlinson. * Statements of two Shore Club security officers, Mahmoud Almir and Youssef Cheikho, their supervisor Eliki Sagoa, and the "owner" of their corporate employer, Chaz Tanner. * Statements of three women working at the entrance of the Shore Club on the evening in question, Honora Campbell, Hayley McKirgan, and Sanae Edwards. * A statement of the licensee of the Shore Club, Michael Raftopoulos. * Statements of Andrew Latham and Casey Aimer, who were drinking with Mr Thomlinson. * Statements of Constables Church, O'Donnell, Renshaw and Grime and Sergeant Craig Huleatt. (Sergeant Huleatt first arrived at the Shore Club shortly after Mr Thomlinson was transported to North Manly). Copies of extracts from the police notebooks of Constables Church, O'Donnell and Renshaw were attached to their statements. * Entries in the NSW Police COPS (Computerised Operational Policing System) for event numbers E48552289 (the circumstances involving the apprehending and removal of Mr Thomlinson) and E45991515 (the scheduled business inspection of the Shore Club which explained the attendance of Constables Church, O'Donnell and Renshaw at the premises from about 11:50 pm on 2 December 2011). 1. The documents were described, when tendered, as the "police brief which your Honour needs to have for the purpose of or as part of the assessment of reasonable and probable cause". The reference to the "police brief" was to the evidence the prosecutor intended to adduce in the earlier criminal proceedings to prove the commission of the offence with which Mr Thomlinson had been charged: cf Criminal Procedure Act 1986 (NSW), s 183. The State challenged the correctness of that description and objected to the tender of some documents on the basis that they had been brought into existence for a separate purpose, namely the making of or dealing with a complaint by Mr Thomlinson of police misconduct. That complaint had been made on 13 December 2011 and was dealt with under Police Act 1990 (NSW), Part 8A. Those documents were said to be inadmissible by reason of Police Act, s 170. 2. The tender of the police brief was pressed as relevant to the claim for malicious prosecution and whether the prosecutor had acted without "reasonable and probable cause", an element of that tort to be established by the plaintiff: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1]. It was alleged that from the issue of the first penalty notice (which occurred on 20 December 2011), the prosecuting officer, Constable Church, did not honestly believe that Mr Thomlinson was guilty of the charge of failing to leave the premises: A v New South Wales at [76], [77]. For that reason it was explained that the police brief was tendered to prove the "material upon which the police proceeded against Mr Thomlinson in the Local Court". At that point the primary judge announced that he proposed to admit in evidence the documents forming part of the police brief, but not as to the truth of the facts asserted in them. They were marked as Ex E (corrected later to Ex F). After the documents were admitted, senior counsel contended that once admitted that material was available "for general use" in the proceedings. In response, the State submitted that Evidence Act 1995 (NSW), s 69(3) prevented the tender of the documents under the business records exception to the hearsay rule. At this point, the primary judge confirmed that the documents were admitted, and reserved the State's right to seek an order under Evidence Act, s 136, limiting their evidentiary use. 3. On the second day of the trial, and departing from the position taken immediately after the documents were tendered, Mr Thomlinson's senior counsel sought an order pursuant to Evidence Act, s 136 limiting their use to non-hearsay purposes relevant to the issue of "reasonable and probable cause". Counsel for the State then indicated his (changed) position as being that the documents were "in for all purposes" to which senior counsel for the plaintiff responded by withdrawing his application for the limiting order. At this point, neither party was seeking any limitation as to the use to which Ex F could be put. Subsequently, the State sought specific limitations to the use of five particular statements or reports (none of which included statements of the police officers or the security guards). The primary judge, in a separate reserved judgment (Thomlinson v State of New South Wales, (District Court of New South Wales, Hatzistergos DCJ, 14 April 2016, unrep)), dismissed the whole of that application. 4. The result was that the evidence of those witnesses, with the exception of Ms Campbell and Ms McKirgan, was untested by cross-examination and that the primary judge did not have the opportunity to see them give their version of events. That outcome could have been avoided by the plaintiff seeking an order under s 136 limiting the evidentiary use of the witness statements to proving their terms and that they were part of the prosecutor's "brief". The State would then have had to call those witnesses in its case if it wanted to prove (as it had to) the truth of their statements. That outcome also could have been avoided by the State calling them in its own case, so as to give the plaintiff's counsel the opportunity to cross-examine them. All of this occurred in circumstances where it was made clear by Mr Thomlinson's senior counsel in opening his case that his client was not intoxicated or quarrelsome, that the police were not entitled to turn him out, that he was not arrested for any breach of the peace and that more than reasonable force was used to remove him from the premises. The State could have been in no doubt from the outset that major aspects of the three officers' evidence (as given in their statements) were challenged in Mr Thomlinson's case which was described as putting "everything in dispute". Relevant provisions of the Liquor Act 2007 1. At this point, and before summarising the primary judge's conclusions, it is convenient to extract the immediately relevant provisions of Liquor Act 2007, ss 5, 73 and 77. 5 Meaning of "intoxicated" (1) For the purposes of this Act, a person is intoxicated if: (a) the person's speech, balance, co-ordination or behaviour is noticeably affected, and (b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor. (2) Accordingly, a reference in this Act to intoxication in relation to licensed premises is a reference to the presence of intoxicated persons on the licensed premises. […] 73 Prevention of excessive consumption of alcohol on licensed premises (1) A licensee must not permit: (a) intoxication, or (b) any indecent, violent or quarrelsome conduct, on the licensed premises. Maximum penalty: 100 penalty units. 77 Non-voluntary exclusion of persons from licensed premises (1) In this section: authorised person means a licensee, an employee or agent of a licensee or a police officer. employee includes, in the case of a registered club, a person engaged under a contract for services. vicinity of licensed premises means any place less than 50 metres from any point on the boundary of the premises. (2) An authorised person may refuse to admit to, or may turn out of, licensed premises any person: (a) who is at the time intoxicated, violent, quarrelsome or disorderly, or (b) whose presence on the licensed premises renders the licensee liable to a penalty under this Act, or (c) who smokes, within the meaning of the Smoke-free Environment Act 2000, while on any part of the licensed premises that is a smoke-free area within the meaning of that Act, or (d) who uses, or has in his or her possession, while on the premises any substance that the authorised person suspects of being a prohibited plant or a prohibited drug, or (e) whom the authorised person, under the conditions of the licence or according to a term (of the kind referred to in section 134 or 136D) of a liquor accord, is authorised or required to refuse access to the licensed premises. […] (4) If a person in respect of whom an authorised person is, under subsection (2) or (3), entitled to refuse admission to the licensed premises is on the premises, the person must, on being required so to do by an authorised person, leave the premises. Maximum penalty: 50 penalty units. (5) For the purposes of this section, such reasonable degree of force as may be necessary may be used to turn a person out of licensed premises. […] (12) A reference in this section to turning a person out of licensed premises includes a reference to causing the person to be turned out. (13) Nothing in this or any other section of this Act operates to limit any other right a person has to refuse to admit a person to, or to turn a person out of, licensed premises. The primary judge's conclusions 1. The primary judge dealt with these issues as follows. 2. As to the First Assault: 1. The primary judge did not decide whether the security guards (Mr Cheikho or Mr Almir) acting on behalf of the licensee had revoked Mr Thomlinson's licence to remain on the premises. If they had, his Honour "did not accept" that those guards had requested police assistance to give effect to any such decision, or that the police had acted on such a request: Judgment [175]-[177]. 2. As to the exercise of any power under s 77(2)(a), the primary judge addressed whether Constables Church and Renshaw reasonably believed that Mr Thomlinson's appearance and behaviour "was the result of the consumption of liquor" and was not satisfied that they did. Approaching the matter in that way, he was not satisfied that Mr Thomlinson was "intoxicated" within the meaning of Liquor Act 2007, s 5(1): Judgment [221], [225]. His Honour did not make any finding as to whether Mr Thomlinson was "quarrelsome" within s 77(2)(a): cf Judgment [226], [227]. He nevertheless rejected the State's reliance on his having been "quarrelsome" as engaging that power because there was no evidence that Constables Church and Renshaw had subjectively relied on that ground: Judgment [226]. 3. Thirdly, his Honour found that in taking Mr Thomlinson down the first flight of stairs the police officers were not entitled to and did not arrest him, either to prevent a breach of the peace or because there were reasonable grounds to suspect that he had committed the offence of refusing to leave on being required to do so, contrary to Liquor Act 2007, s 77(4): Judgment [244]-[246], [254]. 1. As to the Second Assault, the primary judge was not satisfied that any breach of the peace or resistance occurred (and specifically was not satisfied that Mr Thomlinson's left arm had struck Constable Church in the face) on the descent of the stairs leading to the ground floor. Accordingly there was no lawful basis for his arrest for any breach of the peace. There was also no lawful basis for his arrest at the bottom of the stairs, there being no breach of the peace found, and no possibility of a breach of Liquor Act 2007, s 77(4) because he had not lawfully been required to leave the premises: Judgment [276], [282]. This last conclusion depended on his Honour's earlier conclusion that the power conferred by s 77(2)(a) had not been engaged. 2. As to the Third Assault, the primary judge held that the search was unauthorised because Mr Thomlinson had not been lawfully arrested at the bottom of the stairs, and accordingly was not in lawful custody at the time he was searched: Judgment [300]-[302]; cf LEPRA, ss 23, 24. 3. As to the Fourth Assault, the primary judge found that the officers' acts in pushing Mr Thomlinson into the police van and in pulling him out of the van were unlawful in circumstances where he had not been lawfully arrested: Judgment [306]-[308]. His Honour made no separate finding that had Mr Thomlinson been under lawful arrest, the force deployed by Constables Grime and Doring was or would have been excessive. The only relevant finding at Judgment [307] is that the force used by those officers was not authorised by LEPRA, s 230 because the police were not exercising any lawful function under that Act or the common law. 4. Finally, as to the False imprisonment, his Honour found that Mr Thomlinson had been wrongly imprisoned for approximately 40 minutes from the time he was forcibly removed from the Shore Club until released on Pittwater Road in North Manly: Judgment [310]-[313]. The plaintiff's case had been that the wrongful deprivation of liberty commenced when the officers walked him down the first flight of stairs leading to the ground floor. 5. The primary judge awarded Mr Thomlinson $90,000 for the four assaults (separate awards were not made for each) and $7,000 for the false imprisonment: Judgment [479], [481] His Honour allowed the whole of the claim for past medical expenses of $8,796.23: Judgment [482], [483] and awarded $7,000 "by way of buffer" for future medical expenses: Judgment [484]. His Honour also awarded Mr Thomlinson aggravated damages of $15,000 and exemplary damages of $20,000: Judgment [497]. 6. In describing the police conduct justifying the award of damages of $90,000, the primary judge referred to "the point where police asked the plaintiff to leave the premises at the top of the stairs" and there being "no explanation … given as to why the officers had forced [his] arms behind his back": Judgment [493] (Italics added). The arguments in the appeal 1. The State challenges the findings, and absence of findings, in relation to each of the four assaults. As to the First Assault, it submits that the primary judge erred in not holding that the police officers were justified in using reasonable force to remove Mr Thomlinson, his licence to remain having been revoked and because he was "intoxicated" and "quarrelsome". These arguments are raised by grounds of appeal 7 to 13. 2. As to the Second Assault, the State submits that the primary judge erred in not finding that as he was being escorted down the stairs Mr Thomlinson struggled against being removed and in the course of doing so struck Constable Church's jaw with his left arm. That conduct entitled the officers to arrest Mr Thomlinson at the foot of the stairs for a breach of the peace and for the offence of failing to leave the premises on being required to do so. These arguments are made in support of grounds of appeal 14 to 18. 3. As to the Third and Fourth Assaults, the State submits that the officers' conduct in searching Mr Thomlinson and later transporting him to North Manly was authorised because he was in lawful custody following his arrest. This argument is made in support of grounds 19 to 23 and 24 to 27. 4. As to the False imprisonment, the State submits that because the officers were entitled to remove Mr Thomlinson, and to arrest him at the bottom of the stairs, his detention was justified. This argument is made by grounds 28 and 29. 5. As has already been noted, the appellant's arguments in relation to the First and Second Assaults include challenges to findings of fact made and contend for findings which it is said should have been made. The submissions in support of these challenges include that the primary judge erred in his treatment of the evidence of the police officers, security guards and at least one other witness (Mr Raftopoulos) whose signed statement was included in Ex F. The State contends that the primary judge erred in his approach to fact finding in at least the following three respects: 1. When weighing the evidence, his Honour discounted the witness statements of the officers and security guards who were not called and cross-examined. The State submits that this evidence should for that purpose have been treated as unchallenged, rather than as untested. 2. His Honour was prepared to draw inferences unfavourable to the State from the fact that the officers and security guards did not give oral evidence in its case, notwithstanding that some of the inferences drawn were contradicted by the evidence in their statements. 3. His Honour accepted submissions of the respondent that evidence of the officers in their statements should be rejected as deliberately false or dishonest notwithstanding that the evidence was tendered in Mr Thomlinson's case. The State submits that the respondent could not impeach that evidence because it was tendered in his case. 1. These general arguments are made by grounds 1 to 6 and, subject to making the two observations which immediately follow, it is only necessary to consider them to the extent they arise in dealing with the State's substantive arguments as described earlier. Finally by grounds 30 and 33 the State challenges specific findings of fact. Again those challenges are only addressed to the extent they arise in dealing with the State's substantive arguments. 2. Ultimately, the weight of evidence depends, as the editor of Phipson on the Law of Evidence (9th ed, Sweet & Maxwell Ltd, 1952) observed at 697, "mainly on [the] common sense, logic and experience" of the fact finder, whether judge or jury, citing Lord Blackburn in Lord Advocate v Blantyre (1879) 4 App Cas 770 at 792. Where evidence cannot be tested by cross-examination, it may be treated with considerable reserve. That is especially so if it is contradicted by other evidence and the party against whom it is adduced has been unable to test it by cross-examination: see Wightman v Wheelton (1857) 23 Beav 397; 53 ER 156 (Sir John Romilly MR); Clyne v Law Society (Court of Appeal (NSW), 4 September 1987, unrep), cited with approval in Brierley v Ellis [2014] NSWCA 230 at [24] (Meagher JA, Basten and Gleeson JJA agreeing). However, if the party against whom "untested" evidence has been adduced has the opportunity to test it (as is the position here where the respondent could have tendered the evidence for a limited purpose, so as to effectively require the State to lead the evidence in its case), but has not done so, the fact that it is untested would not necessarily provide a good reason for treating it as having little probative value. 3. But that was not the end of the matter in this case. The truth of the officers' statements was challenged by Mr Thomlinson's evidence, including under cross-examination. After that evidence was given, the State had the opportunity to call the police officers in its case but did not do so. That was a further circumstance the primary judge was entitled to take into account in assessing what weight should be given to their statements, which remained untested. To describe that evidence as "unchallenged", as the State suggests, does not deny this analysis. In any event, in a real sense that evidence was challenged, both by senior counsel's opening which made plain that the officers' evidence was contested in fundamental respects, and by Mr Thomlinson's evidence. 4. Where the police officers gave evidence in their statements as to a fact in issue, there could be no basis for drawing a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference adverse to the State with respect to the existence of that fact, by reason of their not giving oral evidence. As Glass JA explained in Payne v Parker [1976] 1 NSWLR 191 at 201-202, that principle may be invoked "for a deficiency in the evidence either of a party having the legal onus of proving an issue, or of a party bearing the evidentiary burden only". The conditions for its operation include that the evidence of the "missing witness" would address and clarify the existence or non-existence of the specific fact in issue. However, where there is evidence from that witness as to the relevant fact, albeit only in the form of an untested statement, that evidence, and not any insufficiently explained absence of oral evidence, is what must be considered and weighed in the balance. Challenges to findings and conclusions concerning the First Assault (Grounds 7 to 13) 1. The first argument made is that the occupier had a right to eject Mr Thomlinson, his licence to remain having been revoked, and that the police were lawfully assisting the occupier in doing so. The primary judge is said to have erred in not finding that the security guards had revoked Mr Thomlinson's licence to remain on the premises and in not finding that the officers in removing him were doing so following a request for their assistance; that request being either express, or implied from the security guards' conduct. Licensee's right to revoke Mr Thomlinson's permission to remain on premises 1. Liquor Act 2007, s 77(13) provides that nothing in that or any other section of that Act, "operates to limit any other right a person has to refuse to admit a person to, or to turn a person out of, licensed premises." The licensee of the Shore Club, despite its being described as a club, held a hotel licence for the purposes of that Act. The evidence does not indicate whether that licence was issued under that Act or was the result of the operation of the transitional provisions of that Act (s 160, Sch. 1, Part 2, Div 2, cll 3, 4) upon an existing hotelier's licence issued under Liquor Act 1982 (NSW) (although the fact that the floorplans in evidence, dated 2010, relocated an existing bar area suggests that it is more likely that the licence was granted under the 1982 Act or its predecessor). 2. In either event that hotel licence was subject to the following conditions implied by Liquor Act 2007, s 17(2) and (3): (2) Hotels must be open to general public The business carried out under a hotel licence must not be, or include, a business that is limited to the sale or supply of liquor only: (a) to persons who have been invited to use or attend the hotel, or (b) to a particular class, or particular classes, of persons using or attending the hotel. (3) Subsection (2) is subject to such exceptions as may be approved by the Authority on a temporary basis in relation to any particular hotel or to such other exceptions as may be prescribed by the regulations. Also, subsection (2) does not apply to the extent that is necessary to comply with any other provision of this Act or with any other law. 1. The State contends that the licensee of the Shore Club was entitled to terminate Mr Thomlinson's right to be on the premises at any time and without cause, reasonable or otherwise. That right is not said to arise from any express term or condition of entry brought to Mr Thomlinson's attention before he was permitted into the licensed premises. It is said to have arisen because the licence to enter operated as a bare permission to do what would otherwise have been an invasion of the hotelier's rights. As such that permission was able to be terminated by the licensee as occupier, or a person acting with its authority, so that having been told that the licence was terminated, and a reasonable time having elapsed to enable him to leave, Mr Thomlinson became a trespasser who could then be forcibly removed: Cowell v Rosehill Racecourse at 630-631 (Dixon J); Chen v State of New South Wales [2014] NSWCA 41 at [26] (Basten JA, Meagher JA and Tobias AJA agreeing). None of what is said to this point is controversial. What remains to be considered is whether notwithstanding s 77(13) such a right was displaced by any common law duty applicable to the owner of a common inn or by reason of Liquor Act 2007, s 17(2). 2. Under the early English common law, the keeper of a "common inn" was obliged to receive travellers, provided that they were willing to pay an adequate price for the accommodation offered and arrived in a state fit to be received. For early, and more recent, formulations of that common law obligation, see Luton v Bigg (1691) Skin 291; 90 ER 131; Rex v Ivens (1835) 7 Carr & P 213 at 219; 173 ER 94; Fell v Knight (1841) 8 M & W 269 at 276; 151 ER 1039; and Rex v Higgins [1948] 1 KB 165. The obligation was explained as arising from the "publick" nature of the innkeeper's position as someone who received travellers and provided lodgings and other "necessaries". In Thompson v Lacy (1820) 3 B & A 283; 106 ER 667 at 668, Best J described an inn as "a house, the owner of which holds out that he will receive all travellers and sojourners who are willing to pay a price adequate to the sort of accommodation provided, and who come in a situation in which they are fit to be received". The existence of the obligation was a fetter on the innkeeper's proprietary right to exclude or turn out members of the public from the licensed premises at any time, and without assigning any reason. 3. The proprietary rights of the owner of licensed premises which were not a common inn remained unfettered: Sealey v Tandy [1902] 1 KB 296. The applicant's argument in that case recorded at 298 and accepted by Lord Alverstone CJ at 299 (Darling and Channell JJ agreeing), and citing in support Reg v Armagh Justices [1897] 2 IR 57 and R v Rymer (1877) 2 QBD 136, was: A person has no common law right to be in a licensed house, as distinguished from an inn, if the licensee objects to his being there. This is recognised in the case of Reg. v. Armagh Justices, where Holmes J. held that the proprietor of a public-house licensed for the sale of intoxicating liquor on or off the premises was under no legal obligation to supply reasonable refreshment to all comers. Even in the case of an inn, the obligation upon the licensee to receive guests is limited to travellers, and the character of traveller may itself be lost (Footnotes omitted, emphasis added) 1. In New South Wales, colonial and state laws governing licensed premises recognised and modified those common law rules as they applied to the keeper of a common inn: Ex parte Coulson; Re Jones (1947) 48 SR (NSW) 178 at 199-201 (Herron J). Specifically, Liquor Act 1912 (NSW), provided by s 68 that "Every house in respect of which a publican's license has been granted shall be held in law to be a common inn"; and imposed by s 66 a penalty on the holder of a publican's licence for refusal to receive travellers if there was accommodation in the licensed premises "unless such traveller is intoxicated or a known disreputable person". Likewise, Liquor Act 1982 provided by s 100 that the premises to which a hotelier's licence relates "are a common inn" and that that provision did not "preclude premises that are not premises to which a hotelier's licence relates from being a common inn". The 1982 Act (s 23(3A)) also imposed as a condition of certain licences, including a hotelier's licence, that the "business" carried on pursuant to the licence be that of selling and supplying liquor "to the public resorting to the licensed premises" and not include a business limited "only to selling or supplying liquor to persons invited to resort to the premises or only to a particular class, or particular classes, of persons resorting to the premises". The types of licence to which that condition applied included night club licences and on-licences relating to restaurants, and accordingly extended beyond premises which were for the purposes of the Act taken to be a "common inn". 2. Importantly, Liquor Act 2007 contained no equivalent deeming provision to s 100 in relation to any licensed premises, although it continued to provide by s 17(2) that businesses carried out under a hotel licence must be open to the general public (see [40] above). Subsection 77(13) was introduced in 2010 (by item 11 of Schedule 1 of the Liquor Legislation Amendment Act 2010 (NSW). That provision, set out in [20] above, made plain that no section of the 2007 Act limited any other right a person has to turn a person out of licensed premises. At least from that time, there could be no basis for contending that either by reason of the premises formerly having been deemed to be a common inn, or by reason of some implication from s 17(2), the occupier of licensed premises was unable to turn out a patron. 3. Thus, prior to 1 July 2008, the premises were taken to be a "common inn", and the licensee was subject to restrictions to turn patrons out of the premises, as noted in Day v The Ocean Beach Hotel Shell Harbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 at [10]. The position which obtained between 1 July 2008 and 15 June 2010 (prior to the insertion of s 77(13)) is not presently relevant and may be passed over. On 3 December 2011, the licensee's right to turn Mr Thomlinson out from the Shore Club was not fettered by any common law or equivalent statutory obligation restricting the right of the owner of a common inn to do so. The evidence did not suggest that the Shore Club provided or held itself out as providing accommodation or other necessaries for travel. It was the modern equivalent of the "fully licensed house" or "alehouse", referred to in Sealey v Tandy at 299. 4. Nor was it fettered by any implication derived from s 17(2). That subsection does not in terms qualify the proprietary right of the occupier of licensed premises to exclude or turn out a patron without cause. Rather, it imposes a condition directed to the "business" carried out under the licence. The fact that the owner or occupier may from time to time refuse entry to or eject particular patrons would not be a breach of that condition unless the conduct occurred repetitively and was such as to show that the business activity was limited to the sale or supply of liquor to persons who have been invited or to particular classes of persons. Just as the fact that premises are "open to the public" without more does not limit or restrict the proprietary right of the business operator to exclude particular persons (see Owens v Normanton Liquor Accord [2013] 1 Qd R 168; [2012] QSC 118 at [37]-[40]), requiring that the business activity as carried on satisfy the description "open to general public" does not without more impose any legal obligation on the licensee or occupier to allow any particular member of the public to enter and remain on the premises. And s 77(13) stands in the way of any implication based on s 17(2) restricting the licensee's right to turn patrons out of the premises. 5. It follows that the State's contention that the licensee of the Shore Club had the right to revoke Mr Thomlinson's licence to enter the premises at any time, and without cause, must be upheld. The primary judge did not address this question, although was seemingly prepared to accept that the licensee or occupier could have revoked Mr Thomlinson's licence to remain and sought the assistance of the police officers to have him removed: Judgment [175]. Revocation of permission to remain on premises and express or implied request for police assistance 1. Two factual issues remain. The first is whether any security guard acting with the hotelier's authority terminated Mr Thomlinson's licence to remain on the premises. The primary judge did not make a finding as to this question: cf Judgment [175]. The second is whether in escorting Mr Thomlinson down the stairs, Constables Renshaw and Church were doing so with the consent of the security guards: Judgment [173]. His Honour was not satisfied either that the police were requested to provide that assistance, or that they did so in response to such a request: Judgment [175]. 2. The primary judge rejected Mr Thomlinson's evidence as to what happened when he was first approached by security guards and taken to the top of the stairs by one of the security guards (Mr Almir) who was then joined by the three police officers. Mr Thomlinson's evidence was that as he was standing near the top of the stairs he was asked by security guards to "move back", "just wait" and "wait here" and then approached by police officers and taken forcibly down the stairs: Judgment [31]-[33], [37], [38]. The primary judge also rejected his evidence that at the time this occurred his intention was to leave the premises: Judgment [30], [162]. 3. The principal evidence as to what occurred between the security guards (Mr Cheikho and Mr Almir) and officers O'Donnell, Church and Renshaw is contained in their statements and notebooks and the CCTV footage taken from camera six which shows events at the top of the stairs shortly after midnight, between 00:12:47 and 00:13:51. As to the period before the events shown on that footage, the primary judge found that Mr Thomlinson first interacted with Mr Cheikho and then Mr Almir: Judgment [164]. Mr Cheikho initially moved away his position at the top of the stairs to speak with Mr Thomlinson who was nearer the dance floor. He informed him "about a suggestion that he was intoxicated". His Honour found that Mr Thomlinson "took exception to [being told that], leading to an argument in which he was asked to leave for being rude": Judgment [168]; and that Mr Cheikho told Mr Almir to escort him out; and that Mr Almir "wrongly understood the reason [for that] as due to intoxication": Judgment [169]. 4. These findings accept paragraphs [12] to [14] of Mr Cheikho's statement which follow. I walked straight up to this male and said, "Can you come outside here to talk to me?" The male followed the instructions and came out. I said, "The bar staff have seen that you appear to be intoxicated". The male looked shocked and stunned. He said, "Are you serious? I've only just drunk one. What makes you think that? You wouldn't know if I was drunk. How long have you been working for?" I said, "That's my job. Your not drunk don't worry". I called for Mahmoud [Almir] on the radio because he could then take over my counting while I spoke to the male. The male said, "Your fucken joking?" I said, "There is no need for that kind of language". He said, "I want to speak to your supervisor". I said, "Your going to go back in, don't worry about it". He said, "That's a fucken joke". I said, "Ah your going". At this time the police officers were looking at us and this seemed to panic him. The male said, "The bar staff is a fucken idiot. He can't tell me I'm drunk. Look at this I haven't even finished it". The male held a beer glass up that was partially full. I said, "Calm down". At this time he seemed to become blatantly rude and shocked that he was being thrown out. Mahmoud walked over to me and said, "What is going on?" I said, "Take him out and I'll come and write down the report". Mahmoud said, "Why am I kicking him out?" I said, "Because he is being rude. You check if he is showing signs for RSA". Mahmoud turned around to speak with the male and the male was swearing at Mahmoud. I can't remember the exact words but knew the male was being rude to Mahmoud. 1. Mr Almir's evidence was of the following conversation with Mr Cheikho, which occurred at the main entrance to the dance floor on level 1 and before he moved Mr Thomlinson to the top of the stairs: […] Youssef [Cheikho] said to me, "One of the bar staff said this man is intoxicated and needs to be escorted out. I can't leave my position as I am counting. Can you escort him out?" I acknowledged that request and at this stage the man was being stubborn by not responding. I walked up to the man and said, "You need to leave". The main said, "I'm not drunk". I said, "Just walk with me and talk in a quieter place so we can make a decision". The man said, "No I'm not drunk, I'm not leaving, I'm not leaving". The man was very stubborn and direct in how he said this. At this stage the man was blocking the stairs which was interrupting the flow of people up and down. I saw this as a problem and to be an OH & S issue as well at the time. I can't recall the exact timing however do remember the man saying, "Fuck off" to me. The males tone was rude and arrogant. The male did not consider my opinion to matter. I could not smell intoxicating liquor on this mans breath. This males eyes were a bit red. 1. This evidence, which the primary judge accepted, was only consistent with Mr Cheikho having decided that the respondent should leave the premises and having told him that he was "going". He then instructed Mr Almir to "take him out". Mr Almir in turn told the respondent that he needed "to leave". Having found that Mr Thomlinson was "asked to leave for being rude" (Judgment [168]), the primary judge should have held that the security guards, by those words and their conduct, revoked Mr Thomlinson's licence to remain on the premises. That conclusion is wholly consistent with the contemporaneous incident report prepared by the security guards' supervisor, Mr Sagoa, from information provided to him in the early hours of 3 December 2011. The boxes ticked in relation to the details of that incident include "violence/aggression", "intoxication" and "fail to quit". The short written report states: P1 [Thomlinson] refused to leave venue when asked to leave by security (Youssef [Cheikho]). Police then asked P1 to leave but refused. Police then escorted P1 out of venue. 1. The second factual question is whether the police removed Mr Thomlinson at the invitation of the licensee. Just before the CCTV footage taken by camera 6 commences, there was a struggle between Mr Almir and Mr Thomlinson (Judgment [166]). Mr Almir is then shown in that footage moving Mr Thomlinson backwards towards the top of the stairs where the three officers first became directly involved. Mr Cheikho's evidence was : When Mahmoud [Almir] was trying to escort the male down the stairs the male reached between Mahmoud and I and said, "I want to talk to the supervisor" as he pointed to the police. I approached the police and spoke to the bigger police officer. I said, "He's got to go as he is being blatantly rude. We have people coming up and down with only one access. We can't block the stairs". I could see the police watching me talk to this man the whole time. The three police went straight to Mahmoud. The male was still standing on the top of the stairs at this stage and was peaking with his anger. The male looked really angry and kept saying, "I'm not drunk". He was boiling up and kept asking "Why am I getting accused". He seemed very frustrated with us. The police walked up and said, "You're going". The male said, "Can I tell you what happened?" The police escorted him downstairs to clear the access way. I didn't see physically how the police took the man downstairs. 1. Mr Almir's description of these events was that the two male officers "could see that the man was not responding to my request … [and] intervened by taking over from me". He continued: I heard one of the officers say, "Come on mate lets go". The man said, "No I don't want to". The police took the man by his arms and the man said, "Don't touch me" and was trying to push the police away from him. The two male police held one arm each and escorted the male down the stairs. I only saw the male be moved down about one or two steps before I turned and walked back to my position. 1. This evidence of the security guards is consistent with what appears on that CCTV footage, which looks towards the top of the first flight of stairs leading down to the ground floor. Mr Almir is first seen facing Mr Thomlinson with his left arm around Mr Thomlinson's back and walking him towards the top of the stairs, backwards from Mr Thomlinson's perspective. During this movement, Mr Thomlinson is looking over Mr Almir's left shoulder and gesticulating towards Mr Cheikho who is initially out of the frame. Mr Cheikho then steps forward and places his left hand on Mr Thomlinson's right shoulder. At this point, Mr Thomlinson and Mr Almir are standing and facing each other at the top of the stairs with Mr Thomlinson's left shoulder facing down the stairs. Mr Thomlinson is talking. Mr Cheikho then moves away as Constable O'Donnell arrives from behind and to the left of Mr Almir and appears to speak to Mr Thomlinson over Mr Almir's left shoulder. Officer Church then moves forward on Officer O'Donnell's left side. There is a conversation between the two officers and Mr Thomlinson. Officer Church then advances and places his left hand on Mr Thomlinson's upper back. There is a further exchange between them. Officer Renshaw (with a dark blue cap on) then appears in the frame standing behind and between Officers Church and O'Donnell. During whole of this short sequence, Mr Almir remains standing in front of the two officers and facing Mr Thomlinson who by this stage is holding a mobile phone in front of him and in both hands. There is a further short conversation. Officer Church then pushes Mr Thomlinson towards the edge of the stairs. At the same time Officer Renshaw steps forward, places his left hand behind Mr Thomlinson's right shoulder and turns him around and towards the stairs. The three men walk rapidly down the first flight of stairs. They pass Mr Raftopoulos on their left side as he comes up the stairs. He does not turn to watch what is going on behind him as they disappear out of view, down the second flight of stairs. 2. The statements of each of the three officers describe these events at the top of the stairs. Constable O'Donnell's statement included: I walked over [to] the security and the male in an attempt to find out what was happening. The security officer said something along the lines of "he has been asked to leave, he is intoxicated". The male then said to me "What have I done?" where I said "You are intoxicated and have been asked to leave. It's time for you to leave". The male then said "But Why?" After speaking with the male, it confirmed my view that he was intoxicated as he was slurring his words and smelt of intoxicating liquor. Senior Constable Church who was standing near by walked up and said "Mate you are intoxicated and have been asked to leave the premise by security due to your intoxication. At this time I'm asking you to leave the premises". The male then said "But why do I have to leave?" where Senior Constable Church responded "I have already stated to you why you have to leave. If you do not leave you will be committing an offence. You have to leave now". The male then said "No". Senior Constable Renshaw then walked up from behind me, grabbed the male's right arm and started walking down the stairs. Senior Constable Church grabbed the male by his left arm. 1. The statements of Constables Church and Renshaw were to a similar effect. The evidence also included extracts from the police notebooks of Constables Church, O'Donnell and Renshaw. Constable Church's note was very short and, according to his statement, written in the early hours of 3 December 2011 following a conversation with Mr Almir. It states: Security asked male to leave after bar staff had identified him as being intoxicated. 1. Constable Renshaw's notebook entry also appears to have been made in the early hours of 3 December, after the respondent had been placed in the police vehicle, and records: POI was asked repeatedly to leave the premises by security bar staff and police due to his intoxication. POI refused the requests. Was then escorted out by police when POI resisted LSC Church and CST Renshaw. POI has then elbowed LSC Church to the head. POI was then taken to the ground just inside the entry of the Shore Club. He was then handcuffed to the rear before being escorted outside. He continued to ask why he had to leave and was informed on approximately 20 occasions it was due to him being too intoxicated. He was then placed in the rear of a caged truck and taken to a bus stop at North Manly to prevent a breach of the peace. 1. Constable Church's signature and the words "true and correct" appear at the foot of that entry, and on the following page is followed by five entries for subsequent days commencing 4 December 2011. The year part of the date for each of those entries has been corrected by writing "11" over what was originally written as "12". Constable Church's statement includes that he signed Constable Renshaw's notebook to confirm that it was true and correct, but does not say when that was done. 2. The evidence of Mr Cheikho, Mr Almir and each of the three police officers as well as the CCTV footage described above, is or shows that the police intervened at the top of the stairs and took over from Mr Almir the task of removing Mr Thomlinson from the premises. The primary judge dealt with this evidence at Judgment [176] and [177] as follows. Mr Cheikho asserted that the Plaintiff stated "I want to talk to the supervisor" as he pointed to the police whereupon Mr Cheikho asserted that he spoke to the bigger police officer and said: "He's got to go as he is being blatantly rude. We have people coming up and down with only one access. We can't block the stairs." However Exhibit H shows that Mr Cheikho was walking away from the Plaintiff and Mr Almir to their left as the police approached from their right. It does not support conversation between Mr Cheikho and police. LSC Church stated that he watched the conversation between the Plaintiff and the first security guard but was unable to understand what was being said. The only security person who could have conversed with police was Mr Almir. However he gave no account of any conversation with police and his evidence was that he sought to move the Plaintiff as I have described … Nowhere in his asserted response is it suggested there was a request for assistance, rather as noted earlier, he stated that "police wanted him out." 1. His Honour was correct to observe that the CCTV footage did not show Mr Cheikho at the top of the stairs at the time the police, and specifically Constable O'Donnell, first approached Mr Thomlinson and Mr Almir. However, Mr Cheikho's evidence (see [55] above) was that he spoke to the "bigger police officer" after speaking to Mr Thomlinson. That conversation took place away from the stairs and before the three officers "went straight" to Mr Almir. Accordingly, and contrary to the conclusion reached by the primary judge, the CCTV footage supported and was wholly consistent with Mr Cheikho's evidence. Secondly, his Honour does not in his analysis refer to or take account of Constable Church's evidence that, at a time when Constable O'Donnell was speaking to Mr Thomlinson, he was told by one of the security guards that Mr Thomlinson had been asked to leave because he was intoxicated. That evidence also is consistent with the CCTV footage which shows Constable Church is in a position where he is able to have a conversation with Mr Almir. Finally, whilst Mr Almir gave no account of any conversation with the police, his evidence was that Mr Thomlinson was not responding to his request and that the two male officers were standing nearby and could see that was so. In his words they then "came to assist" and "intervened by taking over from me". Again, that description accords with what appears on the CCTV footage. 2. This Court is in as good a position as the primary judge to make findings as to what happened between the security guards and the police officers at the top of the stairs, in circumstances where the primary judge rejected Mr Thomlinson's evidence on this topic: Judgment [162], [168]. The remaining evidence is the CCTV footage and the witness statements. That evidence shows that in removing Mr Thomlinson, the police "took over" that task from Mr Almir. It was apparent that Mr Thomlinson was refusing Mr Almir's attempts to move him down the stairs. That accords with the primary judge's findings that it was reasonable for the police to believe that he was "refusing to cooperate [and] argumentative" and that he had "refused to leave": Judgment [210], [214]. Shortly after joining Mr Almir at the top of the stairs, the police stepped forward and escorted Mr Thomlinson down the stairs. In doing so, they were responding to Mr Cheikho's invitation for assistance made by the words "He's got to go as he is being blatantly rude. We have people coming up and down with only one access. We can't block the stairs". In my view the primary judge erred in not so finding. Turning out of the premises under s 77(2)(a) 1. It is convenient first to address the provisions of ss 5 and 77(2)(a) which are extracted in [20] above. The condition which must be satisfied for the exercise of the power is that the person whom it is proposed to refuse to admit or turn out be "at the time intoxicated, violent, quarrelsome or disorderly". That condition does not include that the person exercising the power identify or have a subjective belief as to the existence of the particular characteristic relied on to support the exercise of the power: cf Liversidge v Sir John Anderson [1942] AC 206 at 226, 227, 245 per Lord Atkin. The use of the disjunctive "or" also makes plain that for the power to be engaged, only one of the described characteristics need be satisfied. It follows that the existence of any one of those characteristics is sufficient to support the exercise of the power and that any mistake as to the source of the power does not render its exercise invalid: see Jones v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 at 426 (Brennan J); and generally Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3 at 175 (Crennan and Kiefel JJ), citing Lockwood v The Commonwealth (1954) 90 CLR 177; [1954] HCA 31 at 184 (Fullagar J). 2. It also follows that in proceeding on the basis that the power to turn out could only be exercised if the police officers identified the specific characteristic relied on, and had a belief as to its existence (Judgment [221], [226]), the primary judge erred. Two further questions arise in relation to the State's challenge to his Honour's conclusion that Constables Church and Renshaw were not authorised under s 77(2)(a) to remove Mr Thomlinson. They are whether he was "intoxicated" or "quarrelsome" at the time the power was exercised. "Intoxicated" 1. The definition of "intoxicated" has two parts. The first in s 5(1)(a) requires that "the person's speech, balance, co-ordination or behaviour is noticeably affected", in the sense of being impaired. What is described is a state of affairs which must be proved as an objective fact, and not as a subjectively held opinion of the person seeking to exercise the power as to the existence of that state of affairs. The second part requires that state of affairs "in the circumstances" be sufficient to induce a reasonable person to believe "that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor". See George v Rockett (1990) 170 CLR 104 at 112; [1990] HCA 26 (the Court); Prior v Mole [2017] HCA 10; 91 ALJR 441 at [24] (Gageler J). Thus the definition of "intoxicated" is satisfied if the state of affairs in paragraph (a) exists and viewed objectively is sufficient in the circumstances to induce a belief that it is the result of the consumption of liquor. In neither part of that definition is there any requirement that the person exercising the power subjectively believe that the relevant person is "intoxicated", either on reasonable grounds or otherwise: cf Liversidge v Anderson at 245. In considering paragraph (b) of the definition, the primary judge inquired whether Constables Church and Renshaw held the belief in that paragraph, and had reasonable grounds for that belief (Judgment [221]). Neither paragraph (b) of the definition nor s 77(2)(a) require that the person exercising the power have such a reasonable belief. 2. These conclusions make it necessary to consider whether in this appeal by way of rehearing under Supreme Court Act 1970 (NSW), s 75A, the Court can decide this issue. There are difficulties in the way of its doing so, because the relevant evidence includes Mr Thomlinson's oral evidence, including cross-examination as well as the evidence of Ms Campbell. Mr Thomlinson denied that he was intoxicated and claimed that he was completely coherent, not swaying, and that he was not refused service at any time on the night in question: Judgment [179], [194]. Ms Campbell gave evidence that she did not believe Mr Thomlinson was drunk: Judgment [179]. The remaining evidence is in the form of the witness statements. The three police officers gave evidence of their observing Mr Thomlinson swaying from side to side and Constable O'Donnell said he was slurring his words and smelt of intoxicating liquor. That evidence was not corroborated by the evidence of the security guards. Mr Cheikho's assessment was that the respondent was not intoxicated, and Mr Almir, who did not have an opportunity to assess his intoxication level, said that although Mr Thomlinson's eyes were a bit red, he did not smell of liquor. Because this conflicting evidence raises questions as to the credibility of Mr Thomlinson, this Court is not in a position to determine for itself the issue of intoxication. If the resolution of that issue were dispositive of the State's appeal in relation to the First Assault, it would be necessary to order a new trial in relation to that claim, and any remaining issues. However, it is not necessary to take this course at this point in the analysis because of the finding in relation to the revocation of Mr Thomlinson's licence and because of the other basis on which the State claims the police were authorised to act under s 77(2)(a). "Quarrelsome" 1. Under Liquor Act 2007, s 73, it is an offence for a licensee to permit any "indecent, violent or quarrelsome conduct" on the licensed premises. The word "quarrelsome" in the expression "drunken, violent, quarrelsome or disorderly" (s 77(2)(a)), or similar expressions, has been used since the mid-19th century to describe one type of behaviour justifying the removal of persons from licensed premises. Section 41 of the Refreshment Houses and Wine Licences Act, 1860 (23 Vic c 27) authorised a constable to expel from licensed premises any person who was "drunk, riotous, quarrelsome, or disorderly"; and the Licensing Act 1872 (35 & 36 Vic c 94) by s 18 conferred power on the licensee to turn out any person who was "drunken, violent, quarrelsome, or disorderly". 2. As was observed in Adeels Palace Limited v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [20], and is made plain by Liquor Act 2007, s 3(2), the object of provisions such as s 73 and the power to turn out under s 77(2)(a) is to minimise harm associated with the misuse and abuse of liquor, including that which results from violence and other anti-social behaviour. Despite the longstanding statutory use of such expressions, there are surprisingly few reported decisions as to what constitutes "quarrelsome" conduct. In Dallimore v Tutton (1898) 78 LT 469, the Court of Appeal did not have to decide whether conduct involving "bad language" answered that description although that had been the prosecution case before the magistrates. The issue was whether, for the exercise of the power under Licensing Act 1872, s 18, that conduct had to have occurred before the patron was turned out. The Court held that it did. 3. The meaning of "quarrelsome" takes its colour from the other words in the expression in which it appears, as well as from the statutory context. It requires more than mere polite disagreement or dispute. So understood, it describes anti-social behaviour which is argumentative or confrontational, and usually accompanied by some degree of hostility or anger. In Romito v Williams (Supreme Court of Western Australia, 4 December 1992, unrep), Ipp J, having observed that a "quarrelsome" person is likely to have the "potential to cause trouble in licensed premises", so as to justify a power to turn out, ventured that as used in Liquor Licensing Act 1988 (WA), s 108(3)(b)(ii), it: … connotes aggressive behaviour involving contending or disputing violently, becoming inimical or hostile, or challenging and reproving angrily. Being affected by alcohol may bring about quarrelsomeness, and is often part of quarrelsomeness, but quarrelsomeness does not necessarily import drunkenness. 1. In Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108, there was an issue as to whether crew employed by the respondent licensee of a cruise ship should have identified and removed particular patrons for having engaged in "violent, quarrelsome or disorderly conduct". Those patrons were loud and boisterous, with a lot of swearing, but there was no suggestion their behaviour was directed towards any other person. In the absence of interaction between that group and others, or aggression directed by them to particular persons, Boddice J (Gotterson JA and Flanagan J agreeing) was not satisfied the conduct was "quarrelsome or disorderly": [56] – [58]. 2. Although the primary judge did not decide whether Mr Thomlinson was "quarrelsome", he did make findings relevant to an assessment of his conduct as answering that description. Those findings included that Mr Thomlinson took exception to the suggestion of Mr Cheikho that he was intoxicated and that this led to an "argument in which he was asked to leave for being rude": Judgment [168]; that Mr Thomlinson had conversations with Mr Cheikho in the terms extracted at [53] above: Judgment [185]; that when the police first saw Mr Thomlinson interacting with the security guards it appeared that he was refusing to cooperate and was argumentative: Judgment [210]; and that Mr Thomlinson refused to leave when requested to do so by the security guards: Judgment [214]. As appears above, these findings involved the rejection of Mr Thomlinson's version of the events at the top of the stairs: Judgment [162], [168]. The evidence of the security guards (see [52] and [53] above) included that Mr Thomlinson's conduct towards them involved repeated swearing, his being "blatantly rude", "very stubborn" and "rude and arrogant", and that he refused their repeated requests and directions to leave the premises. 3. In my view this conduct, which occurred both before and after the security guards had asked Mr Thomlinson to leave, and before Constables Church and Renshaw commenced to escort him down the stairs, was "quarrelsome". It involved argumentative and somewhat aggressive behaviour, including repeated swearing, directed at the two security guards, as well as a continuing refusal to act as requested and directed. The evidence supporting those findings is evidence that the primary judge accepted, and the findings do not require the resolution of any credibility issues because of his Honour's earlier rejection of Mr Thomlinson's version of the relevant events. Indeed, senior counsel for the respondent made it clear that, whilst not conceding the point, he did not wish to be heard against a finding that Mr Thomlinson had been "quarrelsome" when speaking with Mr Cheikho. Conclusion as to the First Assault 1. It follows that the State's appeal in relation to the First Assault should be upheld. The police were authorised to remove Mr Thomlinson from the premises on two bases. The first was the power conferred by s 77(2)(a). The second was the licensee's power to remove Mr Thomlinson, his permission to remain having been terminated. In each case they were entitled to use reasonable force. Challenges to findings and conclusions concerning the Second Assault (grounds 14 to 18) 1. The State challenges the primary judge's omission to find that, as he was being escorted down the stairs Mr Thomlinson struggled, and that in the course of doing so, his left arm came free and struck Constable Church's jaw. It contends that findings to that effect justified the officers arresting Mr Thomlinson for a breach of the peace and for the offence of not leaving the premises having been required to do so, contrary to s 77(4) (see [20] above). 2. The primary judge's conclusion in relation to the State's justification of the Second Assault was (Judgment [272]): I am not satisfied that any act of assault or resistance was committed by the Plaintiff, let alone that any such action caused the accompanying police to lose balance on the stairs. I have previously found that police could not have turned the Plaintiff out under s 77(2) of the 2007 Act. Consistent with the authorities discussed earlier irrespective of whether the Plaintiff was advised then or subsequently, I find that there was no basis for any arrest for breach of the peace. 1. In his statements to the police Mr Thomlinson did not refer to any incident happening on the stairs. In cross-examination he denied that he had struck, either deliberately or accidentally, any officer while on the stairs. He also denied that he had struggled. The evidence as to whether he was struggling and resisting the officers on the way down the stairs can be dealt with in three parts. 2. The first is the evidence of the three women working at the entrance to the Shore Club, Ms Campbell, Ms McKirgan and Ms Edwards. Ms Campbell and Ms McKirgan gave oral evidence and were cross-examined. Ms Edwards' statement was tendered. The primary judge found that Ms Campbell did not see the two officers and Mr Thomlinson coming down the stairs: Judgment [265]; and that Ms McKirgan did not see Mr Thomlinson resisting when he was taken to the floor at the bottom of the stairs and handcuffed: Judgment [266]. Ms Edwards' evidence was that Mr Thomlinson was resisting the police attempts to put his hands behind his back when arresting and handcuffing him. The primary judge was not satisfied that her account was reliable, her evidence being "untested" and inconsistent with the evidence of Ms McKirgan and Ms Campbell: Judgment [267], [268]. 3. The second part is the evidence of the three officers and Mr Raftopoulos. Constable O'Donnell descended the stairs behind the other officers and did not see any resistance or striking of Constable Church: Judgment [269]. In dealing with the other officers' evidence, the primary judge first referred to the differences between the evidence of Constables Renshaw and Church as to what happened at the bottom of the stairs. Constable Renshaw's evidence was that as they descended the stairs, Mr Thomlinson continued to attempt to break free by pulling away and for that reason he was "taken to the ground" at the bottom of the stairs and inside the entrance to the premises: Judgment [272]. Constable Church's account was that as a result of Mr Thomlinson's struggling, he lost balance, falling down the last few stairs and landing heavily on the ground with Mr Thomlinson, after which he was handcuffed. The primary judge noted the differences in these accounts: Judgment [275]. 4. Having referred to Mr Thomlinson's denial that he had hit or contacted any police officer, the primary judge continued at Judgment [276]: The differing accounts of how LSC Church is said to have been struck and the absence of any support from other civilian witness including the account of Mr Raftopoulos that "everything seemed normal" leaves me to be unable to be satisfied that it occurred. No charge of resist arrest or assault police were brought. LSC Church's failure to refer to the actions of SC Renshaw as well as the terms of Acting Inspector Huleatt's account of what he was told about the matter cause me to doubt LSC Church's credibility in particular. 1. This analysis gives two reasons for his Honour's being "unable to be satisfied" that the striking incident occurred. It then adds an observation as to the absence of any charge being brought, without attaching any particular significance to that absence. Finally, it gives two reasons for doubting Constable Church's credibility "in particular". It is not clear what constitute the "differing accounts" of how the officer was struck. If that is a reference to differences between Sergeant Huleatt's and Constable Church's evidence, it does not provide a good reason for rejecting the latter. Sergeant Huleatt attended the Shore Club after Mr Thomlinson had been taken away. His statement records his being informed by Constable Church "that whilst the male was being removed one of the police officers had been struck to the face by the male's elbow". At Judgment [273], the primary judge observed that if this in fact had occurred to Constable Church, "it is unusual that he would not have mentioned the fact that he was the police officer that was struck". That may be so, however, what is recorded remains consistent with the evidence that there was contact with an officer's jaw, and the only possibilities were Constables Church or Renshaw. The reference to "differing accounts" could be to the evidence of Constables Church and Renshaw as to what happened at the bottom of the stairs and after Constable Church had been struck. If it is, it does not provide a good reason for rejecting the evidence as to that incident, the happening of which is not made less probable by the differing accounts of what followed. 2. Most significantly, and notwithstanding the earlier reference to another aspect of Constable Renshaw's evidence in Judgment [272], the primary judge's analysis of the accounts of the striking incident contain no reference to that witness' description of what happened, which was that towards the base of the stairs Mr Thomlinson started to resist and attempted to break free and that as he twisted his body and broke free of Constable Church's hold, his left elbow hit Constable Church "in the right side of his jaw". That evidence slightly expanded on Constable Renshaw's apparently contemporaneous notebook entry, which recorded that "when the POI resisted LSC Church and CST Renshaw POI has then elbowed LSC Church to the head". 3. The other account of the alleged striking was that of Constable Church in his statement: THOMLINSON then began resisting and pulling his arms away. THOMLINSON was twisting his wrists and pulling his arms in then away from his body. Due to the strong motion of THOMLINSON and the sweat on THOMLINSON wrists, I lost grip on the accused left arm which caused THOMLINSON left elbow to rise and make contact with the right side of my jaw. This caused immediate pain to my right jaw area. This occurred about half way down the bottom flight of stairs which leads into a small walk way area that exits the Shore Club. 1. The primary judge's reference to the "differing accounts" of how Constable Church was said to have been struck cannot be to the accounts of Constables Church and Renshaw, the persons directly involved in the incident, for reason that those accounts do not answer that description. In addition, his Honour's reasoning contains no reference to the contemporaneous notebook entry. That evidence of Constable Renshaw had to be evaluated when deciding whether Mr Thomlinson's elbow had struck Constable Church in the course of his struggling and resisting. 2. Finally, in relation to this second part of the evidence, the primary judge treats as significant Mr Raftopoulos' comment that "everything seemed normal" in relation to the police escorting Mr Thomlinson from level 1. Doing so implicitly assumes that if there was struggling or any contact, Mr Raftopoulos would have seen it as he came up the stairs. That assumption was not justified because the CCTV footage clearly shows Mr Raftopoulos passing the officers and Mr Thomlinson near the top of the stairs leading from the first floor, and not turning back to observe them. 3. The third part of the evidence is the CCTV footage taken by camera 6 and also footage taken by camera 25. The latter, looking down the second flight of stairs, is grainy and as senior counsel for the State rightly conceded, "not very clear" and of marginal assistance. It does not recognisably show either that Mr Thomlinson is struggling or that his left arm comes free and contacts Constable Church. 4. In concluding that he was "unable to be satisfied" that Constable Church was struck by the respondent's elbow, the primary judge neither accepted nor rejected Mr Thomlinson's evidence referred to earlier. In assessing the remaining evidence, at Judgment [276], his Honour does not take account of the evidence of Constable Renshaw as to what he saw or the fact that his notebook entry was made within hours of that event, unjustifiably treats the absence of any reference to that event in Mr Raftopoulos' evidence as material and attributes a significance to "differing accounts" of how Constable Church was struck which is not apparent in the evidence. These mistakes of the primary judge in the comprehension and evaluation of this evidence concerning the Second Assault mean that the issues it raises must be re-determined. Ground 14 is made out. However, because that determination will require an evaluation of all the evidence bearing on that claim, and accordingly Mr Thomlinson's evidence and credibility, it is not one this Court may undertake. Challenges to Third and Fourth Assaults (grounds 19 to 27) 1. The State's challenges to these findings depend on the outcome of its appeal in relation to the Second Assault. If it succeeds in establishing that there was a lawful arrest on the ramp leading from the bottom of the stairs, the search relied on as constituting the Third Assault was authorised by LEPRA, ss 23 or 24; and the transporting of Mr Thomlinson to North Manly occurred whilst he was under lawful arrest and to enable his release from custody. Outcome and orders 1. The consequence of the conclusion in relation to the Second Assault is that there must be a new or re-trial, at least of the issues raised by the Second, Third and Fourth Assaults. Any re-trial of the issues raised by those three assaults would have to be on the evidence adduced before the primary judge. If the position were otherwise, those issues might be determined in the re-trial on different evaluations of the credibility of witnesses whose evidence has been considered by this Court with respect to the First Assault, raising the possibility that the issues concerning that assault may have been decided differently had they been dealt with in the re-trial. The only alternative would seem to be a new trial on all issues, either before the primary judge or some other judge, in which each party is free to adduce further evidence. Either course, and particularly the latter, will necessarily commit the parties to significant additional costs. However, that cannot be avoided if the litigation is to be pursued. 2. As was submitted by senior counsel for Mr Thomlinson, the parties should have the opportunity to make brief written submissions to this Court as to the issues to be decided in the new trial, whether the parties should be free to lead further evidence in that trial and whether it should be before the primary judge. 3. The State has succeeded in its appeal in relation to the First and Second Assaults, and whether it is ultimately successful in relation to that and the Third and Fourth Assaults will depend on the outcome of the further trial. It follows that the respondent should pay the costs of the appeal. It is appropriate that the respondent have a certificate under the Suitors' Fund Act 1951 (NSW). The errors making it necessary that there be a new trial or a re-trial are not the result of the respondent's conduct of the proceedings. 4. The parties also should have the opportunity of providing written submissions in relation to the costs of the proceedings at first instance, although there would seem to be much to be said for those costs being determined by the judge to whom the matter is remitted, in light of the outcome of the new trial or re-trial. 5. Finally, the State has paid $100,000 to the respondent in partial satisfaction of the judgment debt which is to be set aside. It seeks and is entitled to repayment of that amount together with interest: Uniform Civil Procedure Rules, r 51.54; TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104; Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445. 6. Accordingly, the orders I propose are: 1. Appeal allowed; 2. Set aside the verdict and judgment entered on 16 December 2016 and the order for interest on that judgment made on 20 January 2017; 3. The respondent pay the appellant's costs of the appeal; 4. The respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal; 5. Set aside the order for costs of the proceedings at first instance made on 16 December 2016; 6. The respondent repay to the appellant the sum of $100,000 together with interest to the date of this order, and thereafter in accordance with Civil Procedure Act 2005 (NSW), s 101; 7. Each of the parties file and serve within fourteen days written submissions (not to exceed six pages in total) as to the orders to be made in relation to a new trial or re-trial, and the payment of the costs of the proceedings at first instance, with a view to those matters being determined on the papers. 1. LEEMING JA: I agree with Meagher JA. 2. PAYNE JA: I agree with Meagher JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2018