In this matter Greg Walsh acted for Luke Anthony Jarvie who had been charged with the offences of hinder police; resist arrest and assault police arising from an incident at The Rocks on the evening of 26 July 2008.
Luke Jarvie was then aged 19 years and had attended a function at the Rocks with his friends. He had left the function and had walked in an easterly direction towards Argyle and George Streets, Sydney. He was not aware that approximately 400 metres away, another member of the public had been observed by patrolling police, Senior Constables Buxton and Patton, throwing a witches hat from one side of Argyle Street to the other.
Senior Constables Patton and Buxton exited their police vehicles and gave chase to the ‘thrower’. At about 11.40pm on a Saturday evening there are many members of the public upon Argyle Street, however both Patton and Buxton ran at full pace seeking to apprehend the ‘cone thrower’.
At the intersection of Argyle and George Streets, Mr Jarvie heard a noise and turned towards the noise and came into collision with the officers, firstly with Senior Constable Patton. Mr Jarvie instinctively put his hands up and Senior Constable Buxton who was only a few metres behind Patton interpreted Mr Jarvie’s actions as leaping towards Senior Constable Patton and shoulder barging him causing him to lose his balance.
According to Senior Constable Buxton, there was only a second or two between the initial contact between Patton and Jarvie and then Buxton who crash tackled Luke Jarvie front on causing his head to impact severely with the footpath. As a result of the impact Mr Jarvie lost consciousness and was convulsing. Patton and Buxton physically restrained Mr Jarvie. An off duty nurse and other witnesses called for police to take the handcuffs off Mr Jarvie and eventually they did so. The bystanding nurse then gave emergency treatment to Mr Jarvie and he was conveyed by ambulance to Sydney Hospital.
Approximately two weeks after the incident, Luke Jarvie was charged with the offences above. Mr Walsh took steps to investigate the matter including an immediate subpoena to obtain the security footage of the incident as it took place under a CCTV tower opposite the Rocks Police Station. According to the City of Sydney who is responsible for maintaining the tower, no such footage existed. There were however a number of eye-witnesses to the incident.
The matter was fixed for hearing before Magistrate Culver at the Downing Centre Local Court.
The prosecution case was that Luke Jarvie had leaped at Constable Patton and for some reason he and Constable Buxton believed that Jarvie had an object in his hand and that Buxton crash tackled him because of that purported fear. Senior Constable Patton gave evidence that after the initial contact with him and Jarvie, he removed his service weapon and pointed it at Jarvie telling him to get to the ground. He agreed that a period of time between his initial contact and that of Buxton was relatively short, He agreed that he did not say to Jarvie “Drop it!” in relation to the object allegedly in his hand.
In respect of the resist, Patton contended that despite Mr Jarvie convulsing he didn’t put his hands between his back as quickly as he should of and further that he didn’t get to the ground when he did so.
In cross-examination, Patton agreed that Mr Jarvie had absolutely nothing to do with the ‘cone-throwing’ incident and further, that Mr Jarvie had no actual object in his hand. The officer further could not explain as to why, if he believed Jarvie had an object in his hand, he didn’t ask Jarvie to drop it. The officer did mention to Buxton after Jarvie’s friends commented that he had a pre-existing head injury that he ‘thought he had a gun’. Senior Constable Patton maintained that he could not have used any alternative forms of law enforcement such as the baton because he regarded the situation as so serious that it was ‘life-threatening’. Patton was shown a photograph taken by a witness of Mr Jarvie’s facial/head injury and the Constable said that this had been deliberately affected by Mr Jarvie.
Buxton gave evidence that at no stage did he see Patton produce his firearm and not say anything to Mr Jarvie about getting to the ground. He gave a different description of how Mr Jarvie and Senior Constable Patton came into contact which was in conformity of the evidence of not only Mr Jarvie but also the eye witnesses.
Indeed, as was observed by the learned Chief Judge of the District Court:
“One unusual aspect of the police officers evidence is that Senior Constable Buxton did not see Senior Constable Patton draw his gun. In fact nobody else who gave evidence saw Senior Constable Patton draw his gun.”
Senior Constable Buxton also agreed that Mr Jarvie was convulsing and that the facial/head injury could have been occasioned by way of the contact as a result of the tackle. He also agreed that there was some mention by Patton of Mr Jarvie possibly having a gun but of course that did not make its way into the police statement. Buxton also agreed that he made his statement after reading Patton’s statement some months after the incident.
Mr Jarvie gave evidence as did a number of eye witnesses. Mr Jarvie was emphatic that the initial contact between him and Constable Patton was an accident so far as he was concerned. He had instinctively turned towards the noise he had heard and had braced for impact and then after the impact put his hands up instinctively. He had nothing in his hands. He certainly did not have any gun and indeed at all material times Mr Jarvie has been a person of outstanding good character. In a split second he was hit by Buxton and he could not recall anything about that until he work up in the emergency section of the hospital.
A number of eye witnesses gave evidence supporting Mr Jarvie’s evidence. These witnesses included a law student and a student of architecture. The identity of the nurse, despite extensive investigations, was never ascertained however neither Patton or Buxton recorded her details at the scene.
In cross-examination of Mr Jarvie, it was never suggested that he had any object in his hand, nor that he was involved in any cone throwing incident, nor that Patton pulled out his service revolver, nor told him to get to the ground. In respect of the resist, the police prosecutor could not even suggest that Mr Jarvie was conscious at the time after his head hit the ground as clearly on any view he was convulsing.
It was submitted to Magistrate Culver that the prosecution had not made out its case beyond reasonable doubt. Indeed it was an overwhelmingly strong defence case in which the Court had before it a young man of outstanding good character who had given clear evidence that he had not assaulted, hindered or resisted the police at all. Indeed, quite unusually, Senior Constable Buxton’s evidence supported the evidence of Mr Jarvie as did that of the eye-witnesses.
It was submitted that the initial contact between Mr Jarvie and Patton was entirely the fault of the police officer. It could not be suggested that an initial contact amounted to an assault and indeed for the conduct of the police running at full pace on a very busy place such as the Rocks on a Saturday night gave rise, in objective terms, to a real risk of impact with any member of the public. According to Patton, the members of the public parted ‘as if it was the red sea’.
Mr Walsh submitted to the Magistrate that there could not be an assault if the incident is one over which the accused had no control. The evidence of Patton that somehow Mr Jarvie has leaped 2-3 metres to the left causing initial contact was not supported by any other evidence including that of Constable Buxton. Significantly, the prosecutor had not put the critical aspects of the prosecution case to Mr Jarvie.
At the end of the day, what Mr Jarvie had done in turning towards the noise that he heard and bracing himself could not in any view amount to an assault. Indeed, what he had done was no more than to entirely appropriately defend himself. For instance, the risk of impact with another elderly member of the public, or for that matter a young person, was obvious. It was contended to Magistrate Culver that Patton’s conduct in running at full pace and colliding with Mr Jarvie of itself may have been unlawful as his conduct may well have amounted to an assault in the context of occurring recklessly when he should of foreseen the likelihood of inflicting fear or injury and ignored the risk, Vallence v R (1961) 108 CLR 56.
Magistrate Culver rejected all of the submissions by Mr Walsh and was comfortably satisfied that Mr Jarvie was guilty of each of the offences. The Magistrate considered that the inconsistencies between Patton and Buxton rebutted any suggestion of Mr Walsh’s conspiracy theory. The Magistrate essentially made findings rejecting the evidence of Mr Jarvie and each of the witnesses and accepted that Mr Jarvie had leaped 2-3 metres to the left and shoulder barged Patton who then drew his weapon and told Mr Jarvie to get to the ground, and that because Mr Jarvie did not get to the ground when asked to do so, Buxton physically took him to the ground as a matter of necessity because of the officers fear for their safety.
Magistrate Culver even found Mr Jarvie guilty of the resist arrest despite the overwhelming evidence that he had suffered a very severe head injury consistent with the contemporaneous photographs and rejected any suggestion that he had no volition or control over his acts.
Magistrate Culver rejected Mr Walsh’s contentions that critical elements of the prosecution case were not put to Mr Jarvie and that she found that there was no obligation on the part of the prosecutor to put such essential matters.
Magistrate Culver adjourned the matter for sentence and was initially considering imposing a full-time jail sentence on Mr Jarvie. In this regard, Mr Jarvie in 2006 had suffered a head injury in which he sustained a fractured skull and had been left with ongoing disabilities. His head had made contact with the footpath as a result of being tackled by Buxton, being the same side as the original injury 2 years earlier.
Luke Jarvie had been a member of the Life Saving movement since he was 6 years old and had received many awards as a dedicated life saver. He was also an extremely talented sports person and relied upon a testimonial of his rugby coach who was the Deputy Commissioner of Police in NSW. That person indicated to Magistrate Culver that he had observed Luke to be targeted by opposition players repeatedly over a decade because of his talent as a footballer, and he had never once retaliated on any occasion. His observations of Luke Jarvie was of outstanding good character and that he was contributed much to the community and was an outstanding sportsman. It was a tragedy that as a result of his head injury, he was unable to undertake a course of engineering at university.
Magistrate Culver placed Mr Jarvie on two year good behaviour bond. He appealed to the District Court and his matter was heard by Chief Judge Blanch on 19 November 2009. His Honour upheld the appeal and quashed each of the convictions. His Honour noted in particular that Mr Jarvie was a person of good character and that the way the circumstances had unfolded was more in keeping with Mr Jarvie’s evidence and that of his witnesses than that given by the police.
On Wednesday, 25 February 2004, two sheriff’s officers, Mr Davies and Ms Lomas entered the home of Mr and Mrs Wilson at Leonay with a property seizure order relating to unpaid traffic fines owed by Mr Wilson to the State. A conversation occurred between the officers and the Wilsons through a screen door and then an incident occurred in which the Wilsons alleged that Officer Davies assaulted Mr Wilson by kicking the screen door into his face and the Sheriff’s officers failed to leave the premises notwithstanding a clear instruction by Mr Wilson to go. The Sheriff’s officers claimed that Mr Wilson charged out the door and assaulted Officer Davies who then placed Mr Wilson under arrest. Mr Wilson then locked himself inside of the house and the officers left the premises.
The officers went to the street where the police were called. They observed Mr Wilson to emerge from the house and get into his car in the driveway. Officer Davies entered the premises onto the driveway and removed the keys from the car. A physical altercation occurred between the two men during which Officer Lomas came onto the premises and sprayed Mr Wilson with capsicum spray. There was conflict as to what occurred. The Sheriff’s officers claimed that after Officer Davies took the car keys Mr Wilson punched him and then got out and launched a sustained attack on him against which he was forced to defend himself. Mr Wilson claims that he only used such force by way of response as was reasonably required in the circumstances.
Police Officers, sheriff officers and ambulance officers then arrived. Officer Davies and Mr Wilson were taken to hospital in separate ambulances. The sheriff’s officers went into the house and seized and took away certain goods pursuant to the Property Seizure Order. Mrs Wilson claimed that these officers entered the house without her permission.
On Thursday 26 February 2004, Mrs Wilson paid the outstanding traffic fines but was unsuccessful in her attempt to recover the goods from the Sheriff’s Department.
Two days later on Saturday 28 February 2004 Mr and Mrs Wilson attended at the Penrith Police Station where Senior Constable Janovsky and another police officer interviewed Mr Wilson by way of an ERISP. Mr Wilson claimed that soon after his arrival at the station he was arrested and detained in custody for 4 hours and 20 minutes.
Three weeks later, Senior Constable Janovsky instituted criminal charges against Mr Wilson alleging that he assaulted Officer Davies on 25 February 2004. Janovsky pursued and maintained the prosecution notwithstanding a letter from Mr Wilson’s solicitors dated 9 September 2004 seeking withdrawal of the charges. The charges were ultimately heard in the Local Court but were dismissed on 9 November 2004.
Mr Wilson claimed substantial damages including exemplary and punitive damages.
The issue of trespass on initial entry
Judge Johnstone considered the well known authorities of Halliday v Neville (1984) 155 CLR 1 at 6-9 and Lipman v Clendinnen (1932) 46 CLR 550 at 557-8. The defendant’s case was that the Sheriff’s officers had lawfully entered the premises pursuant to a licence implied by law. The plaintiff’s case was that if the permission or licence to enter premises was withdrawn and the entrant then remains on the premises for an unreasonable time, the entry becomes a trespasser: Cowell v Rosehill Race Course Co Ltd (1937) 56 CLR 605.
Johnstone DCJ held that the licence pursuant to which the officers were on the verandah was never withdrawn. Mrs Wilson did not ask the officer’s to leave and at no stage did Mr Wilson identify himself as someone with the apparent authority to revoke the licence. His Honour was comfortably satisfied that Mr Wilson’s immediate and sudden attack left the officer’s no time to withdraw and as such, the Sheriff’s officers did not commit a trespass.
The issue of estoppel
The plaintiff contended that the defendant was estopped from denying that Officers Davies and Lomas were trespassing during the initial entry. This arose from the initial finding by the Magistrate against the plaintiff to the effect that Davies and Lomas were trespassers from the moment they entered the premises.
Johnstone DCJ found that the parties in both sets of proceedings were not identical. His Honour found that there were no allegations in respect of the cause of action against the Crown and the right of the State of New South Wales arising from the actions of Officers Davies and Lomas. Further, that the doctrine of issue estoppel is not applicable to criminal proceedings: R v Storey [1978] HCA 42 at 39; Rogers v The Queen [1994] HCA 42 at 1.
Did Officer Davies assault Mr Wilson during the initial entry?
His Honour was comfortably satisfied that Mr Wilson assaulted Officer Davies in a manner totally disproportionate to the circumstances that arose and as a result of which Officer Davies was entitled to arrest Mr Wilson immediately after the offence.
The second entry by Davies and Lomas
His Honour found that whilst waiting at the car for the arrival of the police, Davies and Lomas saw the plaintiff exiting the front door of the house and proceed down the outside stairs to a BMW car in the lower driveway. Davies called out “Sir, stay where you are you’re under arrest. The Police are on their way.” The plaintiff however proceeded to the car, got in the driver’s seat, placed the keys in the ignition and started the engine. Davies went up to the driver’s door and said, “Stop.” The plaintiff replied “Fuck you”. Davies reached into the car, grabbed the keys, turned the motor off and pulled the keys out and placed them in his pocket. He told the plaintiff that he was under arrest. At this stage, the plaintiff punched Davies in the chest striking him on the left side and knocking him off balance. Lomas moved out of the driveway and moved towards him. She observed the plaintiff to emerge from the car and scream “I’m not under fucking arrest”. Davies moved towards the rear of the car whereupon the plaintiff charged him and punched him on the left cheek, his head jerked back and his upper body turned to the left but he did not fall over. The plaintiff then struck him with a series of further punches to the head and body. Davies managed to grab the plaintiff’s arms and smother his punches and the two struggles for several minutes. Davies punched the plaintiff on the chin and pushed him to the side of the car. The plaintiff kept struggling and trying to punch Davies. Lomas got out her OC spray and sprayed the plaintiff.
Johnstone DCJ found that the second entry by Davies onto the driveway did not constitute a trespass.
The defendant’s contention that Davies and Lomas were entitled to re-enter the land and seize the car keys to prevent the plaintiff from driving onto a public road relied upon the High Court decision of Gorrin v Nugent [1988] HCA 59 per Brennan J at 16. This contention was upheld by Johnstone DCJ.
Did Davies assault the plaintiff during the second entry?
His Honour found that the plaintiff was wrongfully detained and falsely imprisoned when Davies removed the keys from the car. However, that detention was limited to the plaintiff’s driving of the car. That detention was of an extremely short duration until Davies punched the plaintiff, being an excessive response totally disproportionate to the removal of the keys when he arrested Mr Wilson in the car.
Did Davies wrongfully arrest the Plaintiff during the second entry?
Johnstone DCJ found that the Plaintiff’s response was unreasonable and totally disproportionate in the circumstances. He was under no physical threat; his personal safety was not threatened. The plaintiff did not even get out of the car before he punched Davies. His Honour found that the response of the plaintiff justified Davies in defending himself. Thus, the arrest of the Plaintiff during the second entry was not wrongful.
The seizure of the plaintiff’s goods
Johnstone DCJ found that the goods were not wrongfully detained by the Sheriff for the period from 26 February 2004 to 16 March 2004. See Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54. His Honour found that neither the plaintiff nor his wife revoked the original licence. The other Sheriff’s officers who entered the property were entitled to go onto the plaintiff’s property for the legitimate purpose of executions of a Property Seizure Order and to make enquiries of the plaintiff’s wife. This was particularly so when the plaintiff denied ownership of the contents of the house.
Events at Penrith Police Station
Johnstone DCJ found that Senior Constable Janovsky did not wrongfully arrest the plaintiff at Penrith Police Station on the evening of Saturday 28 February 2004. His Honour found that the Custody Management Record was a totally unreliable record. His Honour found that the plaintiff attended the Penrith Police Station of his own free will. He was never told he was under arrest. In this regard, the lawyers who drafted the original defence admitted the arrest. Johnstone DCJ allowed the admission to be withdrawn.
Johnstone DCJ came to the view that the Custody Management Record was a totally unreliable record.
His Honour despite the use of the word “arrest” as used by Inspector Bisset when questioning Senior Constable Janovsky to that of Inspector Bisset.
Did Senior Constable Janovsky prosecute Mr Wilson maliciously?
Johnstone DCJ considered A v New South Wales [2007] HCA 10 and Hathaway v State of New South Wales [2009] NSWSC 116.
Johnstone DCJ referred to the state of mind of Senior Constable Janovsky that he Janovsky preferred the version of the Sheriff’s officers than that of the plaintiff. As such, his Honour found that Janovsky formed the honest belief that the officers were lawfully upon the premises and, as such, justifying the prosecution. His Honour rejected the proposition that the proceedings were instigated for the improper purpose of satisfying the will of the Sheriff’s office. Also, his Honour rejected the proposition that the proceedings were instituted to discourage the plaintiff from bringing proceedings against him or the Sheriff’s officers.
Did Officers Davies and Lomas maliciously prosecute Mr Wilson?
Johnstone DCJ found that Davies and Lomas did not maliciously prosecute the Plaintiff as neither Davies nor Lomas were prosecutors.
Section 52 and 54 Civil Liability Act 2002 (NSW)
The defendant relied upon the provisions of ss. 52 and 54 of the Civil Liability Act. The defendant relied upon the plaintiff’s “aggressive, excessive and violent” conduct in response to Officers Davies and Lomas.
The plaintiff contended that these sections have no application because the defendant failed to satisfy the Court that any act of physical force employed by the plaintiff to which Davies and Lomas were responding at any time constituted an action for assault, were more than a necessary consequence of their own condition and behaviour.
Johnstone DCJ found that the defendant was entitled to protection provided for in s52 in respect of the allegations of assault and battery in the plaintiff’s second further amended statement of claim.
Disposition
The matter was adjourned for written submissions in light of his Honour’s findings and in particular as to s54, damages and costs.
On 31 July 2009 Judge Johnstone of the District Court delivered reasons for judgment as to damages arising from his Honour’s judgment on liability handed down 30 April 2009.
His Honour at [24] found that the Plaintiff had not proven any psychological condition suffered by him was caused or materially contributed to by any torturous conduct for which the defendant was responsible.
As such, his Honour made no award of damages to the plaintiff by way of compensation for any injury, loss or damage including any special damages, any damages for loss of earning capacity and any damages for pain and suffering or loss of enjoyment of life in respect of any physical or psychological consequences of the torturous conduct which his Honour found occurred.
His Honour then considered s.54 of the Civil Liability Act upon which the Defendant relied in answer to the whole of the Plaintiff’s claim.
His Honour observed that s.54 of the Act does not concern the liability of the defendant but is directed against an award of damages rather than the existence of a liability. It is for the defendant to establish the matters in the sub paragraphs of s.54(1). Evidential Security Services of Australia v Brilley [2008] NSWCA 204 at [124].
His Honour found at [31] that the evidence was insufficient for the Court to be satisfied what matters materially contributed to the plaintiff’s injury or damage let alone that his conduct did so, and if so, what the conduct was, when it occurred and whether it constituted a serious offence. See Fangak v Baxter [2000] NSWCA 264 at [84].
Ex-turpi causa non actio
The defendant contended that the plaintiff was disentitled for recovery of any damages by reasonable operation of the principle of ex-turpi causa non actio, such that his own lawful conduct precludes recovery. This contention relied upon a number of findings of His Honour as to liability.
His Honour observed that the principle of ex-turpi causa non actio was never pleaded. The defendant contended that it was not required to plead reliance upon the principle. His Honour observed that whether or not it should have been pleaded, clearly the plaintiff could not complain that he was taken by surprise.
His Honour observed at [35] it could not have been an intentional parliament to replace the common law principles in the area and as such s.54 of the Civil Liability Act did not replace the doctrine.
The defendant relied upon the assault of Officer Davies by the plaintiff on his verandah and his subsequent resistance and avoidance of the attempted arrest by Officer Davies in giving rise to the precise conduct relied upon. That is the only unlawful conduct on the plaintiff’s part that preceded the torturous conduct of Officer Davies in the second entry onto the plaintiff’s premises.
His Honour at [40] found that the conduct of the plaintiff on the verandah was sufficiently serious or sufficiently proximate to the torturous conduct of Officer Davies in the driveway to preclude the recovery of damages.
His Honour awarded the plaintiff general damages of $15,000. His Honour also awarded the Defendant to pay the Plaintiff’s costs on an indemnity basis.
At 7.15am on 22 November 2006 Iktimal Hage-Ali was arrested at her family home at Punchbowl. She was then 22 years of age. She was arrested allegedly on suspicion of supplying cocaine.
She was transported to Bankstown Police Station where she arrived at approximately 7.35am. She was interviewed from 9.00am onwards. She was released at 10.39am and was not charged.
Ms Hage-Ali asserted that her arrest was unlawful and her subsequent imprisonment false. If the arrest was unlawful, it followed that the imprisonment was false. The basis of the assertion of the unlawfulness of the arrest was that it was non-compliant with the mandatory requirements of s.99 Law Enforcement (Powers & Responsibility) Act, 2001 (NSW).
Ms Hage-Ali asserted that the events surrounding her arrest and detention represented aggravating circumstances of the wrongful arrest and false imprisonment. She claimed compensatory (including aggravated) and exemplary damages arising from her arrest and imprisonment. She was successful in receiving an award of damages of $18,705 on 14 October 2009 after an 18 day trial.
In the period between August/November 2006 Ms Hage Ali purchased or received on credit small amounts of cocaine (either 0.5 or 1 gram) from Mr B. Her purchases in the period were recorded by telephone intercepts undertaken by police on the mobile phone of Mr B. These intercepts were obtained during the course of the operation of Strike Force Kirban which was established in July 2006 within the Middle Eastern Organised Crime Squad. The principal police officers working with the strike force were Detective Sergeant Patton and Detectives Phillips and Dale.
The strike force simultaneously arrested and executed search warrants on three persons, Mr B, Mr K and Mr D. Ms Hage-Ali was arrested at the same time without a warrant. An authorised officer declined to issue two search warrants including one in respect of Ms Hage-Ali.
The practices of Detective Phillips led to the unfounded assertion in the search warrant application for Ms Hage-Ali and the association between her and an unlicensed firearm. The State accepted that this was an error derived from the cutting and pasting of the same contents between the search warrants.
Between 6.00am and 7.00am on 27 November 2006, a meeting took place involving the participation of a large number of police officers charged with the responsibility of executing search warrants, arresting persons of interest and other associated tasks connected to the operational orders. Inspector Patton was the only person to address the meeting. He stated that all persons of interest were to be arrested.
Detective Phillips believed that the order had not been made that persons were to be arrested, the proposed arresting officers would proceed to do so rather than applying their own mind as to whether they should do so. Detective Dale and Sergeant Dyson followed what was a direction to arrest by Detective Patton.
Four police officers attended Hage-Ali’s residence. She was asleep when the officers arrived and she was arrested. She was transported to Bankstown Police Station. She was met by Inspector Patton and Detective Phillips at around 7.45am. Inspector Patton made a large number of phone calls before the commencement of the voluntary interview with her at 9.00am. Various discussions were had between the officers and Ms Hage-Ali including about her pending employment with the Attorney-General’s Department.
A recorded interview took place which lasted one hour in which Ms Hage-Ali participated with Inspector Patton and Detective Phillips. No lawyer was present. Ms Hage-Ali admitted cocaine use but denied supply. Her denial was accepted and no charges were laid.
Ms Hage-Ali was released at 10.39am. She reported her arrest to her employer, the New South Wales Attorney-General’s Department. Ms Hage-Ali asserted that Inspector Patton had leaked her arrest based on some peculiar behaviour of his towards the end of the interview. This formed part of a sustained attack by Ms Hage-Ali on the credit of Inspector Patton.
Ms Hage-Ali saw Mr Talbot from the Deputy Director General of the NSW Attorney-General’s Department later in the day and detailed mistreatment at the hand of police whilst in detention. She left Australia on 17 December 2006 and has not returned to Australia to live.
Judgment on liability
The State bore the onus of proving the lawfulness of the arrest. Zaravinos v State of New South Wales; State of New South Wales & Anor v Zaravinos (2004) 62 NSWLR 58 at [12]. It was common ground that the State required factual findings in its favour to succeed in its defence by reference of the requirements set out in s.99(3) of LEPRA. The necessary factual findings for the State to succeed in its defence were that the two arresting officers, Detective Dale and Sergeant Dyson:
a) turned their mind to whether it was necessary to arrest Ms Hage-Ali;
b) had the requisite suspicion to justify the arrest for any of the reasons specified under s.99(3); and
c) whether the suspicion, if held at all, was based on reasonable grounds.
His Honour Judge Elkain SC did not make any of the necessary factual findings in favour of the State. The State failed to prove its case. He found that Detective Dale and Sergeant Dyson did not have the requisite suspicion as required by s.99(3) and if they did, any such suspicion was not reasonably held; judgment at paras [205],[206],[210] and [211]. The suspicion was not held because they did not turn their minds to whether they needed to arrest Ms Hage-Ali; judgment at [168(b)].