District Court New South Wales Medium Neutral Citation: Juliette Pratten v State of New South Wales [2018] NSWDC 299 Hearing dates: 21 May 2018 – 24 May 2018 , Plaintiff's written submissions presented 24 May 2018, Defendant's written submissions dated 24 May 2018, Plaintiff's supplementary submissions dated 1 June 2018, Defendants supplementary written submissions dated 4 and 8 June 2018 Date of orders: 12 October 2018 Decision date: 12 October 2018 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: 1 Verdict and judgment for the Defendant. 2 Subject to any application within fourteen days to my Associate to relist the matter for any further or other order as to costs the Plaintiff is to pay the Defendant's costs. 3 The Exhibits are to be retained for 28 days. Catchwords: TORTS – False Imprisonment – Wrongful Arrest – Assault TORTS – Battery – Assault – Whilst in custody TORTS – Malicious Prosecution – Prosecutor – Senior Constable Legislation Cited: Children's (Criminal Proceedings) Act 1987 (NSW) s 8 Civil Liability Act 2002 (NSW) ss 51, 52, 53 Civil Procedure Act 2005 (NSW) s 56 Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 89A Crimes Act 1900 (NSW) s 58 Criminal Procedure Act 1986 (NSW) s 177 Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) s 136 Graffiti Control Act 2008 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 99, 105, 230, 231, Road Transport Act 2013 (NSW) s 116 Uniform Civil Procedure Rules 2005 (NSW) Young Offenders Act 1997 (NSW) Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 DPP (NSW) v Matthews-Hunter [2014] NSWSC 843 Fulham Partners LLC v National Australia Bank Limited [2013] NSWCA 296 HD v State of New South Wales [2016] NSWCA 85 Lule v State of New South Wales [2018] NSWCA 125 Papakosmas v R [1999] 196 CLR 297 PM v R [2007] HCA 49 Pringle and Ors v Everingham [2006] NSWCA 195 Sahade v Bischoff [2015] NSWCA 418 Shalhoub v State of New South Wales [2017] NSWDC 363 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Landini [2010] NSWCA 157 State of New South Wales v McMaster [2015]NSWCA 228 State of New South Wales v Randall [2017] NSWCA 88 State of New South Wales v Robinson [2016] NSWCA 334 State of New South Wales v Smith [2017] NSWCA 194 Timbarr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 654 Young v New South Wales, Young v Young (No 2) [2013] NSWSC 330 Zaravinos v State of New South Wales [2004] NSWCA 320 Category: Principal judgment Parties: Juliette Pratten (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Ms M Phelps (Plaintiff) Mr M Hutchings (Defendant) Solicitors: Rebecca Dunlop (Plaintiff) Norton Rose Fulbright (Defendant) File Number(s): 2017/00032438 Publication restriction: N/A INDEX Procedure: [2] Evidence: [12] Juliette Pratten – [13] Exhibit D - [36] Timothy Pratten – [47] Senior Constable Monique Tunks – [56] Senior Constable O'Brien – [67] Senior Constable Marshall – [79] Assessment: [99] False Imprisonment – [102] Battery and Assault – [145] Malicious Prosecution – [190] Damages: [217] Orders: [231] Judgment 1. This action arises out of events of 5 July 2014 when the Plaintiff was arrested by police consequent to an assault by her on her father Mr Tim Pratten. The assault occurred following a disagreement with Mr Pratten whilst teaching the Plaintiff to drive. Ultimately the Plaintiff came to drive the vehicle unaccompanied before arrested by police, transported to the police station and charged with multiple offences. The Plaintiff brings proceedings arising out of these events alleging wrongful arrest, false imprisonment, battery and malicious prosecution. PROCEDURE 1. At the commencement of the trial, the Plaintiff confirmed that the matter was ready to proceed. [1] The Court was informed that there was a potential issue as to compliance with a subpoena it had issued however it may or may not be necessary to advance it. [2] 2. At the outset, I sought from both parties a statement of issues in accordance with the standard directions made by the Court on 13 July 2017. Although the Plaintiff supplied material to this end, no such statement was supplied by the Defendant. The absence of such a document raised concerns on day 1 of the trial. [3] When the Defendant did supply a statement of issues [4] its contents were somewhat abstract. Although the Defendant indicated that the document would be revised to incorporate additional material as to damages and the application of sections 51-53 of the Civil Liability Act 2002 as pleaded in the Defence, this was not forthcoming. [5] 3. Added to this complication was what was identified in day 2 of the trial as a failure on the part of the Defendant to particularise the facts on which it relied in respect of the Plaintiff's arrest. [6] Nevertheless, the trial progressed, the Court being informed by the Plaintiff's counsel that the Plaintiff was content to proceed on a document having been provided to her by the Defendant. At that point, the Plaintiff elected to close her case. [7] 4. The issue thereafter resurfaced on day 3 of the trial, [8] after the Plaintiff cross-examined Senior Constable Jenna Marshall as to her knowledge of the Plaintiff's involvement with police prior to her arrest and her evidence before the Parramatta Children's Court. 5. It suffices to state that 1. the Defendant's failure to comply with UCPR 15.1 except by reference to the terms of s 99(1) (b)(i) and (ix) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW); 2. the Plaintiff's failure to seek an order under UCPR 15.10; 3. the issuance by the Plaintiff of a broadly based subpoena [9] resisted by the Defendant's Solicitors; [10] 4. the failure by the Defendant to provide a properly defined statement of issues; complicated the conduct of the proceedings leading to frequent objections and interruptions to the flow of evidence. 1. In Baffico v YMCA of Great Lakes Inc, Bergin CJ in Eq stated:- "[24] As this Court has said previously the days of trial by ambush are gone. The 'cards on the table' approach in litigation is not only to ensure that the real issues in dispute are litigated but it is also to assist in the just, quick and cheap disposal of the proceedings: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80. Those epithets are of course to be understood in the context of the particular case. It is imperative that the pursuit of timeliness and cost control in the case management process does not compromise what is at the core of the judicial system - the delivery of outcomes that are just." [11] 1. These principles also find expression in section 56 of the Civil Procedure Act 2002 (NSW). 2. At the conclusion of the evidence, I requested the parties to review together, the Plaintiff's statement of issues and identify with some precision, the legal and factual questions the Court was asked to resolve. [12] Both parties agreed to this course. Thereafter a document from both parties was presented, [13] together with written submissions. I will in due course refer to their contents. 3. During oral submissions the Plaintiff's counsel signalled that she would like an opportunity to address on the question of malice in the malicious prosecution in writing. [14] The Defendant sought to advance further written submissions on the question of the sequence of events when the Plaintiff was in the cell at Waverly police station and the identification of the grounds of arrest. [15] It was anticipated that the Plaintiff would also be able to respond by 1 June 2019. The Plaintiff's written submissions went beyond the issues in respect of which leave was sought by the parties and granted. To the extent they did so the Defendant in written submissions dated 4 and 8 June 2018 signalled its objections. Neither party sought to subsequently relist the matter before the Court. 4. Whilst there is force in the Defendant's objections, in the circumstances I propose to address the issues raised in Plaintiff's supplementary submissions as responded to by the Defendant's supplementary submissions. As these reasons demonstrate the Plaintiff's additional arguments do not alter the outcome of the case. Evidence 1. In the Plaintiff's case oral evidence was presented by the Plaintiff and her father Timothy Pratten. Juliette Pratten 1. As at 5 July 2015 Juliette Pratten was 17 years of age. She resided at the Caretaker's Cottage at Bondi Junction and had a learner driver's permit. [16] It was not in issue that before July 2015, she had been using illicit substances including Marijuana, Speed, Ice and MDMA. [17] 2. On 5 July 2015, the Plaintiff's father met her around the corner of the cottage and took her for a driving lesson. [18] The Plaintiff gave evidence that the driving lesson took place towards North Sydney although she was not exactly sure. [19] She stated that the lesson took place before lunch. [20] During the course of driving, the Plaintiff had an argument with her father about the way she drove and also whether they could stop to have lunch. [21] Eventually they stopped at the Kingsford McDonald's. Thereafter she drove whilst eating [22] however continued to argue with her father. [23] 3. At one point the rear windscreen wipers were operating and the Plaintiff tried to stop them. [24] She was outside the car with her father but subsequently, they both got back into the car. The Plaintiff sat in the driver's seat and Mr Pratten was next to her. Mr Pratten then tried to grab the keys and the Plaintiff stopped him by whacking him with her left hand. [25] The Plaintiff stated that her father then hopped out of the car as she heard someone on the main road telling him not to get back into the car. Thereafter she drove off. [26] She proceeded to drive the vehicle around the corner before pulling over to finish the rest of her burger. [27] She was listening to the radio and the ignition was turned on accessory. [28] The Plaintiff stated police arrived some 15 minutes later and subsequently she also saw a police paddy wagon arrive. [29] 4. In cross-examination, the Plaintiff conceded that before she was arrested on 5 July 2015, she was very angry due to a conflict between her and her father. [30] She acknowledged that she was frustrated to the point that she attempted to physically remove the windscreen wipers from the vehicle that she had been driving [31] and in the course of arguing with her father, she screamed loudly at him. [32] She accepted that she struck Mr Pratten with her left hand to his upper chest and stomach. [33] She stated that she struck him with a "medium" degree of "hardness." [34] She conceded that at 5 July 2014, she had a history of conflict with her father [35] and that conflict escalated into violence on occasion. She accepted that at the point where Mr Pratten got out of the car and was asked by bystanders to stay away, her emotional state was one not just of rage, but of anger and being upset. [36] She accepted the description of this as rage and other emotions on top of rage. [37] She said when the police arrived, she had calmed down by then. [38] She accepted that she connected their presence with what had just happened with her father. [39] She said that as a consequence, she was upset and confused and it made her angrier with her father, as well as generally angrier. [40] She accepted that it was not the first time where she had been arrested. [41] Arrest and Removal 1. The Plaintiff stated that she then saw a female police officer come to her door, open it, try to get to the ignition out, take her belt off and drag her out of the car. [42] It was accepted that this was Senior Constable Jenna Marshall. [43] The officer said one or two words and she understood that she was not free to go. [44] She stated that she was then grabbed by her right arm straight to the paddy wagon and pushed up against the paddy wagon. [45] At that point, she said that she was being held up by 2 or 3 police officers. [46] She described the police officers as comprising the officer who first placed her under arrest, a male and she thought another female. [47] She recalled the other female police officer opened her phone and said words to the effect of "oh, I've got you now. We're going to get some stuff." 2. The Plaintiff stated that she did not recall anyone telling her that she was under arrest. [48] The Plaintiff maintained that she was not told that she was under arrest when Police first came to her, though she stated that she was told that she "was arrested" prior to her release from custody at Waverley Police Station on 5 July 2015. [49] She stated that she did not recall when she was told, [50] but probably she was told back at the station, but not at the scene at Bondi. [51] She conceded that she did not fully recall but did remember that she was not told she was under arrest at Bondi. [52] This was despite the fact that in her statement of claim at [10], it was pleaded that Senior Constable Marshall said words to the effect of, "Juliette, you're under arrest for assaulting your dad." [53] She maintained her evidence that she did not recall, although that it was possible that Senior Constable Marshall said that to her. [54] 3. She conceded that Senior Constable Marshall was known to her prior to 5 July 2015 and she recognised her. [55] She stated that it was possible that Senior Constable Marshall said words to the effect of "you're Juliette aren't you?" to which she responded "yes," but she could not really remember. [56] She said that she did not recall being advised that she was under arrest for assaulting her father, Timothy Pratten, but it was possible. [57] Search 1. The Plaintiff said that she got searched on the street in the middle of the road whilst she was up against the paddy wagon. [58] She described the search as involving police patting her up and down whilst her hands were against the wagon. She said that it was pretty rough, humiliating and that she was confused about what was going on. [59] The Plaintiff described herself as feeling like rubbish and embarrassed. [60] 2. The Plaintiff described that she felt, "horrible, pretty much, just like nothing." [61] Her face was described as up against the paddy wagon although she was holding her hands up independently on the wagon. [62] She said that as a result of the search, apart from her phone, her car keys were taken. [63] Thereafter, she stated that she was transported to the police station. There she said she remained in the paddy wagon for about 5 minutes before being taken out and escorted upstairs, walked down a hallway really roughly and put into a cell. [64] She confirmed that she was "kinda struggling a little a bit to loosen the grips of them." She also stated that she experienced pain in her arms. [65] With reference to the time that she was being searched by Police, she conceded that she said some "unsavoury language" towards Officer Marshall and made certain threats. [66] She stated that she could not recall exactly. [67] She accepted however that she may have said all sorts of things. [68] 3. In cross examination the Plaintiff conceded that she was aware before being placed on the wagon that the reason that the police were there was because of what happened between her and her father. She stated that she understood that she was arrested because she assaulted her father and also because she drove off as an unlicensed driver. [69] She conceded that she understood those things before she was searched beside the paddy wagon. [70] She also acknowledged that the search on the side of the paddy wagon was a brief pat down. [71] She accepted that in her experience, one of the effects of breaking the law was arrest and conveyance to a police station. [72] 4. The Plaintiff stated that Senior Constable Marshall dragged her out of the car by her arm and took the keys out of the ignition. [73] She stated that the keys were removed from the ignition by Senior Constable Marshall when she grabbed her arm. [74] She did not recall Senior Constable Marshall stating to her that she had to get out of the motor vehicle. [75] The Plaintiff conceded that at the time she was being searched, she was loudly protesting to the police officers by swearing at them. [76] She stated that this probably commenced when she was sitting in the vehicle on the side of the road whilst Officer Marshall was speaking to her. [77] She further conceded that from that moment forward, she continued to verbally abuse the police officers [78] because of the way that she was treated, being forcibly removed the motor vehicle. [79] 5. The Plaintiff accepted that she did not like the idea of being taken from the motor vehicle. [80] She stated that she resisted the efforts of Senior Constable Marshall to remove her from the vehicle and take her towards what she described as the paddy wagon. [81] She denied resisting the efforts of police to search her on the side of the paddy wagon as her arms were up against the wagon the whole time. [82] She stated that she was going to cooperate with police but it was going too fast and that she was "confused with everything." [83] Her confusion arose because of the way that she was being treated and no one was telling her why she was being arrested, stating:- "they just came up straight away and then just grabbed me and put me against the wagon." [84] Arrival at Police Station 1. The Plaintiff conceded that when the police vehicle arrived at the police station she was left in the vehicle for a couple of minutes, but on the assumption that the video showed that it was only for one minute, she accepted that it was more likely to be accurate that her recollection a 5 minute delay. [85] The Plaintiff said that when she got to the police station, she was removed from the vehicle, "it was fast; they – legit – just grabbed me and ripped me out." [86] 2. The Plaintiff conceded that in the hallway she engaged in the physical struggle with Senior Constable Tunks and Senior Constable Marshall because she was physically struggling to get out of their arms as they were holding her so tight that she was in pain. [87] She stated that she was not trying to move away, but only to try and loosen their grip so that she could be more comfortable. [88] 3. When the Plaintiff was placed in a cell she stated that she was pushed into the wall and could not hear very much as her face was against the brick wall. [89] She said that her face was against the brick wall for about 10 seconds. [90] At that point, she described that it felt "really bad, painful." [91] Emotionally, she described being "pretty upset, kind of scared, and so confused, but very upset." [92] She accepted that she used foul language and may have spat on the Police. [93] 4. Whilst in the cell, she said that another search occurred and she was pushed and held up against the wall. She said that her head and her body were held and that she was not aware of the reason why a search was taking place at that time. [94] She stated that she probably could have asked why she was being searched, but she could not recall the conversation. [95] After being placed against the wall she stated that the male officer asked her to pull out her pockets which she did and then female police officers came in and held her down and searched her again. She described those officers as being on the street where she had parked her car. [96] When the search was conducted, she stated that she was patted down. The officers placed their hands around her waist whilst pulling her pants down, and they were holding her hair over her head and moving her arms all the way back. [97] Consequently, she stated that some of her hair fell out. [98] The Plaintiff described that as a consequence, she felt like nothing, very upset and in a lot of pain. She stated that she tried to get out, however, they pushed her arm higher. [99] She conceded struggling to try and get the officers to loosen their grip, although she was not seeking to get out of the room. [100] So far as her right arm was concerned, she described being pulled back and pushed up. It being really painful which she could not move much, if at all. [101] The Plaintiff described the experience as being pretty humiliating. [102] 5. She accepted that she made threats to police to instil fear in them and that she felt intimidated by the police. [103] The Plaintiff stated that the male officer initially gained her trust by speaking to her nicely and calmly and he did not intimidate her. She described the male police officer speaking to her "like a normal person…" [104] However, she stated that he breached her trust by letting the female officers who she felt intimidated by, search her. [105] 6. This was a male officer who was not at the street when she was being searched against the paddy wagon. [106] She described this police officer as initially having treated her nicely, up until he threw her across the room. [107] It is not in issue that this was Senior Constable O'Brien. [108] 7. The Plaintiff stated that she was thereafter left in the cell by herself; she did things that she accepted were horrible. [109] Eventually, she stated that she was charged with a number of offences; however she declined to participate in a police interview and was bailed. [110] 8. The Plaintiff was then shown video footage included as part of Exhibit C. In Clip 24 at 38 seconds, she identified the sequence showed where officers pulled her hair before she was taken into the cell. [111] She described the footage in Clip 9 as showing where she was in the cell and her head was being pushed against the wall and she was patted down. In Clip 9 at 2.10, she described it showing the point at which she emptied her pockets. [112] At 3.41, she described the recording showing the point where an officer was holding one of her arms down and another up, but she said that she did not know. [113] At 4.20, she stated that the video showed one of the officers was holding her arm right up and was grabbing her hair whilst pushing her head down and she conceded that they were searching her. [114] At one point she described that she was gesturing to the police officer because she was extremely angry with him because he had been really nice and then completely turned on her by hurting her. She stated that she started to be really rude to him and getting in his face and he pushed her back into the mattress. [115] She described that he pushed her onto the mattress twice. [116] This was at approximately 4.57 on the clip. [117] She described that the police officer pushed her in the chest twice really hard into the mattress. She stated that she felt pain in the chest. She said that she felt embarrassed and that she felt like "crap" and "like nothing". [118] At one point, she accepted that she put the mattress up against the door because she did not want anyone to look at her and she also placed some tissue paper on the CCTV camera. [119] Later she stated that she had not taken Ice or any other drug because she was pregnant at the time. [120] 9. The Plaintiff accepted that she swore and spat at police and conceded that her behaviour was "disgusting." [121] The Plaintiff accepted that she should not have spat at police. [122] She stated that while she was angry with her father who called the police on her, she did not regard it as his fault, but rather her fault for doing the "bad thing" and she "was even more angry at" herself. [123] She accepted that on one occasion, her head was held and pressed against the wall immediately after she spat on police. [124] When asked where that was, she said that it was probably when she was in the cell and that she was not quite sure. [125] She stated that it was hard to remember, as everything was going very fast that she was being ripped from side to side. [126] She stated that her attitude towards to police inside Waverley Police Station was one where it was apparent that she was not going to cooperate with officers who were "not really nice to her." [127] She acknowledged that one of the points of conflict was that the male officer allowed two female officers, who were at the arrest scene, to enter into her cell and she objected to this. [128] She described feeling intimidated by them but nevertheless, she understood that it was police practice for female officers to search a female prisoner. [129] She acknowledged that she was told that the search would have to be done by female officers and she understood the purpose of the search was to make sure that she did not have anything on her as there was a question about whether she had drugs on her which was why she was asked to turn out her pockets. [130] 10. The Plaintiff accepted that immediately before the male officer moved her back towards the bed inside the cell, she had made her way to the door of the cell with her right hand extended and finger point and swearing loudly. She said that she was speaking in an aggressive manner because he took her trust and then he pushed her to the other side where the mattress was. She accepted that she advanced towards the officer who was standing toward to the door and when he moved her back, he moved her back away from the door of the cell. [131] On the second occasion, she said that she did not get close and did not mean to poke the officer. [132] She stated that the reason that she advanced towards him was to make it very clear how angry she was with him. [133] At that time she accepted that she advanced towards the officer whilst he was standing near the door. [134] She accepted that the officer moved her back a second time but did not accept that he did so by physically moving her back towards the bed. [135] The Plaintiff accepted that she was removed from the cell and placed in the dock because she had placed the mattress up against the door and tried to cover up the camera. [136] She also conceded that she was taken to the custody area and asked some questions before her release by an officer behind the custody desk. [137] 11. At one stage the Plaintiff conceded that she was asked to participate in a breath analysis of some kind, which she declined as she was not going to cooperate. She stated that she didn't really trust anyone and was getting "treated like crap." [138] 12. The Plaintiff accepted that when she was at the Police Station, she was advised that she was entitled to have a support person present and that Ms Brady Willis may have attended. [139] She said that after her arrest, an officer explained her rights as she was asked to sign a document acknowledging those, [140] and inserted in her own handwriting "fuck this" rather than affixing a signature. [141] She subsequently stated that she remembered seeing Brady Willis at the Police Station on 5 July 2015 and said that this was "at the very, very end, probably." [142] She did not recall whether she spoke to Brady Willis. [143] She stated that the presence of the support person calmed her down a little on 5 July 2015. [144] 13. The Plaintiff stated that she was subsequently charged and released on bail. [145] When released, conditions of bail were explained to her. [146] She said she did not recall being charged with kicking Senior Constable Tunks in the shins. [147] 14. She stated that she was not angry when she got back to the refuge as they had talked to her and she went straight to bed. [148] Exhibit D 1. A brief of evidence was subsequently served on the Plaintiff's solicitors and was tendered as Exhibit D. 2. At the time of tendering, the Plaintiff's Counsel advised:- "These documents are tendered in relation to the malicious prosecution claim only." [149] 1. At various points, I drew Counsel's attention to the fact that even though the documents may have been admitted for a purpose other than the proof of the asserted fact, the evidence would be capable to being used for all purposes. [150] Indeed, the contents of Exhibit D, excluding the statements of were referred to in the questioning of other witnesses and ultimately in submissions. 2. After the conclusion of the Defendant's oral case, Counsel for the Plaintiff applied for a limiting order under section 136 of the Evidence Act 1995 in relation to police witnesses who were not called to give evidence and have not given evidence on oath. This would particularly relate to the statements of Constable Sam Palfreyman and Constable David Cameron who were not called to give oral evidence. The basis of the limiting order was that there would not be evidence of the truth of the representations made in those statements. [151] Counsel for the Defendant opposed that order. During the course of argument, I asked Counsel for the Plaintiff for the basis upon which she was seeking to engage section 136. I was advised that the unfair prejudice flows from those witnesses who did not give evidence on oath and weren't the subject of cross-examination. [152] 3. In Fulham Partners LLC v National Australia Bank Limited, Basten JA stated:- "[72] In the present case, there was little risk that the evidence would be misunderstood, its probative value incorrectly assessed or that it would be used illogically. The real basis of "prejudice" was that the appellants were deprived, assuming that rejection would have led the NAB parties to call oral evidence, of an opportunity to establish their case through the NAB parties' witnesses. That is not the kind of "unfair prejudice" to which s 136 is directed. There is no reason to doubt the correctness of the trial judge's decision not to limit the use made of the letters, pursuant to s 136." [153] 1. In Papakosmas v R, Gleeson CJ and Hayne J referred to attempts to limit the use of non-hearsay evidence to one purpose stating:- "[72] [Such an application] amounts to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded." [154] 1. In Timbarr Pty Ltd v Narui Gold Coast Pty Ltd, Barrett J referred to the decision in Papakosmas v R [155] and stated:- "[21] The real issue, it seems to me, is that identified by McHugh J in Papakosmas v The Queen (above) at [91], that is, whether there will, in the words of Hunt CJ at CL in R v BD (1997) 94 A Crim R 131 at 139, be a danger of prejudice "because there is a real risk that the evidence will be misused by the jury in an unfair way". In the present context of trial by judge alone, the question will be whether absence of cross-examination and of the consequent lack of opportunity to test and challenge entails a real risk that a process of fact finding unfair to the defendant will result – or, putting it another way, that the finder of fact will make a decision otherwise than on a basis logically connected with the issues in the case." [156] 1. Ultimately, the application under s 136 was not pursued. [157] Timothy Pratten 1. The Plaintiff's father, Timothy Pratten gave evidence that at the time of the events of 5 July 2015, he was residing at, Darling Point. He believed that the Plaintiff was residing at a hostel or a type of care centre on Bondi Road. [158] He stated that in the latter part of 2014, he purchased a car for his daughter to learn to drive and ultimately have. [159] He stated that in the first week of July 2015, he arranged to give the Plaintiff some driving lessons. [160] He stated that in the last lesson preceding 5 July 2015, he arranged for the Plaintiff to come the following day and that they would speak in the morning and arrange time around 10:30am to 11:00am. Those plans were followed through and he picked up the Plaintiff as agreed. [161] On that occasion, he noticed the Plaintiff was, "fine, good, well dressed, clean, talkative, happy and everything was good." [162] He was aware that the Plaintiff had some history of drug use and made observations to this end. On the day before the drive, he observed that the Plaintiff was, to use his words, "was excellent, fine, normal." On the morning that he picked her up, she was also "fine and normal." He stated that there was nothing to suggest in her demeanour that she was suffering from anything. On this occasion, they drove to various locations including Whale Beach. 2. Mr Pratten recalled that the Plaintiff was turning and another car was coming along quite fast and although he could not recall whether horns were sounded, the Plaintiff became quite agitated. [163] Thereafter, they proceeded to look for a place to eat. [164] Ultimately, they went to McDonald's at Kingsford at around 3:00pm or 4:00pm. He said that they stopped for a short while, making purchases, but the Plaintiff wanted to go back to where she was staying and the journey continued. Thereafter he observed that the Plaintiff was progressively getting worse in her demeanour. He described that Plaintiff was abusing him and it was a barrage of things that he could not remember. He stated that the food went on the dashboard, some went on him and some went in the back seat. [165] At that point, he asked the Plaintiff to stop to see if things could settle down, but she wanted to go into a back street and not the main road. He recalls trying to talk to her but she was angry. [166] The car eventually did stop and he got outside the vehicle to get the learner plates off. The Plaintiff locked the car and started to drive off. She then stopped and got out of the car and did some "bunny-hop type things" and was yelling at Mr Pratten. He then observed that her windscreen wipers were going and the Plaintiff could not work out how to stop them and at that point, she was trying to stop the wipers after leaving the car. [167] 3. Mr Pratten said that he walked towards the Plaintiff, stood beside her and showed her where the windscreen switch was. By that time, she had moved closer to the steering wheel and he noticed that the car engine was on. He reached in to get the keys, but at the time, Plaintiff was sitting back in the car, whilst he was standing at the drivers' door and she drove off. He stated that when he went to get the keys, the Plaintiff struck him with "a push, shove or thump" with an open hand somewhere in the ribcage, but he received no lasting injuries. [168] He stated that the reason why he attempted to take the keys out of the engine was because he thought that the Plaintiff was driving erratically, the car was double parked and he thought it was the sensible thing to do. [169] He waited thinking that she might drive down the end of the street, stop, turn around and come back, but she did not. Consequently, the contacted the police and stated that he did so because the Plaintiff was a learner, anything can go wrong and he hoped to draw a line in the sand. [170] His concern was the Plaintiff may have a collision or hurt someone or hurt herself. He stated that he did not have any concern for his own physical well-being. [171] The call that he made to police was tendered as Exhibit D. Mr Pratten acknowledged that it was he who made the call shortly after the Plaintiff had driven off. 4. In the call, Mr Pratten stated to police:- "Hi, look umm, it's ah, I have been teaching my daughter to drive a car. And I suspect that she has had some Ice or that she is on some drugs now. She has become very violent and has been driving erratically, crazy, thrown me out of the car, umm and she has just taken off. She is only learners plates. She is all over the place. She is punching windows, throwing food around. Very dangerous." [172] 1. Later in the call, Mr Pratten stated:- "Ah. I am getting away because she chases me up onto the footpath. I mean seriously, there is a whole bunch of people around just watching what is going on. It is crazy." [173] 1. When Mr Pratten was asked whether the Plaintiff had any weapons, he responded:- "No. No. No but she is coming down off something. She is staying at refuge. At Bondi Road. Because she can't stay at home because she is too violent. I forget what it is, Bondi Road." [174] 1. In evidence in chief, Mr Pratten stated that he told the 000 operator about the drugs because the Plaintiff had taken drugs in the past. He did not see her take drugs but he assumed it was the effects of drugs, notwithstanding the observations that he made when he picked her up. [175] In the call, Mr Pratten also stated that he was going to get into a taxi a go home. In evidence however, he stated that he could not remember whether he went home or straight to the police station, but thought that he went straight to the police station. [176] He stated that he went to the Rose Bay Police Station. It was acknowledged by the parties that the call was made at 3:59pm. [177] A notebook statement was taken from Mr Pratten by police at Rose Bay Police Station and is contained within Exhibit D. Mr Pratten acknowledged that at that time the events were fresh in his memory and it was also acknowledged that he had provided the police with a statement which was type written. [178] 2. In further cross-examination, Mr Pratten conceded that by July 2015, he had provided information to Police about his fears about his daughter for the purposes of the charge of stalk and intimidate. [179] 3. In the statement dated 5 July 2015, taken at Rose Bay Police Station at 7:57pm, Mr Pratten stated that:- "I called the police not for any reason other than I considered her driving unlicensed without supervision, very dangerous but do not have any fears for my safety as Juliette does not have the keys to my unit. I am happy for Juliette to return living at my address as long as she commits to getting off the drugs and enter rehabilitation." [180] Senior Constable Monique Tunks Call 1. In the Defence case, Senior Constable Monique Tunks was called to give evidence. On 5 July 2015, she was attached to Waverley Police Station performing general duties and attended the location at Kenilworth Street, Bondi Junction where she observed the Plaintiff. Senior Constable Tunks created a document dated 19 July 2015 as to the facts pertinent to the matter. [181] She stated that she attended the scene on the occasion in question following a VKG job broadcast and noted the young person was forcibly removed from her vehicle by police, who was later placed under arrest, cautioned and searched and forcibly placed into the rear of a police caged vehicle. [182] Arrest and Removal 1. Senior Constable Tunks stated that Senior Constable Marshall was already at the scene when she arrived with Officer Cameron. [183] When she arrived, she got out of her car and walked over to where the Plaintiff was being removed from the car. [184] Senior Constable Tunks stated that she could not hear any words that were being said between the Plaintiff and Senior Constable Marshall and that her vision was obscured by the car door of the vehicle which the Plaintiff was in prior to her being removed. [185] She observed Senior Constable Marshall lean over, take the Plaintiff's seat belt off and pull the Plaintiff by the arm and remove her from the vehicle. [186] She stated that the Plaintiff was not complying with directions to get out of the car and that Senior Constable Marshall was pulling her out. [187] Although she stated that she heard the arrest occur when the Plaintiff was out of the car, she later clarified this by saying that she heard the Plaintiff state, "what am I under arrest for? What am I under arrest for?" and she assumed that Senior Constable Marshall had told the Plaintiff that she was under arrest. [188] She stated that she recalled Senior Constable Marshall cautioning the Plaintiff but could not recall the exact words used. [189] She then gave evidence that the Plaintiff was forcibly placed into the rear of the caged-vehicle by herself and Senior Constable Marshall. [190] In cross-examination, Senior Constable Tunks stated that she was involved in restraining the Plaintiff at the scene including restraining her by holding her arms up against the truck. [191] Arrival at Police Station 1. When they arrived at Waverley Police Station, the Plaintiff would not get out of the caged-vehicle and was refusing and kicking and Senior Constable Marshall took hold of her and pulled her out of the truck. At that point, Senior Constable Tunks said that she was standing at the door of the caged-vehicle. [192] She stated that from memory, the Plaintiff was refusing to cooperate and "kicking and things like that" when Senior Constable Marshall took hold of her and pulled her out of the truck. [193] 2. In her statement, Ms Tunks also stated that when Senior Constable Marshall and herself got into the walkway, she saw the Plaintiff start to kick Senior Constable Marshall in the shins. She saw the kicks connect with Senior Constable Marshall's legs and as a result, the Plaintiff was pushed up against the wall to control her resistance. During this time, the Plaintiff continued to spit at police and at one point spat directly into her face, covering it with saliva. [194] As they were walking the Plaintiff, she was spitting at them from side to side. [195] 3. Senior Constable Tunks confirmed that the kicking and the spitting started when they were up the step, out of the van dock area, where the car was parked. [196] Senior Constable Tunks said that it continued from the top of the stairs all the way through. [197] She stated that the Plaintiff was refusing to walk generally, was tensing her body and that Senior Constable Marshall and herself had to use strength to get her up the steps and to get her into the police area. [198] 4. Senior Constable Tunks confirmed that both herself and Senior Constable Marshall were involved in pushing the Plaintiff up against the wall. [199] She stated that she had seen the Plaintiff kick Senior Constable Marshall in the legs. [200] She rejected the suggestion that she was placed up against the wall in retaliation for the actions she believed occurred on the part of the Plaintiff. 5. Thereafter Senior Constable Tunks stated that the Plaintiff was placed into a cell and forcibly searched again for her own safety. During the search the Plaintiff was said to resist and fight police holding her down. [201] Senior Constable Tunks considered herself to have participated in the search of the Plaintiff. [202] She stated that the Plaintiff resisted the search but she and Senior Constable Marshall were able to do a cursory search of her clothing. [203] 6. Senior Constable Tunks was then taken to paragraph 9 of her statement which records:- "Once the young person was let go, Acting Sergeant O'Brien remained in the cell and attempted to speak with the young person. During this conversation, the young person became aggressive to Acting Sergeant O'Brien by screaming and point in his face. She used her index finger and pointed to Acting Sergeant O'Brien's face a third time, connecting with his nose. Acting Sergeant O'Brien then issued three approved check drills to the young person in order to stop her from assaulting him again. The young person was then locked in the cell." [204] 1. Senior Constable Tunks was asked of the words that were used by the Plaintiff when she screamed at Senior Constable O'Brien and she stated "curse words in general – it was "fuck" and alike." She stated that the words were used more than once and that the volume was that of a scream. [205] 2. In oral evidence Senior Constable Tunks stated that after being placed in the cell, the Plaintiff was searched again by Senior Constable Tunks, Senior Constable Marshall and Senior Constable O'Brien. [206] Senior Constable Tunks denied that she used force to place the Plaintiff's head against the wall. [207] Senior Constable Tunks denied the suggestion that search in the cell was no different to the search at the scene. [208] She stated that it was much more thorough. [209] She could not remember the movements of Senior Constable O'Brien in relation to the Plaintiff's right arm being extended behind her. [210] She could not recall in her first attempt to conduct a search of the Plaintiff, whether her head was pushed up against the wall, [211] though she accepted that her body was forced against the wall. [212] She said that as the Plaintiff was resisting the search in the cell, Police had to move with her in the hope of controlling her to allow the search to continue. She said that there were not two independent searches. [213] 3. After being showed various segments of the CCTV containing within Exhibit C, Senior Constable Tunks stated that she could not recall exactly why Police did not leave the Plaintiff in the cell and shut the door. [214] She also could not recall why the Plaintiff's head was pushed up against the wall. [215] Senior Constable Tunks conceded that Senior Constable Marshall had the Plaintiff's hand at the rear to the Plaintiff's head up against the wall. She stated that it was not her hand. [216] She had earlier stated that the Plaintiff was continuing the resist. [217] Senior Constable Tunks did not accept that the Plaintiff was tensing because of pain. In re-examination, Senior Constable Tunks stated that she did not believe that she was spat on by the Plaintiff in cell 4. She confirmed that the purpose of the statement that she had prepared was to be used as evidence in the Local Court. [218] Senior Constable Phillip O'Brien 1. Senior Constable Phillip O'Brien stated that he was working at Waverley Police Station on 5 July 2015 and was a custody manager at the time. As a result of receiving information at Waverley Police Station, he attended the van dock area below the police station to offer assistance to officers who were transporting the Plaintiff. After conversing the Senior Constable Marshalls and Tunks, he then went back to the custody area and ensured that the path was clear. He recalls seeing the Plaintiff when she was taken out of the truck. [219] He described himself as leading the way. [220] 2. Senior Constable O'Brien stated that as he was making the journey, he observed that the Plaintiff was struggling with Senior Constable Tunks and Marshall and as he looked back, he saw that she was kicking Senior Constable Tunks and making contact with her shin area and was also spitting at her. [221] He stated that whilst it is the usual practice for an arrested person to first be placed in the dock area before being taken into the cell, he was informed by Senior Constables Marshall and Tunks that a cursory search of the Plaintiff had been performed but not a detailed search and if that was to occur and the Plaintiff was resisting, it would be better to have it in the female cells. [222] He stated that he made that determination [223] that the purpose of the search was to ensure officer safety, to ensure the Plaintiff's safety and anyone else who will come into contact with the Plaintiff [224] 3. Senior Constable O'Brien stated that he observed that the Plaintiff was irate and was struggling with the arresting officers and he wanted to try and calm her down. He told the officers to let her go and that he wanted her to calm down. [225] He stated that the Plaintiff sat down on the bed and he explained to her that a further search would be conducted and that he wanted her to cooperate and he wanted her just to calm down. He stated that the Plaintiff removed a piece of jewellery and threw it at the wall. [226] She then started to turn out her pockets and she said, "Yep. Just show me if there's anything else." [227] Senior Constable O'Brien then told the Plaintiff that the officers were going to search her again. She responded that she did not want the two female officers searching her again. 4. Senior Constable O'Brien responded by saying that they were going to search her but if she cooperated, it would just be easier and force would not be required. [228] He gave evidence that the Plaintiff then jumped up and started going towards the door and started abusing the officers and advanced towards them. Senior Constable O'Brien said that he took hold of the Plaintiff to stop her from doing that, but she started to threaten him and the female officers. He then took hold of her right arm and applied an arm bend by directing the body forward and pulling the arm up and back to immobilise her. Senior Constable Tunks then took hold of the left side and he asked Senior Constable Marshall to affect the search. [229] 5. Senior Constable O'Brien described the arm bend technique as a form of weapon-less control. Senior Constable O'Brien stated that during the search, the Plaintiff started spitting again and Senior Constable Marshall tried to direct her head away. [230] 6. Once the search was completed, Senior Constable O'Brien released the Plaintiff and told the other officers to leave, at which point, the Plaintiff started to abuse him and poke a finger towards his face. The Plaintiff then poked him directly in the nose and immediately and instinctively, Senior Constable O'Brien issued a one handed check drill to her front to create distance and get her away. He then backed towards to the entrance of the cell. The Plaintiff then came back towards him again and he issued another check drill and also stepped backwards to create space and exited the cell. [231] 7. Senior Constable O'Brien informed the Court that "if someone enters that space, does not move away when directed" then he is taught that a check drill should be issued if he believed that he would be assaulted. [232] He stated that he did not issue a warning before issuing the first check drill as it was instinctive from being poked in the face, but he did issue a warning before the second check drill. [233] He conceded that the time between the warning and the second check drill was very short as the Plaintiff immediately stepped towards him. [234] He stated that he then told the Plaintiff to step back before issuing a third check drill, the purpose of which was a create a reactionary gap and create space. He stated that he was about to close the door and needed for her to step away in order to safely close the door and get the bolt across the door. [235] He said that the aim of the third check drill was to prevent the Plaintiff's hand from being caught in the cell door as it was closing. [236] 8. After securing the door, Senior Constable O'Brien then went to the custody area, saw that the Plaintiff had moved a mattress against the cell door and tried to place wet toilet paper on the CCTV camera. He then arranged for the Plaintiff to be brought into the dock area where she could be observed directly, whilst creating a custody management record. [237] He stated that with the change of location, the Plaintiff maintained her manner of behaviour, being belligerent, abusive and irate. [238] 9. So far as offences are concerned, he stated that one of the offences with which the Plaintiff was charged related to him. [239] In that regard, he conceded that he made a statement as part of Exhibit D. The witness was then taken to Exhibit D, particularly to the custody management record which he said that he completed up until the time that Sergeant Jennifer Cracknell came on duty. He stated that he was to be relieved just prior to 5:30pm. [240] He stated that at 7:33pm a notation was made in the record that the Plaintiff's Part 9 rights were read in full in the presence of the support person, whilst the Plaintiff yelled "shut the fuck up." He noted by reference to page 6 of the custody management records that he was the accepting officer who had received the Plaintiff into custody and further, that a Cautionary and Summary Part 9 statement had been created by him, bearing his handwriting. He noted that he signed that document, that the Plaintiff had refused to sign and said "fuck this." The support person signed an acknowledgement in relation to her role. By reference to the video recording in Exhibit E, he observed the following:- 4:41:55: The time that he addressed Officer Tunks and Marshall; 4:42:21: Acting Sergeant O'Brien was climbing the stairs; 4:44:01: The time at which Officer Marshall and Tunks and the Plaintiff were in Cell 4. Acting Sergeant O'Brien appears at 16:43:28 16:43:48: Senior Constables Marshall and Tunks take the Plaintiff into a cell, at which point they inform Acting Sergeant O'Brien that she had not been fully searched. 1. In cross-examination, Senior Constable O'Brien accepted that the only time that he saw the Plaintiff kick someone was when he got to the end of the corridor approaching cell 4 and turned to face towards the cell. [241] Although he initially had identified Senior Constable Tunks as the person who was kicked, when taken to his statement, he accepted that he had stated that it was Senior Constable Marshall. [242] He accepted that he did not remember it correctly and it was in fact, Senior Constable Marshall. [243] In this respect he said that he saw the Plaintiff raise her leg and did a horse kick that struck the shins of Senior Constable Marshall. [244] He accepted that he did not describe the kick as a horse kick in his statement contained in Exhibit D, nor in his evidence in chief. [245] 2. The search that was conducted in the cell was said to be for weapons, implements of escape or anything else that might harm the Plaintiff or anyone else. [246] Senior Constable O'Brien accepted that when he searched the Plaintiff, he did not tell her that he was searching to see if she had any drugs on her but rather was searching for any property that she may have on her. [247] Acting Sergeant O'Brien accepted that she emptied her pockets twice and was wearing tight clothing. [248] He also accepted that the Plaintiff had told him that she had already been searched. [249] He also accepted that the Plaintiff was not showing any signs of self-harm, did not see her with any object and that there was CCTV in the cell and the Plaintiff did not have bulging pockets. [250] 3. Senior Constable O'Brien accepted that after he became physically involved with the search in cell 4, that the Plaintiff's foul language was directed him [251] and that she hadn't been up until that time. [252] He also accepted that he recorded in the custody management record that the Plaintiff was not intoxicated. Senior Constable Jenna Marshall Call 1. Senior Constable Jenna Marshall was posted to the Eastern Suburbs Local Area Command on 5 July 2015 and was attached to the Waverley Police Station. On that day she was rostered to work with Constable Sam Palfreyman performing general duties. Over the course of performing those duties, she responded to a VKG radio broadcast in relation to Juliette Pratten. [253] In that VKG recording, the operator states as follows:- At 0:00: "No problem. Request for Eastern Suburbs car thanks keep a look out for Charlie Yankee November 75 Uniform it is a red Volkswagen polo at Flood Street Bondi Road heading towards Old South Head Road, vehicle is being driven by the informant's daughter a Juliette Pratten born in '97 She is only on her learners and she is alone in the vehicle. Informant has been teaching her to drive and it appears that she is ice affected. She is running red lights doing 30kms - I'm hoping this is a typo - 300kms over the speed limit punching the windows, throwing food around the informant has been punched and spat on. And apparently she threw him out of the vehicle. Informant is returning to his home address at Darling Point. Female possibly on the way to the Women's Refuge on Bondi Road where she has been staying. Possibly a car to patrol around that area thanks and might get a Rose Bay car to attend 10 Loftus Street, Darling Point to see the informant." At 10:15: "No worries, just some information for cars in regards for keep a lookout for red Volkswagen polio Charlie Yankee November 75 Uniform the female on board Juliette Pratten is very well known on the system - has a number of warnings, maybe an illicit drug user. If she is caught place handcuffs on tightly as the POI will slide her hands out - consider double hand cuffing. Level of resistance wrestle, strikes, kicks wrestling, will be argumentative and disrespectful to police and will spit at police if - cars to take caution." At 13:06: "Any [??] available Eastern Beaches car thanks possibly in regards with keep a look out for this red polo, just looking at last event she had a domestic that she resides with a person on 20 June this year. Address of unit 148 of 29 Gregory Street South Coogee possibly if a car just patrol around these to see if the vehicle might be there." [254] 1. Senior Constable Marshall's evidence was that as a result of receiving a series of information broadcasts on the network, she responded at various times to the information by patrolling for the vehicle in question, driving up different roads and ultimately locating the vehicle and pulling up beside it in the police vehicle known as "eastern suburbs 16" in which she was passenger. [255] After the vehicle came to a stop, she stated that she got out and recognised the Plaintiff. She then knocked on the window to get her attention. The Plaintiff looked up at her and then rolled her eyes. She then opened the door and could hear the engine running. At that point the rear brake lights were on and the rear windscreen wiper was moving. When she opened the door, she asked the Plaintiff, "you're Juliette?" to which the Plaintiff responded "yes." At that point, Senior Constable Marshall was satisfied that it was the Plaintiff. 2. Senior Constable Marshall said that as a consequence of the VKG broadcast, she determined to approach the Plaintiff with caution. She stated that based on the information provided, she had formed the view that the offences were serious. When asked what led her to think that they were serious, she stated:- "The fact that the father had phoned triple-0. Also the broadcast, they were telling me that she was driving, throwing food around, she was running red lights so committing traffic offences. Then she had assaulted her father, she had then kicked him out of the vehicle and driven off by herself." [256] 1. In cross-examination, Senior Constable Marshall conceded that in the Children's Court on 18 November 2015, she was asked whether in relation to the removal of the keys, that was the most important thing. She further conceded that she responded in the affirmative. She accepted that was her evidence and it was more likely to be accurate, bearing in mind it proximity to the events of 5 July 2015. Arrest and Removal 1. Senior Constable Marshall stated that she next said to the Plaintiff:- "Juliette, you're under arrest for the assault of your father, Timothy Pratten. You do not have to say or do anything if you do not want to. Do you understand that?" [257] 1. Senior Constable Marshall also acknowledged that Mr Pratten was nowhere in sight and according to the VKG recording, there was notification that Mr Pratten had been contacted by police and he was on his way to Rose Bay Police Station. [258] 2. Senior Constable Marshall accepted that the VKG recording indicated that a police vehicle was to attend Mr Pratten's home at Loftus Street in Darling Point and that the Plaintiff's address was at what was described as a Women's Refuge or an address at South Coogee. [259] 3. After being told that she was under arrest she stated that the Plaintiff responded by saying "What the fuck? That fucking weak fuck." [260] As a consequence of that response, Senior Constable Marshall stated that she formed the view that the Plaintiff was rather aggressive. [261] Senior Constable Marshall then stated that she directed the Plaintiff to get out of the car, however she did not do so. [262] She stated that she then picked up the phone. [263] 4. The Plaintiff was told by Senior Constable Marshall to get off the phone and to hop out of the vehicle. [264] She stated that at that point, her understanding was that she had telephoned her father. [265] She stated that the Plaintiff was still very aggressive and very angry towards him. [266] 5. Senior Constable Marshall stated that the Plaintiff responded that she could not get off the phone and the hand brake was not on the vehicle, before putting the hand brake on. Senior Constable Marshall then warned the Plaintiff that failure to comply with her direction may be an offence and that she needed to get out of the vehicle. [267] The Plaintiff thereafter responded "fuck off. I'm not getting out." Consequently, Senior Constable Marshall stated that she leant over, undid the seat belt and removed the Plaintiff from the vehicle. [268] She stated that she removed the Plaintiff by pulling her out, by grabbing hold of her and then turning her around and putting her up against the police vehicle. [269] The Plaintiff was described as not willing to be removed from the vehicle. [270] 6. Senior Constable Marshall stated that she did not seize the Plaintiff's phone and nor did she recall whether any other officers did so. [271] She did not recall anything about a screensaver with a unicorn on it. [272] She stated that the reason that she was searched was to see if she had anything that could harm her or anyone else. [273] 7. Senior Constable Marshall stated that the reason she removed the Plaintiff from the vehicle was to conduct a search. [274] She stated that she was assisted in that search by Constable Palfreyman. [275] Senior Constable Marshall could not recall the other officers who assisted in the search of the Plaintiff but described it as an ordinary pat-down search in which nothing of interest was found. [276] 8. After she was searched, the Plaintiff was then placed in the rear of the police caged-vehicle [277] before being conveyed to Waverley Police Station. [278] She stated that on route she would have confirmed with custody that it was okay to return with the Plaintiff on-board. [279] Thereafter, Senior Constable Marshall stated that she arrived into the van dock at Waverley Police Station after segregating her firearm. She then asked the Plaintiff if she would get out of the vehicle, to which the Plaintiff is said to have responded "fuck off." [280] Removal and Search 1. Thereafter, Senior Constable Marshall waited for further officers to come, the door was then opened and the Plaintiff was removed. She was then taken upstairs to the custody area and walked into a cell. As she was being escorted into the cell, Senior Constable Marshall described the Plaintiff as still very angry, yelling and swearing and would kick her leg back like a cow-kick in her direction and repeatedly came into contact with her leg. She stated that the Plaintiff was also spitting a lot and continually swearing at police as she spat and she had spat on Senior Constable Tunks. Senior Constable Marshall stated that she then placed the back of her hand on the rear of the Plaintiff's neck to force her against the brick wall. The spitting on Senior Constable Tunks was to her left cheek. [281] Senior Constable Marshall stated that the purpose of placing the Plaintiff against the wall was to prevent her from further spitting. Senior Constable Marshall said that although the Plaintiff continued to spit, she no longer spit on either herself or Senior Constable Tunks. [282] She stated that the Plaintiff was placed up against the wall to create a reactionary gap to ensure that when they let go of her, they had some reaction time to remove themselves from the cell and to ensure that the Plaintiff could not assault the Police officers further. [283] Senior Constable Marshall described that whilst in the cell, Acting Sergeant O'Brien asked them to leave [284] and subsequently asked them to return. [285] 2. On their return, they conducted a search of the Plaintiff. [286] Senior Constable Marshall described the search as involving a proper search to make sure the Plaintiff was not concealing anything in her garments. [287] This search was described by Senior Constable Marshall as being more thorough. [288] During this period, the Plaintiff was described as yelling abuse, swearing and at one stage did say, "I'll rape every hole in your body, you'll fucking regret this. I'll never forget who you are." [289] After the search, she stated that she was responsible for the preparation of the charges. She identified Exhibit D as the brief of evidence that she was responsible for preparing. [290] She stated that when she prepared the brief, she sent it to the Defence and Prosecution. She said that this was done two weeks before the initial hearing date. [291] Senior Constable Marshall stated that she attended Court for the hearing, [292] however she did not have conduct of the hearing. [293] Charges 1. The Plaintiff was charged and issued with Court Attendance Notices in relation to the seven offences. These are described as follows:- 1. Learner not accompanied by driver/police officer/tester – r 15(1)(A) Road Transport (Driver Licensing) Regulation 2008 2. At 5:30pm on 5 July 2015 at Bondi Junction did resist Jenna Marshall, being a constable in execution of her duty – s 58 Crimes Act 1900 3. At 5:30pm on 5 July 2015 at Bondi Junction did assault Monique Tunks, being a constable in execution of her duty – s 58 Crimes Act 1900 4. At 5:30pm on 5 July 2015 at Waverley did assault Philip O'Brien, being an Acting Sergeant in execution of his duty – s 58 Crimes Act 1900 5. At 5:30pm on 5 July 2015 at Waverley did assault Jenna Marshall, being a constable in execution of her duty – s 58 Crimes Act 1900 6. At 4:06pm on 5 July 2015 at Bondi Junction did when required by Acting Sergeant O'Brien, an officer of Police, to submit to a breath test under division 2 of Schedule 3 of the Road Transport Act 2013 refused or failed to submit to the breath test in accordance with the direction of the said officer – Sch 3 cl 16(1)(a) Road Transport Act 2013 7. At 4:06pm on 5 July 2015 at Bondi Junction did assault Timothy Pratten – s 61 Crimes Act 1900 1. During the course of the hearing, I was informed that on 18 November 2015 before the Children's Court, the Prosecution amended the times in Sequences 2-6 as follows:- 1. Sequence 2: 4:30pm 2. Sequences 3, 4, 5, 6: between 4:40pm and 5:00pm Bail and AVO 1. Senior Constable Marshall stated that she was not involved in the imposition of bail conditions as part of Exhibit 2. That decision is to be made by Sergeant Cracknell. Senior Constable Marshall stated that whilst she created the provisional Apprehended Domestic Violence Order, bail conditions were imposed by the custody manager and she did not assist her in the imposition of those condition, nor was she consulted. [294] 2. Senior Constable Marshall stated that she applied for a provisional Apprehended Domestic Violence Order and it had been authorised by Sergeant Cracknell. [295] She acknowledged that the Order did not prevent the Plaintiff from contacting her father [296] nor approaching him [297] but basically was to prevent her from committing criminal offences against Mr Pratten. [298] The terms of the Order were admitted into evidence. [299] 3. Senior Constable Marshall gave evidence that she created the fact sheet which she served with the police brief, she attended the Court hearing and gave instructions as the officer-in-charge, gave evidence in the hearing herself and arranged for witnesses to attend. [300] Senior Constable Marshall stated that she also remained at the Court for the balance of the hearing. [301] ASSESSMENT 1. Whilst I accept the Plaintiff generally endeavoured to be honest, I was not satisfied that she was at all times reliable in her recollection. It was clear she harboured resentment over the circumstances in which she found herself. She conceded that she was angry and confused. Her temperament was such that she had little regard for the officers with whom she interacted or the processes they were undertaking at the time. I am satisfied that this in turn affected her reliability in terms of recalling events. 2. Mr Pratten in his oral evidence sought to downplay the significance of the circumstances that led him to call police on 5 July 2014. Whilst I accept that he rang police out of concern over the Plaintiff's condition and driving I do not accept his description of the assault in oral evidence accurately relays the circumstances at the time as he experienced them. 3. Senior Constables Marshall, Tunks and O'Brien each impressed me as honest and generally reliable in their accounts. Whilst in some respects their recollections may have faded since the events in question I did not sense they sought to do anything other than offer genuine accounts as best they could. False Imprisonment 1. The Plaintiff's claim for false imprisonment was based on an allegation that she was unlawfully arrested on 5 July 2015 at about 4:25pm, until she was released from police custody at approximately 9:25pm. [302] It was not in issue that the Plaintiff was imprisoned between approximately 4:25pm and 9:25pm on 5 July 2015. It was further conceded in these circumstances that the onus to establish lawful justification of the imprisonment rested with the Defendant. [303] The parties accepted the resolution of that issue depended upon whether the Plaintiff's arrest was lawfully justified pursuant to section 99 of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW) (the '2002 Act'). Imprisonment following lawful arrest establishes a prima facie lawful authority. [304] It was not submitted by the Plaintiff that false imprisonment would arise in circumstances where the Defendant established a lawful arrest. 2. In this case it was conceded by the parties that there were reasonable grounds for Senior Constable Marshall to suspect that the Plaintiff committed the offence of assault against Timothy Pratten, thereby meeting the requirements under s 99(1)(a) of the 2002 Act. [305] The question on which the parties positions differed was whether Senior Constable Marshall effecting the arrest was satisfied that the arrest was reasonably necessary for one or more of the following reasons:- 1. To stop the Plaintiff committing or repeating the offence or committing another assault on Timothy Pratten (within the terms of s 99(1)(b)(i) of the 2002 Act); or, 2. Because of the nature and seriousness of offence of assault on Timothy Pratten (within the terms of s 99(1)(b)(ix) of the 2002 Act). [306] 1. The Plaintiff submitted that the Court should bear in mind, in the exercise of the power of arrest, the section involves taking away the liberty of the subject and the common law has for centuries closely guarded the liberty of the subject. Further attention was drawn to the fact that principles of statutory interpretation apply to statutes authorising the detention of a person. In particular, in Zaravinos v State of New South Wales, Bryson JA, with whom Santow AJA and Adams J agreed, said that:- "[23]… A statute which authorises the detention of a person must be strictly construed, because the law places a high value on personal liberty: see Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 292 and 296 (Mason and Brennan JJ); Smith v Corrective Services Commissioner of NSW [1988] HCA 49; (1980) 147 CLR 134 at 139." [307] These principles are accepted. 1. The Defendant, for its part, drew attention to the decision of the Court in State of New South Wales v Robinson, [308] where the Court considered the meaning of the term "necessary" in a previous version of s 99(3) of the 2002 Act. The Defendant argued that the enquiry required the Defendant to establish both objective and subjective elements. [309] 2. In State of New South Wales v Randall, Basten JA referred to the three requirements for a valid arrest in the following terms:- "The validity of an arrest without a warrant turns on the satisfaction of three criteria. First, the officer must suspect on reasonable grounds that the person is committing or has committed an offence. Secondly, the officer must be satisfied that it was reasonably necessary to arrest the person for any one of a number of reasons, including (i) to stop the person committing or repeating the offence or committing another offence, (iv) to ensure that the person appears before a court in relation to the offence, and (viii) to protect the safety or welfare of any person (including the person arrested). Thirdly, s 201(as then in force) required that a person arrested be informed of the reason for the arrest. It was assumed that satisfaction of each criterion was a condition of the validity of the arrest. [310] (citations omitted) 1. Thereafter, his Honour stated:- "[13] There is a further important distinction to be drawn between the nature of the three requirements. The first has two elements, namely the suspicion held by the arresting officer and, secondly, there being "reasonable grounds" for the suspicion. Most challenges to the validity of arrests turn on whether or not there were reasonable grounds for the suspicion, the grounds being a matter for assessment by the court. By contrast, both the first limb and the second requirement involve a precondition to the exercise of the power of arrest which depends, not upon objectively verifiable circumstances, but on the state of satisfaction of the officer. Accordingly, unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, or "arbitrary, capricious, irrational, or not bona fide", as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu." [311] (emphasis added) 1. Thereafter, his Honour went on to state:- "[38] This last passage in the reasons, read in the context of the passage set out at [33] above, makes it clear that the judge accepted that the arresting officer did suspect on reasonable grounds that the plaintiff was hindering his investigation, thereby satisfying s 99(1)(a). With respect to the second requirement, the judge was not satisfied that the course of arresting the plaintiff was "reasonably necessary" in relation to that offending. However, the correct question with respect to the second requirement was not what the judge thought, but what the officer thought was reasonably necessary in the circumstances; s 99(1)(b) refers to the officer being "satisfied". The precondition to the exercise of the power is the officer's state of mind." [312] 1. Although Basten JA was in the dissent in the outcome of the case, the principles expressed were adopted by McDougall J at [142]. [313] 2. In this instance, the information which Senior Constable Marshall had, the VKG recording, was that a report had come from the Plaintiff's father, that the Plaintiff was exhibiting violence, including punching and spitting on the informant, and throwing him out of the vehicle. Senior Constable Marshall knew that the Plaintiff was alone in the car, possibly on her way to a women's refuge where she had been staying and also that a car might be required at the informant's address. She also knew that there were a number of warnings on the system about the Plaintiff including the event on 20 June 2015 at a unit at South Coogee. The Plaintiff's father was subsequently contacted and he was going to attend Rose Bay Police Station as requested by Police prior to the Plaintiff's arrest. 3. Senior Constable Marshall was asked about the effect that the VKG broadcast has upon her mind in relation to the person that she was looking for. She stated:- "Q. Senior Constable, what effect had the VKG broadcast had upon your mind in relation to the person you were looking for? A. To approach her with caution. Q. Had you formed any opinion about the nature of the offences that had allegedly been committed? A. Yes. Q. What opinion did you form? A. That they were very serious. Q. What about them led you to think that they were very serious? A. The fact that the father had phoned triple-0. Also the broadcast, they were telling me that she was driving, throwing food around, she was running red lights so committing traffic offences. Then she had assaulted her father, she had then kicked him out of the vehicle and driven off by herself." 1. Senior Constable Marshall accepted that as she approached the Plaintiff, she made no further enquiries as to her sobriety or whether she was under the influence of drugs or any substance. [314] Senior Constable Marshall also accepted that she didn't make any enquiries or have access to the statement of, or any notebook entry from Timothy Pratten. [315] She further did not ask the Plaintiff for her version of events. [316] Senior Constable Marshall accepted that she assessed the seriousness of the assault with reference only to the information provided on the VKG broadcast. [317] Senior Constable Marshall acknowledged that the information provided on the VKG broadcast was second-hand to the effect that the informant had been punched and spat on and as such could amount to a common assault. [318] 2. Senior Constable Marshall was asked about the necessity for the arrest and responded as follows:- "Q. Before you made the announcement of arrest, did you consider any alternative course that you could take? A. I did consider it, however due to the seriousness of the offence and also the, I, to prevent repetition of the offence, I arrested her. Q. And when you speak of repetition of the offence, what was it that you were concerned by? A. The, the assault and how angry she was prior to, like the police message that we received over VKG, so the radio message. … Q. When you speak of repetition of the offence, what was it you were concerned by? A. The, her basically relocating her father and further assaulting him." [319] 1. In cross-examination, Senior Constable Marshall was asked about her knowledge of Mr Pratten's whereabouts prior to the arrest. The transcript records the following:- " Q. When you placed her under arrest, her father, Timothy Pratten, was not in the car. A. That's correct. Q. He was nowhere in sight. A. Yes. Q. You knew from the radio messaging service, the VKG, that less than 12 minutes after the commencement of the VKG recording there was notification that the informant, that's Timothy Pratten, had been contacted by the police and he was on his way to Rose Bay Station. A. Yes. It would state that. Q. You knew that, and you knew that before you arrested Ms Pratten. A. I can't recall the sequence." [320] … "Q. Officer, you knew from the first announcement on the VKG, so zero zero zero, about this incident that the informant was returning to his home address at Darling Point. A. That's what it said in the VKG, yes. Q. In fact, an address for the informant was provided as 10 Loftus Street, Darling Point. A. Yes. Q. There was an announcement over the VKG that a car was to attend unit 3/4 Loftus Street, Darling Point, to see the informant, Timothy Pratten. A. Yes. Q. There was other information on the VKG that didn't concern the incident that you were responding to. A. Mm-hmm. Q. But certainly you knew from the VKG that Ms Pratten's address was either Bondi Road, at what was described as a women's refuge? A. Yes. Q. Or an address in South Coogee, which was described as being a possible address for her, because of a domestic connection she had to it. A. Yes. Q. Now, when you approached Ms Pratten prior to arrest, you made no further inquiries, other than identifying her. Is that right? A. Yes." [321] 1. Senior Constable Marshall was further asked as to her consideration of alternatives to arrest and stated:- "Q. You clearly knew that she was a person under the age of 18 years of age. A. Yes. Q. So you knew she was a child. A. A young person, yes. Q. So young person being someone under the age of 18 years of age. A. Yes. Q. You said in evidence you were asked whether you considered any alternative courses, that is alternative courses to arrest. A. Yes. Q. You said you did. A. Yes. Q. But you determined to arrest Ms Pratten, because of, to prevent the repetition-- A. Yes. Q. --of an assault against her father. A. Yes. Q. And because of the seriousness of the assault. A. Yes. Q. And do you assessed that seriousness of the assault with reference to the information, only the information provided on the VKG? A. Yes. Q. And that information was that in relation to the assault, and of course it was second-hand information, the informant had been punched and spat on." [322] 1. Senior Constable Marshall was also asked about her previous knowledge of the Plaintiff. The transcript records the following exchange:- "Q. By the way, you gave evidence - I just want to check what it was - the VKG announcement talked about Ms Pratten being well known to the police. A. Yes. Q. As at 5 July 2015, you were not aware of what if any alleged offences or dealings she had had with the police, were you? A. Previously? Before that date? Q. Yes. A. Yes. Q. You agree with that? A. No, I did know what she was known for. Q. Wasn't it the case that she was just a name that you knew? A. She is a name well known to the Eastern Suburbs LAC. Q. To the Eastern Suburbs LAC as in local area command? A. Local area command, yes. Q. But you yourself were not aware of the alleged offences and dealings that she had had with police. A. Previously she was a recidivist domestic violence offender." [323] … "Q. Do you recall saying HIS HONOUR: When? PHELPS Q. on 18 November 2015, page 6, "I couldn't tell you exactly what she's committed. I couldn't tell you"? A. I don't recall that. Q. You don't recall giving that evidence. A. I may have, but I don't remember word for word what I said on the day." [324] 1. Further, Senior Constable Marshall stated the following:- "Q. Ms Marshall, it wasn't reasonably necessary to arrest Ms Pratten to stop her committing or repeating the offence of assaulting Timothy Pratten, was it? A. I considered the alternatives of arrest, however there was no alternative due to the seriousness of the offence, and also to prevent repetition of the offence and to ensure no other offences were committed. ……… Q. Mr Pratten was nowhere in sight when you arrested Ms Pratten. A. That is correct, however there's nothing stopping Ms Pratten relocating him and committing further offences against him. Q. You had taken the keys from the car that she was in. A. That's correct, however she still has legs. Q. The thing is that in fact when you were arrived at the scene, you arrested Ms Pratten without giving consideration to any alternatives to arresting her. A. As I said before, I considered the alternatives, however there were none. Q. You considered the alternatives after in fact having already arrested her. A. I'd heard the police VKG message. That's a very serious offence that had been committed, therefore I arrested her. Q. You considered your options, as in alternatives to arrest, after you had arrested her. A. I considered my alternatives to arrest. There was no other alternative due to the seriousness of the offence." [325] 1. Earlier in her evidence Senior Constable Marshall stated: Q. Going back to the alternatives that you considered before arresting Ms Pratten, did you give consideration to filing a field court attendance notice? A. Yes. Q. Can you describe what a field court attendance notice is? A. It is a smaller piece of paper that we basically inform the person that they're being dealt with out in the field. We write on it with the offences that they are given, and then we hand it to them in the field, and they are then released. HIS HONOUR: You can assume that I know what it is. PHELPS Q. As at 18 November 2015 at least, was it your understanding that you still had to place a person under arrest before issuing a field CAN? A. You can, you can say the words, "You are under arrest." Q. But was it your opinion as at November 2015 that you would have to place a person under arrest? OBJECTION. RELEVANCE. PHELPS Q. As at the July 2015, 5 July 2015, was it your understanding that a person had to be placed under arrest before a field CAN could be issued? A. You still have to say the words, yes. "You're under arrest." Q. That's your view? That's your understanding? A. Yes. Q. So irrespective of your consideration of alternatives to arrest, in your mind you were at all times going to place Ms Pratten under arrest? A. Yes. Q. So you didn't give a consideration to alternatives to arrest? A. Yes, I did. Q. You've just - well, what alternatives were they? A. Being dealt, I could deal with her in the field, with a field court attendance notice. Q. Right. You've just told the Court that you had to place her under arrest first, irrespective of whether you were going to take her back to the station or issue a field CAN? A. Yes. Q. So in your mind, at all times, you had to place her under arrest? A. By saying the words, "You are under arrest." I, I need to do that. HIS HONOUR: Sorry, I'm not following this. Q. Are you saying that irrespective of whether you are going to take her to the police station or you're going to issue a field CAN, you have to formally place her under arrest? A. Yes. And then you can then un-arrest them, and then they're free to leave with the field CAN 1. Senior Constable Marshall also stated that she gave consideration to issuing an Apprehended Domestic Violence Order, however from the way that the Plaintiff was acting, she stated that there was "no way that [she] was just going to serve it on her." She confirmed that after the Plaintiff was placed under arrest, she might have turned her mind to that. [326] Senior Constable Marshall described that that process would require detaining the Plaintiff, obtaining an order and then serving it on her. However, in the process involving the Plaintiff, Senior Constable Marshall stated that she gave thought to alternatives to arrest after she had in fact completed the arrest. [327] Subsequently, she stated that the issue of the Apprehended Violence Order was revisited later on and she understood that the Plaintiff had been issued with one. [328] 2. The Plaintiff in its supplementary submissions sought to challenge the credit of the Senior Constable Marshall on the basis that the reason she gave was rehearsed. [329] This was not put to the officer in cross examination nor the basis of it explored. 3. It was further submitted that the conversations with the Plaintiff was not recorded contemporaneously in Senior Constable Marshall's notebook. [330] That may be so however the Plaintiff did not identify what aspect of the conversation given by the officer was specifically disputed. I accept the evidence of Senior Constable Marshall that she told the Plaintiff that she was under arrest for the assault of Mr Pratten. Although the Plaintiff had no recollection of being told this, it was not disputed. [331] Further Senior Constable Tunks heard the Plaintiff shortly after getting out of the vehicle stating "why am I under arrest?" [332] In this sense I accept that the Plaintiff was told the true reason for her arrest. [333] She did not have to be informed of the grounds of the officer's state of satisfaction. 4. To the extent the Plaintiff seeks to rely on suggestions that the officer did not provide an opportunity to the Plaintiff to provide her version of events it was not demonstrated how any account proffered by the Plaintiff (assuming it were relevant) would have affected Senior Constable Marshall's decision as to the grounds for arrest. In any event, the caution the Plaintiff was given indicated that she could give an account albeit that it could subsequently be used in Court. 5. As to the question of the issuance of a field Court Attendance Notice, the Plaintiff submitted that the officer's belief that she was required to arrest the Plaintiff in order to issue any kind of Court Attendance Notice was plainly wrong. [334] I accept that if Senior Constable Marshall was intending to convey that she could not issue a Court Attendance Notice without arresting the Plaintiff, then this is erroneous. So much is apparent from the provision of section 177 of the Criminal Procedure Act 1986 which provides for the service of Court Attendance Notices and the provisions of Pt 5 Cl 5.3 of the Local Court Rules 2009. However it is open in an appropriate case for an officer to arrest and subsequently discontinue the arrest in circumstances contemplated by section 105 of the 2002 Act. These include section 105(2)(b) which provides that if it is more appropriate to deal with the matter in some other manner, including, for example by issuing a warning or caution or a penalty notice or Court Attendance Notice or in the case of a child, deal with the matter under the Young Offenders Act 1997. In this sense alternatives to arrest are to be considered before and after arrest in terms of its continuation. 6. It is not clear whether Senior Constable Marshall's evidence above referred to, related to the circumstances which confronted her on 5 July 2015 or more broadly. Questions and responses appear to have been conflated in this regard. 7. Whilst the power to arrest a suspect and subsequently end the arrest and issue a Court Attendance Notice was canvased, that was not the course Senior Constable Marshall took. It is plain from the contents of Senior Constable Marshall's statement of 6 July 2015, that the intention to charge had been formed at the time the Plaintiff was advised that she was under arrest for assault and was then told that Senior Constable Marshall would record anything she says or does and use this recording in Court. [335] That conversation was recorded by Constable Sam Palfreyman in his statement of 30 July 2015. [336] . 8. The reason for arrest that was given was the assault on Mr Pratten, and the grounds for it were stated as the seriousness of the offence and to avoid further offending. [337] Whilst it was submitted that the officer was mistaken in her view that the Plaintiff needed to be arrested in order for a field Court Attendance Notice to be issued, it was not suggested in the issues identified by the parties that the purpose of arrest at the time it was effected was other than to charge at the police station. No questions suggesting another purpose was put to Senior Constable Marshall. [338] I accept in this regard that at the time of arrest the officer intended to charge the Plaintiff. [339] 9. Based upon Senior Constable Marshall's evidence which I accept, it cannot be said that her state of satisfaction as to the arrest being reasonably necessary was manifestly unreasonable, arbitrary, capricious or irrational. The offence carried a penalty of imprisonment. There was evidence that the officer was aware of a previous domestic violence incident and this was relayed in the VKG broadcast. She was aware that the Plaintiff and Mr Pratten did not reside at the same location and arrangements were being made for Mr Pratten to attend the Rose Bay Police Station and for a vehicle to patrol another residence where the Plaintiff previously resided. There is nothing to suggest that at the time of arrest concern to stop further offending against Mr Pratten was only in respect of the immediate aftermath of the offence for which the Plaintiff was arrested. The evidence of Mr Pratten was that the Plaintiff could not reside at his residence because of her violence. Although Senior Constable Marshall herself did not disclose knowledge of this, the Plaintiff herself gave evidence that Senior Constable Marshall had been previously known to her and Senior Constable Marshall gave evidence that the Plaintiff was "previously a recidivist domestic violence offender". What was meant by this later phrase was not elaborated on. [340] The reasons for the arrest were documented in the custody management record, which record the arrest, was to stop repetition of the offence or the commission of another offence. As was stated by Dean J in Donaldson v Broomby:- "Special considerations apply to arrest without warrant in a case where an offence is threatened or is actually being committed or where the offender is apprehended immediately or on fresh pursuit after the offence. In those cases, powers of arrest without warrant have long been recognized by the common law or by statutory provision (see, e.g., Criminal Law Amendment Act, 1883 (N.S.W.)) as necessary to prevent injury to the person or property of others, to preserve the peace or to identify the wrong-doer…" [341] 1. It is true that at the police station Mr Pratten told police that he made the 000 call not out of concern for his safety but because of the Plaintiff's unlicensed driving. The explanation that he gave as to his lack of safety concern was that the Plaintiff did not have a key to his residence. This was not communicated in either his call to police or the VKG broadcast. The reason for arrest in any event was based on sections 99(1) (b) (i) and (ix) of the 2002 Act. No argument was advanced by the Plaintiff based on the contents of Mr Pratten's statement to police at the station. What police were aware of at the time of arrest was described above. 2. The Plaintiff did raise what can be described as alternative courses which were open to Senior Constable Marshall, other than arresting the Plaintiff. In summary it was submitted that when police are dealing with a child, the appropriate course, rather than depriving her of her liberty, was to issue a Field Court Attendance Notice and give a direction to the Plaintiff to remain her vehicle whilst the Police applied for the Apprehended Domestic Violence Order. [342] 3. An interim Apprehended Domestic Violence Order can be issued under s 89A of the Crimes (Domestic and Personal Violence) Act 2007 (the '2007 Act'). Section 89A gives the police power to direct a person to remain at a place whilst an application for an order is made. 4. An Apprehended Domestic Violence Order is not necessarily an alternative to criminal offence proceedings. 5. Nor does the availability of section 89A of the 2007 Act fetter the use of the power of arrest contained in section 99 of the 2002 Act. I accept the Defendant's submission, there being no challenge to the state of mind of Senior Constable Marshall, the fact that she could have issued a direction does not mean that her use of the power of arrest was unlawful. [343] An interim Apprehended Domestic Violence Order was issued following the Plaintiff's arrest in any event. 6. The Plaintiff further relied upon the availability of a Field Court Attendance Notice contending that the officer was obliged by the terms of section 8 of the Children's (Criminal Proceedings) Act 1987 (NSW) to consider this when determining whether to arrest a person under the age of 18. [344] 7. That section (as at 5 July 2015) was (and remains) in the following terms:- 8 Commencement of proceedings (1) Criminal proceedings should not be commenced against a child otherwise than by way of court attendance notice. (2) Subsection (1) does not apply: (a) if the offence for which proceedings are being commenced consists of: (i) a serious children's indictable offence, (ii) an indictable offence under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985, or (iii) an offence (whether indictable or otherwise) prescribed by the regulations for the purposes of this paragraph, (b) if, in the opinion of the person by whom the proceedings are commenced, there are reasonable grounds for believing that: (i) the child is unlikely to comply with a court attendance notice, or (ii) the child is likely to commit further offences, if the proceedings were to be commenced by court attendance notice, or (c) if, in the opinion of the person by whom the proceedings are commenced: (i) the violent behaviour of the child, or (ii) the violent nature of the offence, indicates that the child should not be allowed to remain at liberty. (3) (Repealed) 1. Section 8 is directed to the commencement of criminal proceedings by Court Attendance Notice rather than by an alternative process such as filing information in Court. So much is clear from the decision of the High Court in PM v R. [345] 2. The Plaintiff makes reference to the decision of Fullerton J in DPP (NSW) v Matthews-Hunter. [346] In that case, her Honour was considering an appeal from the Local Court in which the Magistrate had found an arrest by transit officers unlawful in respect of the offence of malicious damage. 3. The Defendant had argued that the arrest should not have been exercised as the transit officers could and should have taken the defendant's name and address and supplied it to police to issue a Court Attendance Notice alleging breach of the Graffiti Control Act 2008. The Defendant was over the age of 18. Fullerton J however noted:- "[35] In circumstances where the arresting officer's reliance upon s 100 of LEPRA as the source of the power to arrest the defendant was not in issue, and where there was nothing in the evidence to support a finding that it was other than properly exercised for the statutory purpose of transferring his custody to police, the plaintiff submitted his Honour's focus upon whether the arrest was illegal or improper under the provisions of s 99 of LEPRA, a section which is confined to governing police powers to arrest, has led him into error. On that issue his Honour said: The cases make it clear that arrest is a [last] resort and indeed when one looks at s 99 of LEPRA with respect to police officers, it is plain that the Parliament is [cognisant] of that ... the cases make it clear that it is a last resort, arrest is a last resort and should be used sparingly. On the evidence, there was no suggestion that once the marker was confiscated there would be any further offending, which of course enlivens the principles in subs 3 of 99 of LEPRA." [347] 1. It is clear from this quotation that the outcome in the case did not depend upon the application of section 8 of the Childrens' (Criminal Proceedings) Act 1987. Nor was her Honour suggesting that section 8(1) of the Childrens (Criminal Proceedings) Act 1987 was a relevant consideration in respect of a child under the age of 18 except to the extent that circumstances did not require arrest or continued arrest because of the provisions of section 8(1). Her Honour stated:- "[54] The plaintiff submitted that even were I persuaded that his Honour's finding that the arrest was unlawful or improper was not shown to be infected by error, I would nonetheless be satisfied that his approach to the balancing exercise under s 138(1) disclosed error sufficient to justify the relief sought under the summons." [348] 1. Her Honour then went on to observe:- "[57] As noted at [27], before finally deciding whether the evidence of the arrest was obtained illegally or improperly or in consequence of an illegality or impropriety, his Honour considered what he called the "importance" of the evidence, including the seriousness of the assault committed on a transit officer during the course of his employment, and the evidence that suggested the assault was an act of retaliation. The plaintiff submitted that those considerations, referred to expressly in ss 138(3)(a) and (b), are relevant only to the balancing exercise involved in whether the evidence should be excluded as a matter of discretion and that his Honour was in error in moving to consider those matters before determining whether s 138 was engaged at all. [58] Approached in this way, the plaintiff submitted, his Honour did not properly turn his mind to the mandatory considerations in s 138(3), in particular, the gravity of the impropriety or the contravention (s 138(3)(d)), and whether the impropriety or contravention was deliberate or reckless (s 138(3)(e)). The plaintiff submitted those considerations necessarily involve the length of the period of arrest and the fact that the transit officers misunderstood the scope of their powers, both of which weighed heavily against the discretionary exclusion of the evidence. In addition, the plaintiff submitted that his Honour gave undue weight to public policy considerations, including "the rights of all citizens, whether they be committing criminal offences or not"." [349] 1. Unlike the circumstances in DPP (NSW) v Matthews-Hunter, the offence which the Plaintiff had been arrested for was an offence carrying a period of up to 2 years imprisonment. It cannot be equated with the offence with which her Honour was concerned, which has been noted above as punishable only by fine. Moreover it didn't involve a person with a previous history of domestic violence known by the officer at the time. It follows in my view that the Plaintiff's case, based on unlawful arrest and consequent false imprisonment must fail. 2. It was not suggested, nor could it be in the circumstances that the Plaintiff's arrest should have ceased and before being bailed. 3. The submission was raised that the bail conditions and the conditions of the interim Apprehended Domestic Violence Order, demonstrate that arrest was unnecessary because they do not prevent contact with Mr Pratten. 4. The circumstances of arrest must be judged as at the time it was made. The determination of bail was made subsequently at around 9.20 pm by Sergeant Jennifer Cracknell. [350] In any event the bail conditions imposed do create a number of restrictions on the Plaintiff's residence and conduct, particularly towards Mr Pratten, as does the terms of the interim Apprehended Domestic Violence Order. [351] Bail conditions as shown in Exhibit 2 could not have been imposed if the matter were dealt with by Court Attendance Notice. There is force in the Defendant's contention that the arrest was for the purpose of "controlling her and disapprobation that the officers must express in terms of serious criminal conduct to bring it to an end." [352] 5. I accept that up until the point of arrest, there was a level of cooperation exhibited by the Plaintiff, in particular, by responding to the Police Officers, to Senior Constable Marshall's request to confirm her identity and apply the hand brake to the vehicle. However these circumstances cannot be viewed in isolation. I accept that Senior Constable Marshall's decision to arrest the Plaintiff was believed by her to be reasonably necessary within the terms of section 99(1) of the 2002 Act for the reasons she gave and consequently both it and the imprisonment were lawful. Assault 1. The Plaintiff claims that the actions of Police in pulling her from the vehicle, placing her up against the van and searching her, forcibly removing her from the police vehicle at the police station, grabbing her on her arms whilst escorting her to her cell, pushing her up against the wall in custody corridor and forcing her head and body against the wall of cell 4 and restraining the Plaintiff's arm behind her back before further searching her together with the check drills, executed by Senior Constable O'Brien, constituted the relevant batteries. [353] 2. The Plaintiff also alleged the repeated physical and forceful contact made by police to the Plaintiff throughout her time in custody, left her feeling "scared," [354] "intimidated" [355] and not "trust[ing] anyone." [356] The Plaintiff's evidence in relation to her interaction with Police before she was removed from the vehicle was vague. To her own words, the incident was fast and she did not recall every single word. [357] 3. The Plaintiff conceded that at the times, she swore at police officers. [358] She conceded that she had continually verbally abused police, probably from the moment she was sitting in the vehicle and Senior Constable Marshall was speaking to her. [359] Notwithstanding, she stated that she did not resist the efforts of Police to search her on the side of the Paddy Wagon. [360] 4. The Plaintiff accepted that she objected to being forcibly removed from the motor vehicle. [361] She further stated that she did not recall objecting to being searched but it was possible, but she doubted it. [362] She stated "but it was going too fast. I was confused with everything." [363] Whilst she stated the reason for her confusion was because she was not told why she was being arrested. She stated that she was aware that Police were there because of what happened between her and her father and as she drove off as an unlicensed driver. [364] 5. Beyond that, there was evidence from Senior Constable Marshall that after she was told that she was under arrest, she picked up her phone to call her father and was very aggressive towards him before being told to get off the phone. [365] The Plaintiff gave evidence that her phone was taken by police but did not give evidence of having made a phone call to her father. [366] Senior Constable Marshall could not recall taking the phone. 6. Whether or not the Plaintiff sought to make contact with her father there is no evidence that contact was made. Mr Pratten does not give evidence to this end. Nevertheless the Plaintiff accepted that she connected the attendance of Police with what had transpired earlier with her father [367] and that she may have been told that she was under arrest. [368] 7. According to Senior Constable Marshall although the Plaintiff had initially indicated to her that she would get out of the car, she subsequently declined after putting the handbrake on. [369] 8. Senior Constable Marshall supports that the Plaintiff did not willingly exit the vehicle. Beyond that, Senior Constable Marshall's statement asserts that she had informed the Plaintiff to stop resisting as she was thrashing around with her arms and legs. Furthermore Senior Constable Marshall stated:- "The accused continued to move about her arms and legs attempting to get out of my grip. I conducted a search of the accused before placing her in the rear of the caged vehicle. The accused began kicking the interior of the cage area numerous times yell abuse." [370] 1. In oral evidence Senior Constable Marshall recalled that she was assisted in the search by Constable Pulfreyman and not any other officer. 2. Constable Tunks account in her statement was that the Plaintiff had to be forcibly removed from her vehicle [371] In oral evidence she stated that the Plaintiff was not compliant and was forcibly removed by pulling. [372] She recalled holding one of the arms of the Plaintiff [373] and that she had to be restrained against the caged vehicle. [374] She did not recall Officers Pulfreyman, McCoy or Cameron restraining the Plaintiff and did not recall which officer held the Plaintiff's other arm. [375] 3. Constable Pulfreyman in his statement said that as the Plaintiff was being removed from the vehicle the Plaintiff attempted to break the hold of Senior Constable Marshall by pulling her arms away and aggressively moving her body about. [376] He said that he observed Sergeant McCoy and Constable Cameron secure the Plaintiff by her arms whilst he conducted the search. Constable Cameron stated that he observed police attempting to remove the Plaintiff from the driver's seat of the vehicle. [377] 4. It was suggested to Senior Constable Marshall in cross examination that the force that she used in removing the Plaintiff from the vehicle involved holding the Plaintiff tightly. However she maintained that reasonable force was used. [378] 5. The Defendant contends that the actions were authorised by section 230 of the 2002 Act which reads: It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function. 1. The Defendant relies on section 231 of the 2002 Act which reads: A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest. 1. The Plaintiff's submission was to the effect that a reasonable person in the position of Senior Constable Marshall would consider the grabbing of the Plaintiff out of the vehicle disproportionate to the evil to be prevented. [379] However it was not demonstrated how in the circumstances this was so. Nor was it directly put to Senior Constable Marshall. 2. In all I am satisfied that the Plaintiff resisted requests to exit the vehicle voluntarily and did not cooperate in the search. I do not accept the Plaintiff's evidence that she cooperated in the search. On her own evidence she was confused and didn't recall. 3. In my view, the actions of Senior Constable Marshall in removing the Plaintiff from the vehicle and the application of force to do so were sanctioned by sections 230 and 231 of the 2002 Act. The power to carry out a search and the use of the force to effect the search, was authorised by sections 23 and s 230 of the 2002 Act. 4. The Plaintiff accepted that at Waverley Police Station, she swore at Police Officers and spat at them. [380] She accepted that her behaviour was disgusting. [381] She accepted that she was attempting to offend police. [382] In evidence in chief, the Plaintiff also accepted that she made threats to police and that she probably called Senior Constable Marshall a "slut". [383] The Plaintiff also accepted that she was removed from the vehicle at Waverley Police Station. [384] She stated that she was kind of struggling a little bit to try and loosen the grip of Police as she was experiencing pain in her arms. [385] 5. The evidence of Senior Constable Marshall was that she asked the Plaintiff to get out of the vehicle and she replied "fuck off." Such evidence was not contained in her statement, however she does recall:- "… due to the aggressiveness of the accused, Constable Monique Tunks came to assist with conveying her from the truck to the custody area." 1. Thereafter, she described what happened in the following terms:- "Q. When you say she was assaulting us, what are you describing, what was she doing? A. So she was - we were walking her, she was still very angry, yelling, swearing at us, she would kick her leg back towards like a cow kick almost in my direction, this repeatedly came into contact with my legs. She was also spitting a lot, continuously swearing at us and then she has then spat on Constable Tunks and then I've placed her, used the back of my hand - sorry used my hand into the rear of her neck and then placed her up against the brick wall." [386] 1. Senior Constable Marshall records that the Plaintiff spat on Senior Constable Tunks and was then placed up against the wall for the purpose of stopping her from spitting. There after she said that the Plaintiff continued to spit but not at either of the officers. [387] 2. Senior Constable Tunks' evidence corresponded with that of Senior Constable Marshall. [388] She added that prior to the Plaintiff being pushed up against the wall she spat at police and at one point directly in her face resulting in her face being covered with saliva. [389] 3. The account of the police and the Plaintiff was largely consistent. The Plaintiff did not appear to argue that the actions of the police consequent to the spitting were not reasonable in the circumstances. [390] 4. Senior Constable Marshall stated that she then entered cell 4 and placed the Plaintiff up against the wall again. [391] She added:- "Q. And why did you do that? A. This is basically to create a reactionary gap, to ensure that because of her violent nature at the time we wanted to ensure that when we let go of her we had enough reaction time to remove ourselves from the cell to ensure that she could not assault us any further." [392] 1. In supplementary submissions the Plaintiff sought to attack the credit of Senior Constable Marshall by reference to the omissions contained as part of Exhibit D in her statement as to what happened in the police cells at Waverly. [393] These matters were not put to Senior Constable Marshall in cross examination. Further it is necessary to bear in mind that the statement was prepared for the purposes of the criminal prosecution, not defence of the Plaintiff's civil action. In my view there is no substance in the Plaintiff's criticism. 2. The Plaintiff draws attention to the evidence of Senior Constable Tunks as to her reasons for placing the Plaintiff up against the wall with her head in a compromised position. In cross-examination, she stated that the reason why she was placed against the wall was because she was continually resisting. [394] She could not recall the reason why the Plaintiff was not just placed in the cell and left there with the door shut. [395] As to why the Plaintiff's head was pushed up against the wall Constable Tunks stated that she did not remember. 3. The Plaintiff accepted that she was not going to cooperate with the Senior Constables Marshall and Tunks. [396] She accepted that her behaviour was disgusting including spitting and swearing. [397] 4. The evidence of Senior Constable O'Brien was that he had been told that a cursory search had been undertaken but not a detailed one. He told them that a detailed search would be required. In oral evidence he stated that it was usual practice to place a person in the dock first but he was informed by both Senior Constables Marshall and O'Brien that the Plaintiff was resisting and it would be better to do a detailed search in the female cell otherwise known as cell 4. [398] In his statement however it was the evidence that he did not ask if the Plaintiff had been searched until after she had been taken to the cell where he directed a further search. The reason he gave for the Plaintiff being taken to the cell was control the Plaintiff and her spitting. Whatever were the circumstances that led the Plaintiff to be taken to the cell, it is clear that he required a detailed search to be carried out. 5. I accept that the Plaintiff was initially held in the cell intending for a detailed search to be carried out and that the Plaintiff's head was positioned to avoid the impact on the officers of her spitting although I also accept that she did not spit at that point. 6. I accept that the actions of police were reasonably necessary within the terms of s 230 of the 2002 Act. Those acts cannot in my view be judged in isolation from what had occurred immediately before the Plaintiff was taken into the cell. 7. It was Senior Constable O'Brien who directed Senior Constables Tunks and Marshall to withdraw at that point and informed the Plaintiff that she would be the subject of a further search as well as the reasons for it. [399] To this extent Senior Constable Marshall's evidence as to the need for a reactionary gap was not inconsistent. The evidence was that the Plaintiff objected to being searched by Senior Constables Marshall and Tunks and started going towards the door and abusing them before Senior Constable O'Brien took hold of her and stopped her. Senior Constable O'Brien said it was clear to him that the Plaintiff was not going to comply. 8. Senior Constable O'Brien conceded that for the purposes of the search he took hold of the Plaintiff's right arm and applied an arm bar by directing the Plaintiff's body forward and pulling the arm back trying to immobilise her position. He described it as a form of weapon less control, where to take hold of someone's arm and move it to a position that in order for them not to feel any pain, they have to shift their body weight. His evidence was as follows: Q. If they resist the hold, is it your understanding that pain is experienced? A. Yes, it would be. Q. Is that a technique that you are trained in? A. Yes. Q. Where did you receive that training? A. At the police academy in Goulburn. Q. When you took hold of Ms Pratten, did she to your sensation submit to the hold? A. There was initial very small amount of resistance, but then she submitted to it. Q. Did any other officer take hold of her, to your observation? A. Yes. Q. Who was that? A. Constable Tunks. Q. Did any other officer do anything to your observation? A. Yes. While conducting the search Ms Pratten started spitting again and I saw that Constable Marshall was pushing her head away trying to direct her head away from her, at which point I told Constable Marshall just to be careful that her hand wasn't going to be bitten. 1. At that point Senior Constable Tunks held the Plaintiff's left side while Senior Constable Marshall effected the search. 2. Bearing in mind the circumstances that confronted police officers at that time, I do not accept that the acts of the Police were an unreasonable use of force. The evidence of Senior Constable O'Brien was that he required a further search to be conducted beyond that which had already been conducted on the roadside. [400] He described the earlier search before entering the vehicle was a cursory search. As for this further search he described its purpose stating. [401] A. Every prisoner who attends a custody area that I'm in charge of, regardless of whether they were searched at the scene or not, is searched again. Quite often we find that property is not located on a prisoner when they're arrested at a scene. It is my practice that every offender is searched again to ensure police officers' safety, to ensure the offender's safety, and anyone else who may come in contact with that prisoner. We search for, mainly, any weapons or any item that might be used to escape or harm the prisoner themselves, or an officer. 1. This evidence corresponded with the evidence of the other officers. [402] 2. Senior Constable O'Brien's account of what transpired was not challenged. In particular it was not put that the conduct was either excessive or unreasonable in the circumstances. The Plaintiff's reaction to police was not disputed. It was submitted that the further search was unnecessary on the basis of the earlier search having been conducted. However I accept the explanation of Senior Constable O'Brien on this matter. 3. I accept that in the circumstances the search was authorised by s 24 of the 2002 Act and the use of force was authorised by s 230 of the 2002 Act. 4. Senior Constable O'Brien's evidence as to the use of the check drills was as follows:- "Q. Once the search was completed, what happened? A. I told the officers to leave, two female officers. I then released Ms Pratten, at which point I started to back away from her and she started to abuse me telling me she would, "Fucking go me," and started to poke a finger towards my face. At that point she's poked me directly in the nose. Immediately and instinctively I issued a one-handed check drill to her front to create distance and get her away from me. I then backed towards the cell. She then came back towards me again and I issued another check drill, also backwards and to create space, and I moved back towards the cell door and exited the cell. Q. A moment ago you said you moved after the first what you've described as a check drill, you moved "back toward the cell". A. Cell door. Q. The technique that you've described as a check drill, can you explain its purpose. A. Yes. A check drill can be delivered by either one or two hands. It's often delivered to the upper shoulder area near the brachial nerve. It is taught to create distance between you and an offender who is in your personal space, or what we call the reactionary gap which is the space that we want to ensure safety. If someone enters that space, does not move away when directed, then it is taught you should issue a check drill if you believe that you could be assaulted. It can stun an offender if it hits the brachial nerve, but more often than not it just pushes them away from you. Q. Did you issue a warning before you employed the first check drill? A. No, not the first check drill. It was instinctive from being poked in the face and I just issued it directly. Q. Did you issue a warning before the second check drill? A. Yes, I did. I told Ms Pratten to get back and step away from me. Q. Did you give her an opportunity to do so? A. It was very short. She just immediately stepped towards me. There was no time. Q. Did you issue a warning before the third check drill? A. I did. I said again, "Step back." Q. When you issued the third check drill, what was your purpose in doing that? A. Once again to create the reactionary gap and create space. Secondly, we were about to close the cell door. It's a heavy steel door and I needed to get her away from that door before we - we have to shut it quite forcefully to then get a bolt across. It presents a risk to officers closing it and any offender who might put their hand or any limb in that door, it's quite heavy and it can easily sever a limb. Q. That was on your mind at the time of the third check drill. A. Yes, I have seen other - I've had prisoner's hands caught in the cell door." [403] 1. In his statement, Senior Constable O'Brien stated:- [11] When the search was completed I directed the female officers to let the accused go and step out of the cell. I then let go of the accused and moved backwards away from the accused. As I did this the accused approached me in an aggressive manner yelling in my face threatening to attack me. The accused yelled, 'l'll fucking go you cunt, Come on! Come on!" I said, "Get back step away from me!" [12] The accused has then used her right index fin[g]er to forcefully poke me in the face. The finger [of] the accused struck me on the nose and caused immediate pain. I have then issued a one handed check drill, with my right hand, to the front of the accused. This check drill pushed her backwards. I then edged toward the cell door with the intention of exiting the cell. I was conscious not to turn my back on the accused as I feared she would strike me from behind. [13] As I moved towards the cell door the accused again advanced on me in an extremely aggressive manner yelling, screaming and stepping close to my face. I Said, "Get back." [14] The accused ignored my direction. And fearing I would not be able to leave the cell without the accused again attacking me I issued a two handed check drill to her front. This pushed her backwards onto the cell mattress allowing me to step out of the cell. The accused again approached me at the door and again I pushed her away, this has then allowed use to close the cell door." [404] 1. Once again it was not put that the response of Senior Constable O'Brien was excessive. I accept that the actions of Senior Constable O'Brien were reasonably necessary in the all of the circumstances such that they were authorised by s 230 of the 2002 Act. 2. As the assaults raised by the Plaintiff were authorised by law, the case for Plaintiff's action must fail. 3. The impact of section 230 of the 2002 Act was described in State of New South Wales v McMaster by Beasley P where her Honour held: 230. The meaning of "lawful" in s 230, in my opinion, is clear. The legislature has expressly made lawful what would or may otherwise be contrary to law, whether criminal or civil. Relevantly for present purposes, s 230 makes lawful action that would otherwise constitute a battery. If Constable Fanning's conduct satisfied the terms of s 230, there was no battery. 231.This construction of s 230 reflects the policy which underlies policing, policing powers and, for that matter, the rationale for the common law operational immunity applied in Crowley where, at [271]-[273], the Court observed that a police officer's duties are owed to the public at large and must be discharged even though there is a risk of injury to a suspect or even to an innocent bystander. The Court further commented, in the passage quoted above at [27], that the discharge of those duties must not be constrained by fear of liability. 232.It is also relevant to bear in mind that although in a particular case self-defence may be available in response to an allegation of battery, or a charge of assault, "the existence of a right of self-defence cannot be determined until after the fact": Taikato at 463. If police were constrained to a justification of their actions by reference to self-defence, policing duties would become so circumscribed as to be rendered ineffective in a significant way. 233.For the reasons discussed above at [180]-[184] in relation to the State's submission that Constable Fanning was acting in self-defence, I am of the opinion that the police officers' actions were reasonably necessary and therefore lawful within the meaning of s 230. Lawful authorisation provides a complete defence to actions in trespass: Halliday v Nevill [1988] HCA 80; 155 CLR 1; Coco v R [1994] HCA 15; 179 CLR 427. [405] 1. It is unnecessary in these circumstances to consider the application of sections 52 to 54 of the Civil Liability Act 2002 (NSW). [406] However the Defendant argued that in the event that the Plaintiff succeeded in establishing that she was subject to the torts alleged then she will still be required to meet the two statutory defences. The Defendant submitted: The plaintiff complains of assault and battery. The use of force employed by S/Const Marshall, S/Const Tunks and A/Sergeant O'Brien to prevent the plaintiff from spitting upon them and kicking them (S/Const Marshall and S/Const Tunks), and from poking (A/Sergeant O'Brien) forcefully was reasonable and in direct response to the plaintiff's violent and aggressive conduct. The plaintiff made no challenge at all to any of the witnesses on their reasons for employing such force. An assessment of the reasonableness of the fore used will depend upon all of the evidence of the circumstances of the plaintiff's actions. [407] 1. The Plaintiff contended that the circumstances involving the Plaintiff being placed against the wall in the cell prior to being searched and being check drilled twice by Senior Constable O'Brien could not amount to self-defence. [408] 2. Otherwise the Plaintiff referred to sections 50 to 54 of the Civil Liability Act but made no substantive submissions to the question of their application. [409] Malicious Prosecution 1. The Plaintiff's allegation of malicious prosecution arises in respect of four charges, being Sequences 2, 3, 4 and 5 above. The Plaintiff made no allegation in relation to Sequence 6 and she pleaded Guilty to Sequences 1 and 7. The Defendant conceded that 5 of the 7 charges were terminated in the Plaintiff's favour including the charge in Sequence 6. [410] The offence, the subject of Sequence 6, required the Plaintiff to attend Court in addition to Sequences 1 and 7 in respect of which she pleaded Guilty. [411] 2. The Amended Draft Agreed Schedule of Issues submitted to the Court noted that there was no malicious prosecution in respect of Sequence 6. [412] 3. In A v State of New South Wales, Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ stated:- "For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause[1]." [413] Tort 1. The Defendant has conceded that the proceedings are of a kind in which the tort applies, being criminal proceedings initiated against the Plaintiff by the Defendant and further that those proceedings were terminated in the Plaintiff's favour. [414] Prosecutor 1. As to the question of who was the prosecutor, the Plaintiff contended that it was Senior Constable Marshall. [415] The basis for this assertion was that it was that it was Senior Constable Marshall who was named as the prosecutor on the Court Attendance Notice. The Defendant accepted that Senior Constable Marshall charged the Plaintiff. [416] The Defendant submitted:- "[230] Similarly, it could not be uncontroversial that the conduct of the hearing in the Children's Court of New South Wales was in the hands of a police prosecutor, Indeed, S/C Marshall gave evidence that she did not have control over the proceedings (and therefore may not be considered instrumental at all relevant times): Q. You attended the hearing and gave instructions as officer in charge to the sergeant at court? A. I gave instructions? Q. Yes. For example, when the exact times of the offence had to be changed. A. I don't believe so." [417] 1. In Young v New South Wales, Young v Young (No 2), Adamson J held "[141] The question of who is a prosecutor is not limited to the informant. Anyone responsible for initiating the prosecutions can be relevantly regarded as a prosecutor: see Fleming, at [27.30] pages 696-697 …" [418] 1. The relevant principles relating to maintenance of a prosecution were set out by Macfarlan JA in State of New South Wales v Landini. [419] 2. In Sahade v Bischoff, Gleeson JA referred to Landini [420] and stated at [121]:- "[121] … The common feature in the authorities is the requirement that the defendant take some positive conduct to maintain the prosecution, such as giving evidence in support of the prosecution, which was known to be false." [421] 1. Whilst the Defendant's submission draws attention to some of the answers given by Senior Constable Marshall, it is important to view those in context. When asked, Senior Constable Marshall's evidence was as follows:- "Q. You've got it in front of you, all right. Could you turn up the court attendance notices? Now, I think you may have already identified yourself as the person who created the CAN, that's court attendance notice? A. Yes. Q. And you're also the person who created the FAC[T]S, the police FAC[T]S sheet? A. Yes. Q. You compiled, as you've said, and served the brief on the solicitors for the defence? A. Yes. Q. You attended the hearing and gave instructions as officer in charge to the sergeant at court? A. I gave instructions? Q. Yes. For example, when the exact times of the offence had to be changed. A. I don't believe so. Q. You gave evidence in those proceedings? A. I gave evidence in the hearing? Q. Yes. A. Yes. Q. And you arranged for witnesses to attend? A. Yes. Q. And you remained at court for the balance of the hearing. A. Yes. Q. Because you were the officer in charge. A. Yes." [422] 1. In light of this evidence I am satisfied that the proceedings were initiated and maintained by Senior Constable Marshall. Not only was she responsible for the initial charges and preparation of the brief and its service, but also arranging witnesses and giving evidence herself as the Officer-in-Charge. In my view, the Plaintiff has established that Senior Constable Marshall was the Prosecutor. Absence of Reasonable and Probable Cause 1. In the enquiry as to absence of reasonable and probable cause and the nature of the belief that was relevant, the plurality in A v State of New South Wales stated:- "[58] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful. [59] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light." [423] 1. The Plurality then summarised what it referred to as three critical points as follows:- "[77] There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion?" [424] 1. When referring to the objective aspect of reasonable and probable cause, the plurality stated:- "[82] It is convenient to deal at this point with the objective aspect of an allegation of absence of reasonable and probable cause. As Dixon J said in Brain, if there is no dispute that a prosecutor "believed in the truth of the charge, or considered its truth so likely that a prosecution ought to take place" and no question arises as to the materials upon which the opinion was founded, there remains the question, for the Court to decide, "whether the grounds which actuated [the prosecutor] suffice to constitute reasonable and probable cause. [83] Reference is sometimes made in this context to the statement of Hawkins J in Hicks v Faulkner defining reasonable and probable cause: "to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed." The objective element of the absence of reasonable and probable cause is thus sometimes couched in terms of the "ordinarily prudent and cautious man, placed in the position of the accuser" or explained by reference to "evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution". Or, as Griffith CJ put it in Crowley v Glissan, the question can be said to be "whether a reasonable man might draw the inference, from the facts known to him, that the accused person was guilty". [84] None of these propositions (nor any other equivalent proposition which might be formulated to describe the objective aspect of absence of reasonable and probable cause) readily admits of further definition. It is plain that the appeal is to an objective standard of sufficiency. The references to "reasonable" and "reasonably", to "ordinarily prudent and cautious", make that clear. [85] Because the question in any particular case is ultimately one of fact, little useful guidance is to be had from decisions in other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiry should have been made. [86] It is, nonetheless, important to recognise what, standing alone, may not suffice to show a want of objective sufficiency. It is clear that absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others it will very often be the case that some further inquiry could be made. Lister v Perryman, where a charge was preferred on account of what had been reported to the prosecutor, is a good example of such a case. And as Lord Atkin rightly said in Herniman v Smith: "It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution." [87] For like reasons it cannot be stated, as a general and inflexible rule, that a prosecutor acts without reasonable and probable cause in prosecuting a crime on the basis of only the uncorroborated statements of the person alleged to be the victim of the accused's conduct. Even if at trial of the offence it would be expected that some form of corroboration warning would be given to the jury, the question of absence of reasonable and probable cause is not to be decided according to such a rule. The objective sufficiency of the material considered by the prosecutor must be assessed in light of all of the facts of the particular case." [425] 1. Accordingly, the test for determining whether the subjective element of absence of reasonable and probable cause has been established is whether the prosecutor has been shown to not have honestly concluded the material was such as to warrant setting the criminal law into motion. The Plaintiff's submission acknowledges that the absence of reasonable and probable cause may be established in two ways, being that the Defendant Prosecutor did not honestly believe the case that had been instituted or maintained, or that the Defendant Prosecutor had not sufficient basis for such an honest belief. [426] 2. In its statement of claim, both these bases were asserted. [427] The Plaintiff particularised that Senior Constable Marshall did not honestly believe there was sufficient material upon which to maintain the proceedings under s 58 of the Crimes Act 1900 because she knew that it was not in the execution of her duty at the relevant time and alternatively, she did not have a reasonable basis for holding such a belief because she knew that she and other officer named, were not in execution of their duty at the relevant time. [428] Questions to this end were put to Senior Constable Marshall in cross-examination and her responses were as follows:- "Q. I suggest to you, Officer Marshall, that you knew, at the time that you charged Juliette Pratten with the offences involving resisting arrest and assaulting police, that when you arrested Ms Pratten, you had arrested her unlawfully. A. I disagree. Q. You know that an element of each of those offences - they were sequences 2 to 5 - was that the relevant officer was acting in the execution of their duty. That's an element of each of those offences, isn't it? A. Yes. Q. I suggest to you that you knew that each of those offences could not be proved because you knew that when you arrested Ms Pratten you were not acting in the execution of your duty. A. No." [429] … "Q. You knew that each of those offences could not be proved because you knew that when you arrested Ms Pratten you were not acting in the execution of your duty. A. No, I disagree. I was acting in the execution of my duty. Q. I suggest to you that you had used your powers of arrest without the proper exercise of your discretion." [430] 1. It was put to Senior Constable Marshall that each of sequences 2 to 5 required the relevant officer to act in the execution of their duties but that she knew that the offence would be proved as she knew that when she arrested the Plaintiff, she was not acting in execution of her duties. Senior Constable Marshall rejected this. [431] She maintained that she was acting in execution of her duties. [432] It was then put to her that it was not reasonably necessary to arrest the Plaintiff to stop her committing or repeating offences of assaulting Mr Pratten. She maintained as follows:- "I considered the alternatives of arrest, however there was no alternative due to the seriousness of the offence, and also to prevent repetition of the offence and to ensure no other offences were committed." [433] 1. I accept her evidence. I do not consider that the Plaintiff has established that she did not honestly believe she was acting in the course of her duty nor that there was an insufficient basis for her to do so. Nor do I consider that it has been established the Senior Constable Marshall did not have reasonable grounds for holding such a belief. 2. Those questions and responses do not establish an absence of reasonable and probable cause. The Plaintiff has drawn attention to no other evidence to make out this allegation. Malice 1. Although it is unnecessary to do so, I now proceed to consider the question of malice. 2. The Plaintiff at paragraph 70 of its Written Submissions, stated:- "[70] In relation to the element of malice, it has been said that to constitute malice the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law. That improper purpose must be the sole or dominant purpose actuating the prosecutor: A v State of NSW at [91] and State of NSW v Abed [2014] NSWCA 419 at [135]. Absence of reasonable and probable cause in maintaining a prosecution may, in a given case, be evidence of malice: A v State of New South Wales at [40] and State of New South Wales v Abed [150]. In State of New South Wales v Abed, the Court of Appeal referred to Trobridge v Hardy [1955] HCA 68, 94 CLR 147 in which Kitto J at 163 referred to the 'indirect route' of proving malice in the context of a jury trial. Kitto J said (at 164): "If they think it more probable than not that the prosecutor lacked the belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malice, even though they may not feel able to say precisely what the malicious motive was [emphasis added]." [434] 1. In oral submission, the Plaintiff's Counsel accepted that it was being contended that the absence of reasonable and probable cause constituted malice. [435] 2. The difficult with relying on an absence of reasonable and probable cause to establish malice was referred to by the plurality in A v State of New South Wales where it was stated:- "[91] What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an "illegitimate or oblique motive"[89]. That improper purpose must be the sole or dominant purpose actuating the prosecutor. [92] Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant[91] and to stop a civil action brought by the accused against the prosecutor[92]. But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose. And as with absence of reasonable and probable cause, to attempt to identify exhaustively when the processes of the criminal law may properly be invoked (beyond the general proposition that they should be invoked with reasonable and probable cause) would direct attention away from what it is that the plaintiff has to prove in order to establish malice in an action for malicious prosecution – a purpose other than a proper purpose." [436] 1. I accept the Defendant's submission that the Plaintiff cannot establish that Senior Constable Marshall was not acting in good faith in preparing the charges. The Defendant drew attention to the fact that the Plaintiff pleaded Guilty to the first and seventh Sequence charges and took no issue with the charge of refusing to participate in a breath test, therefore the Plaintiff has to demonstrate that the only reason that the balance of the charges were brought was because of the malice of Senior Constable Marshall. 2. The Plaintiff's pleaded case that the charges were brought to justify the Plaintiff's false imprisonment and the assault and battery on her, [437] was not put to Senior Constable Marshall. [438] Nevertheless the Plaintiff sought to advance that it was open for the Court to find the officer failed to properly consider the alternatives to arrest the Plaintiff and she did this knowingly and hence malice can be established by what was described as an indirect route. [439] UCPR 15.4 would require that to have been pleaded. However the questions as to knowledge were put to Senior Constable Marshall in the exchange referred to above. [440] 3. The Plaintiff's onus was to demonstrate that dominant purpose for bringing the proceedings was other than the proper invocation of the criminal law. Accepting Senior Constable Marshall's evidence, I do not accept that this has been established. 4. Nor do I accept that any failure to undertake further inquiries of the Plaintiff evidences malice. [441] The Plaintiff was in any event cautioned after arrest, and before being charged the Plaintiff was offered an opportunity to be interviewed but declined. 5. The Plaintiff conceded that lacking a sufficient basis for an honest belief in the case instituted and maintained would rarely ground a finding of malice. It did not seek to advance its case on this basis. [442] DAMAGES 1. In event that I am wrong on the question of liability, I turn to consider the question of damages. Accepting the Police did not have lawful authority to arrest and detain the Plaintiff, the Plaintiff is entitled to damages for trespass to the person, constituted by battery and for the damages for false imprisonment up to the point that the imprisonment ceased through the granting of bail. Parties accept that the period of imprisonment was around 4 hours. The apprehension of the Plaintiff occurred very quickly, while she was observed in the motor vehicle, the arresting officer telling her that she was under arrest for assault. Secondly, the significant force said to be used to arrest the Plaintiff, must be viewed in light of the circumstances which confronted Police, including the significant resistance offered by the Plaintiff who exhibited aggressive and volatile behaviour. No injury was occasioned by her. Whilst she alleges that she was angry, that anger was also directed towards her father who reported the matter to police. Furthermore, after the Plaintiff was bailed her evidence was that she was not angry when she got back to the refuge. No evidence apart from the Plaintiff was presented on this issue of damages. 2. In the circumstances, I would have awarded the amount of $20,000 for trespass and false imprisonment. 3. The Plaintiff claimed aggravated and exemplary damages. 4. The particularisation of the claim for both these aspects of the Plaintiff's claim in the Statement of Claim was expressed to be (in addition to earlier pleading in [25] of the Statement of Claim) that: 1. The Plaintiff was a child at the time of the relevant events; 2. Officer Marshall's actions resulting in the Plaintiff's false imprisonment and assault and battery demonstrated a contumelious disregard for the rights of the Plaintiff; 3. Despite knowing that the Plaintiff was a child, Officer Marshall failed to consider the principle of arrest as a matter of last resort and in doing so demonstrated a contumelious disregard for the rights of the Plaintiff; 4. Further particulars may be provided in due course 1. When the question of the Plaintiff's claim was raised in submissions the following exchange with Counsel occurred: HIS HONOUR: Ms Phelps, your claim for aggravated and exemplary damages, particularised in paragraph 26 PHELPS: Yes, your Honour? HIS HONOUR: Number 2 is not a fact or circumstance, is it? Essentially what you're saying is that you're entitled to aggravated and exemplary damages because the plaintiff was a child and Officer Marshall failed to consider alternatives. PHELPS: And disregard the additional responsibilities, because the plaintiff was a child. HIS HONOUR: And that's it. That's the claim. There appears to be more - I'm not sure how any of that amounts to aggravated damages. Maybe you can tell me? 1. In supplementary written submissions the Plaintiff's counsel submitted the claim for aggravated damaged for the false imprisonment, assault and battery was based on: 1. The Plaintiff being forcibly searched at the side of the police wagon by involvement of a number of officers; 2. The Plaintiff was searched in public; 3. The Plaintiff was forced against the corridor was by a number of officers; 4. The Plaintiff was unjustifiably subjected to a second search with cell 4; 5. The Plaintiff was twice unjustifiably forced across cell 4 by officer O'Brien. 1. In so far as the supplementary submissions refer to facts and circumstances they appear to overlap with the particulars for loss and damage referred to in [25] of the Statement of Claim. 2. In State of New South Wales v Riley, Hodgson JA stated:- "[130] If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages? [131] In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified. [132] That approach is consistent with what Lord Reid said in Cassell & Co. Ltd. v. Broome [1972] UKHL 3; [1972] AC 1027 at 1085: Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not so where he has been caused mental distress or when his reputation has been attacked - where, to use the traditional phrase, he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain how far other people's minds have been affected, it is almost impossible to equate the damage to a sum of money. Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions. So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled as compensation. It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation. [133] This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means, I think, that aggravated damages can be a matter of degree: the worse the defendant's conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going." [443] 1. By her acknowledgement, the Plaintiff had assaulted her father Mr Pratten. I have determined that police were entitled act in the circumstances complained of. If contrary to my findings they acted unlawfully then I would not accept that their wrongdoing would go beyond ordinary human fallibility such as to justify an award of aggravated damages. 2. The case for exemplary damages was expressed in supplementary submissions as requiring the following matters to be taken into account: 1. The disregard by police of the rights of the Plaintiff, being a child, generally and under s 8 of the Children's (Criminal Proceedings) Act 1987; 2. The disregard of by officer O'Brien of his general and statutory obligations (including those under reg 29 of LEPRA) toward the Plaintiff as vulnerable person in his role as custody manager 1. The relevant principles governing the award of exemplary damages were conveniently summarised in State of New South Wales v Zreika by Sackville AJA:- "[60] … Aggravated damages are given by way of compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant's wrongdoing, while exemplary damages are awarded to punish and deter the wrongdoer: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118, at 129-130, per Taylor J, cited with approval in New South Wales v Ibbett [2006] HCA 57; 229 CLR 638, at 646-647 [31],[33]. Aggravated damages are assessed from the point of view of the plaintiff, but an award of exemplary damages is based on the conduct of the defendant: NSW v Ibbett, at [34]; Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1, at 7 [15], per Gleeson CJ, McHugh, Gummow and Hayne JJ. However, the same set of circumstances may justify an award of either aggravated or exemplary damages, or both: NSW v Ibbett, at 647 [33]. [34]. [61] Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect " detestation " for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno. at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights ": Gray v MAC, at 7 [14]. [62] Exemplary damages may be awarded against the State in respect of the conduct of police officers for whose torts the State is responsible: NSW v Ibbett; NSW v Landini , at [114]. The assessment of exemplary damages in a case of conscious and contumelious disregard of the plaintiff's rights by the police: "should indicate ... that the conduct of the [police] was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses ... do not happen." Ibbett, at 653 [51], citing Adams v Kennedy (2000) 49 NSWLR 78, at 87, per Priestley JA. [63] In a frequently cited passage, Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448, at 471, observed that the considerations that enter into the assessment of compensatory damages are quite different from those that govern the assessment of exemplary damages and that there is no necessary proportionality between the assessment of the two categories. Nonetheless, in NSW v Ibbett, at 647 [34], the plurality endorsed the proposition that it is necessary to determine both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation. Their Honours also said (at [35]) that where the same circumstances increase the hurt to the plaintiff and also make it desirable for the Court to mark its disapprobation of the conduct, a single sum may be awarded. Such an award would represent both heads of damage and ensure that no element is compensated more than once." [444] 1. In my view the Plaintiff has not demonstrated conscious wrongdoing in contumelious disregard of another's rights. Were it relevant I would have in any event not have allowed exemplary damages in the circumstances of the Plaintiff's provocation. [445] 2. With respect to malicious prosecution, I bear in mind that the Plaintiff pleaded Guilty to two offences prior to the hearing, subsequently defended other matters, including a matter of refuse breath test in respect of which, no claim for malicious prosecution is brought. In these circumstances, the claim for damages arising on account of the alleged malicious prosecution appears to me to be minimal. I would have awarded an amount of $20,000. Despite the Plaintiff's Statement of Claim [446] no submission was advanced for aggravated and exemplary damages for malicious prosecution. 3. Accordingly the total amount that I would have awarded had the Plaintiff succeeded would be $40,000.00 together with interest which I would have allowed at 2% to date. In the circumstances I make the following orders. ORDERS 1. Verdict and judgment for the Defendant. 2. Subject to any application within fourteen days to my Associate to relist the matter for any further or other order as to costs the Plaintiff is to pay the Defendant's costs. 3. The Exhibits are to be retained for 28 days. ********** Endnotes 1. T 1.20. 2. T 21.24. 3. T 19.49, 20.29, 46.43 and 47.02. 4. T 91.20. 5. T 91.22. 6. Statement of Claim at [21]; T 105.12-110.05. 7. T 124.45-125.17 8. T 239.32-.242.33 9. Voir Dire Exhibit B. 10. Voir Dire Exhibit A. 11. [2014] NSWCA 61, [24] (Ward AJ and Tobias AJA agreeing). 12. T 251.02-.07. 13. Agreed Amended Draft Schedule of Issues see T 256.24 14. T 291.43-.47. 15. T 303.14-.24. 16. T 10.44-11.07 17. T 13.11-.15 18. T 16.40-17.02 19. T 17.15-.25 20. T 17.27-18.08 21. T 18.09-.17 22. T 18.19-.35 23. T 18.39 24. T 22.30-.49 25. T 23.09-.20 26. T 24.01-.13 27. T 24.12-.22 28. T 24.24-.28 29. T 24.31-.32 30. T 45.28-.38 31. T 45.38 32. T 45.45 33. T 45.47-46.13 34. T 46.38 35. T 46.37 36. T 50.08 37. T 50.11-.13 38. T 50.27 39. T 50.45 40. T 51.02; 51.11 41. T 51.17-.24 42. T 24.38-.39 43. T 54.07 44. T 24.42-.46 45. T 25.01-.24 46. T 25.26-.33 47. T 25.38-.47 48. T 51.40 49. T 52.23-.26 50. T 52.36 51. T 52.34-.50 52. T 53.02 53. T 53.35-.38 54. T 53.40-.45 55. T 54.23-.27 56. T 54.40-55.05 57. T 55.07-.14 58. T 26.40-.48 59. T 27.10-.21 60. T 27.33-.41 61. T 28.07 62. T 28.06-.22 63. T 29.01-.06 64. T 29.21-.23 65. T 29.29-.37 66. T 30.04-.12 67. T 30.15 68. T 30.29 69. T 58.24-.40 70. T 58.44 71. T 58.48 72. T 59.27-.32 73. T 55.16-.36 74. T 56.25-.36 75. T 55.19-.23 76. T 56.46 77. T 56.50 78. T 57.04 79. T 57.14-.28 80. T 57.23 81. T 57.25-.28 82. T 57.30-.43 83. T 58.17 84. T 58.20-.22 85. T 59.34-.44 86. T 59.48 87. T 82.43 88. T 82.48 89. T 30.26-.40 90. T 30.44 91. T 30.47 92. T 30.50 93. T 31.01-.15 94. T 31.39-31.01 95. T 32.01-.06 96. T 32.12-.30 97. T 32.43-.45 98. T 32.48 99. T 33.19 100. T 33.21-.28 101. T 33.30-.49 102. T 34.03 103. T 80.06-.34 104. T 81.44-.46 105. T 81.50-82.03 106. T 34.20-.33 107. T 34.27-.48 108. Acting Sergeant at the time. 109. T 35.13-.24 110. T 35.26-.33 111. T 37.06-.11 112. T 38.14 113. T 38.35-.40 114. T 38.10-.21 115. T 39.27-.39 116. T 39.48 117. T 40.02-.04 118. T 41.44 119. T 40.11-41.19 120. T 42.30-.38 121. T 60.34-61.13 122. T 62.15 123. T 61.39-62.11 124. T 63.11 125. T 63.20-.21 126. T 63.24-.25 127. T 65.11 128. T 65.10-.24 129. T 65.35-.36 130. T 66.03-.24 131. T 68.10-.28 132. T 68.32 133. T 68.47 134. T 68.49-69.07 135. T 69.09-.13 136. T 70.48 137. T 71.13-.20 138. T 34.05-.17 139. T 71.25-.39 140. Exhibit B. 141. T 72.32-.42 142. T 73.19 143. T 73.25 144. T 85.01-.03 145. T 42.49-43.01 146. T 73.31-.33 147. T 79.05-.15 148. T 85.10 149. T 43.13-.15 150. T 77.30 151. T 251.20-.30 152. T 252.30-.31 153. [2013] NSWCA 296, [72]. 154. [1999] 196 CLR 297, [39] 155. [1999] 196 CLR 297, [39] 156. [2008] NSWSC 654, [21] 157. T 253.17-.21 158. T 96.18-.25 159. T 96.31-.35 160. T 97.08 161. T 97.30 162. T 97.36-.37 163. T 98.28-.31 164. T 98.40 165. T 99.32 166. T 99.35-.40 167. T 100.02-.11 168. T 100.25-.35 169. T 100.39-.41 170. T 101.01-.03 171. T 101.10 172. Exhibit E. 173. Exhibit E. 174. Exhibit E. 175. T 102.01-.26 176. T 102.34-.35 177. T 103.47-104.01 178. T 102.46-103.32 179. T 111.14-.42 180. Exhibit D at [16], 181. Exhibit D. 182. Exhibit D, Statement of Monique Tunks, dated 19 July 2015 at [5] 183. T 130.05-.08 184. T 131.35-.37 185. T 132.04-.20 186. T 132.28-.30 187. T 132.26-.38 188. T 133.04-.50 189. T 134.20 190. T 135.34-.40 191. T 128.35 192. T 136.27 193. T 136.35 194. Exhibit D, Statement of Monique Tunks, dated 19 July 2015 at [7] 195. Exhibit D, Statement of Monique Tunks, dated 19 July 2015 at [6] 196. T 137.32-.36 197. T 137.39-.40 198. T 137.46-.48 199. T 138.23-.28 200. T 138.38 201. Exhibit D, Statement of Monique Tunks, dated 19 July 2015 at [8]. 202. T 128.06 203. T 128.08-.12 204. Exhibit D, Statement of Monique Tunks, dated 19 July 2015 at [9]-[10] 205. T 128.14-.27 206. T 141.15-.19 207. T 144.11-.16 208. T 142.26 209. T 142.29 210. T 142.45 211. T 144.27 212. T 144.31 213. T 144.19-.23 214. T 152.17-.19 215. T 152.22 216. T 151.39-.45 217. T 152.04; 156.14-.27 218. T 158.01 219. T 161.44 220. T 161.50-162.01 221. T 162.08-.12 222. T 162.30-.34 223. T 162.36 224. T 162.43-.50 225. T 163.23-.27 226. T 163.33-.34 227. T 163.35 228. T 163.40-.43 229. T 164.29-.32 230. T 165.13-.16 231. T 165.35-.42 232. T 165.50-166.07 233. T 166.09-.14 234. T 166.17 235. T 166.25-.30 236. T 166.33 237. T 166.39-.50 238. T 166.03-.08 239. T 167.15 240. T 169.25 241. T 188.44-.50 242. T 188.06-.27 243. T 188.29-.34 244. T 190.07-.10 245. T 190.15-.19 246. T 191.14-.16 247. T 192.35-.49 248. T 191.43-.47 249. T 192.05-.07 250. T 192.09-.23 251. T 195.28-.30 252. T 195.32-.33 253. Exhibit 1. 254. Exhibit 1, 1-4. 255. T 201.40 256. T 206.02-.05 257. T 206.35-.37 258. T 221.37-.44 259. T 223.14-.28 260. T 206.43 261. T 207.12 262. T 207.33-.37 263. T 207.41 264. T 210.42-.43 265. T 210.45-.47 266. T 211.01 267. T 211.05-.08 268. T 211.17 269. T 211.22-.28 270. T 211.30-212.01 271. T 235.30-.43 272. T 235.45-.46 273. T 236.32-.34 274. T 211.40-.42 275. T 212.02 276. T 236.15-.27 277. T 212.07-.08 278. T 212.11 279. T 212.20-.32 280. T 213.03-.15 281. T 214.10 282. T 214.20-.21 283. T 214.04-.45 284. T 215.09 285. T 215.12 286. T 215.15 287. T 215.24-.25 288. T 215.32 289. T 215.42-.44 290. T 216.06-.19 291. T 216.31-.42 292. T 216.47-.49 293. T 217.01-.05 294. T 246.22-.33 295. T 233.26-234.06 296. T 234.16-.18 297. T 234.20-.24 298. T 234.26-.28 299. Exhibit H. 300. T 245.15-.41 301. T 245.44 302. Statement of Claim at [25](i) 303. Amended Draft Schedule of Issues, dated 24 May 2018 304. Pringle and Ors v Everingham [2006] NSWCA 195 at [24] 305. Amended Draft Schedule of Issues, date 24 May 2018 306. Amended Defence at [21] 307. [2004] NSWCA 320 at [23]. 308. [2016] NSWCA 334 at [42]-[43]. 309. Defendant's Written Submissions, dated 24 May 2018. 310. [2017] NSWCA 88 at [10]. 311. [2017] NSWCA 88 at [13] (citations omitted). 312. [2017] NSWCA 88 at [38] (citations omitted). 313. See also Shalhoub v State of New South Wales [2017] NSWDC 363, [62]; Lule v State of New South Wales [2018] NSWCA 125, [3]-[5] (Beazley P). 314. T 223.34-.39 315. T 223.44-.47 316. T 223.49-224.01 317. T 224.29-.31 318. T 224.48-225-.03 319. T 209.37-210.30 320. T 221.33-.47 321. T 223.05-.32 322. T 224.03-.34 323. T 236.39-237.11 324. T 237.45-238.06 325. T 248.23-249.05 326. T 226.40-.42 327. T 227.34-.36 328. T 232.35-233.01 329. At [21]. 330. T 235.20-.22 331. Statement of Claim at [10]. Also see agreed amended draft schedule of issues. 332. T 133.21 333. See State of New South Wales v Smith [2017] NSWCA 194, [91]-[92] (McColl JA). 334. Plaintiff's supplementary submissions at [24]. 335. Exhibit D, Statement of Jenna Marshall, dated 6 July 2015 at [9]. 336. Exhibit D, Statement of Sam Palfreyman dated 30 July 2015 at [11]. 337. S 99 (1)(b)(i) and (ix) of the 2002 Act. 338. See Agreed amended draft schedule of issues dated 24 May 2018 and Plaintiff's supplementary submissions at [44]. 339. See T 299.31-.38 340. T 237.11 341. (1982) 40 ALR 525, 526 (Kelly J concurring at [180]). 342. Plaintiff's Written Submissions at [37]-[38]. 343. Defendant's Written Submissions at [180]. 344. T 532.39 345. [2007] HCA 49, [30]. 346. [2014] NSWSC 843. 347. [2014] NSWSC 843 at [35]. 348. [2014] NSWSC 843 at [54]. 349. [2014] NSWSC 843 at [57]-[58]. 350. Exhibit 2. 351. Exhibit H. 352. T 268.15 353. Statement of Claim at [11]-[18] and Amended draft statement of issues at [4]-[11]. 354. T 30.50 355. T 81.40-82.05 356. T 34.07-.19 357. T 54.40-.48 358. T 56.44-.46 359. T 57.04 360. T 57.32 361. T 57.10-.28 362. T 58.09-.11 363. T 58.17 364. T 58.24-.44 365. T 210.32-211.08 366. T 26.04-.20 367. T 50.35-.49 368. T 54.45-55.14 369. Exhibit D, Statement of Jenna Marshall at [9]-[10]. 370. Exhibit D, Statement of Jenna Marshall at [14]. 371. Exhibit D, Statement of Monique Tunks at [5]. 372. T 132.32-.42 373. T 134.39 374. T 135.16 375. T 135.26.28 376. Exhibit D, Statement of Samuel Palfreyman at [15]. 377. Exhibit D, Statement of Daniel Cameron at [6]. 378. T 243.18-33 379. Plaintiff's written submissions at [46]. 380. T 60.22-.31 381. T 50.01-.02 382. T 61.29 383. T 30.08-.12 384. T 29.17-.23 385. T 29.28-.37 386. T 231.39-.47 387. T 214.20 388. T 138.36-139.19 389. T 139.14 390. Plaintiff's written submissions at [59]. 391. T 214.23-.39 392. T 214.42-.45 393. Plaintiff's supplementary submissions at [29]-[33]. 394. T 152.04 395. T 152.17-.22 396. T 65.10-13 397. T 60.1-.61.36 398. T 162.18-.26 399. T 192.35-.38 400. T 191.12 401. T 162.43-.50 and 192.4-.16 402. Tunks (T141.31-142.32) Marshall (T 215.8-.32). 403. T 165.34-166.33 404. Exhibit D, Statement of Philip O'Brien at [11]-[14]. 405. [2015] NSWCA 228 (although, McColl JA and Meagher JA did not decide on this question). 406. Agreed Amended Draft Schedule of Issues at [12]-[14] 407. Plaintiff's written submissions at [271]-[273]. 408. Plaintiff's written submissions at [60]-[66]. 409. Plaintiff's written submissions at [67]. 410. Defendant's written submission at [224]. 411. Defendant's written submission at [222]. 412. Amended Agreed Draft Schedule of Issues at [15]. 413. (2007) 230 CLR 500; [2007] HCA 10, [1]. 414. Defendant's written submissions at [224]-[226]. 415. T 122.20-123.01; Plaintiff's Outline of Submissions, dated 24 May 2018 at [69]. 416. Defendant's Written Submissions at [229]. 417. Defendant's Written Submissions, dated 24 May 2018. 418. [2013] NSWSC 330, [141] (Adamson J) 419. [2010] NSWCA 157, [52] – [60] (Macfarlan JA with Tobias JA and Sackville AJA agreeing). 420. [2010] NSWCA 157. 421. Sahade v Bischoff [2015] NSWCA 418, [121] (Gleeson JA with Basten JA and Beech-Jones J agreeing). See also: HD v State of New South Wales [2016] NSWCA 85, [74] – [75] (Gleeson JA with Leeming JA and Emmett AJA agreeing). 422. T 245.15-.47 423. (2007) 230 CLR 500; [2007] HCA 10, [58]-[59]. 424. (2007) 230 CLR 500; [2007] HCA 10, [77]. 425. (2007) 230 CLR 500; [2007] HCA 10, [82]-[87]. 426. A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10, [77]. 427. Statement of Claim at [28]. 428. See also Plaintiff's Written Submissions at [73]. 429. T 246.35-.49 430. T 247.15-.21 431. T 246.41-.49 432. T 247.18 433. T 248.25-.27 434. Plaintiff's Written Submissions at [70]. 435. T 290.40-.45 436. (2007) 230 CLR 500; [2007] HCA 10 at [91]-[93]. 437. Statement of Claim at [27](i). 438. See Plaintiff's written submissions in reply at [8]. 439. Plaintiff's supplementary submissions at [20]. 440. T 246.35-.49; 247.15-.18 441. See A v State of New South Wales (2007) 230 CLR 500 [80]-[87]; Clavel v Savage [2013] NSWSC 775, [69] This was affirmed on appeal: see Clavel v Savage [2015] NSWCA 61. 442. Plaintiff's written submissions at [26] 443. (2003) 57 NSWLR 496; [2003] NSWCA 208; 504 – 505 [130] – [133] This was cited by Tobias JA in New South Wales v Delly (2007) Aust Torts Reports 81 – 920; [2007] NSWCA 303 at [80], [88] – [93] and [113] 444. State of New South Wales v Zreika [2012] NSWCA 37, [60] – [63] (Sackville AJA with Macfarlan and Whealy JJA agreeing). 445. Fontin v Katapodis1962) 108 CLR 17; [1962] HCA 63, 184 [4] (McTiernan J) and 187 [3] (Owen J); Whitbread v Rail Corporation New South Wales [2011] NSWCA 13 at [33], [68] (McColl JA) and [257] (Whealy JA). 446. At [30]. 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: 17 October 2018