BK v State of New South Wales

1. [1]

   WARD P: I have had the benefit of reading both the judgment of Adamson JA and that of Stern JA. Given the comprehensive analysis by Adamson JA, for which I am grateful, it is not necessary here to summarise what has led to the present application for leave to appeal. For the reasons given by Adamson JA, I agree that leave to appeal (and an extension of time for the bringing of the application) should be granted. For the reasons given separately by Adamson JA and Stern JA, I agree that ground 2 of the grounds of appeal has been established. However, I do not accept that this Court is in a position to determine the issue of liability, for the reasons given by Stern JA, and therefore I would remit the matter for a new trial.

2. [2]

   I make the following additional observation. This was a civil matter. Ordinarily, and for very good reason, parties in civil proceedings should be held to their pleaded case (see, for example, Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-7; 92 ALR 53; [1990] HCA 11 where Mason CJ and Gaudron J emphasised that the rule that, in general, relief is confined to that available on the pleadings, secures a party’s right to this basic requirement of procedural fairness. Here, there was no consent by the respondent to a departure from the pleaded case, let alone acquiescence therein (as Adamson JA has noted at [229]). The pleaded case, relevantly, was that certain named and other unknown police officers “lifted [BK] upwards and slammed [BK] against the ground”. BK’s evidence, as extracted by Adamson JA at [48] was that the uniformed police officers lifted his legs up from behind and “dunked” him on his head first. True it is that neither BK nor his pleaded case described this manoeuvre as him being “speared”, that being her Honour’s description. However, if it were to be accepted that what occurred was what SC Klippert described as a controlled “takedown”, then unless that involved a lifting up and slamming or dunking of BK against the ground, the battery (as alleged) would not be proved. There were inconsistences in the evidence of both BK and SC Klippert. I am not able to form a reliable assessment of either witness on the transcript alone. In those circumstances, a new trial is required in my opinion.

3. [3]

   ADAMSON JA: BK, the applicant, seeks leave to appeal against the judgment in favour of the State of New South Wales (the respondent) entered by Olsson SC DCJ (the primary judge) in the District Court (the Court below) on 10 March 2025, following a trial which had been conducted over 10 days on 30-31 October, 1-3 November 2023 and 5-9 February 2024.

4. [4]

   In the Court below, BK alleged that officers of the NSW Police Force (the police) had committed the intentional torts of:

   1. (1)

      assault by pointing a gun or guns at him and by threatening to call dogs on him prior to his arrest; and

   2. (2)

      battery by using force against him following his arrest on 20 December 2019 for the offences of driving a stolen motor vehicle and being engaged in a police pursuit, which the respondent had not proved to be reasonable.

5. [5]

   It was common ground that the respondent was, pursuant to ss 6 and 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW), vicariously liable for tortious conduct of individual police officers.

6. [6]

   The primary judge rejected both claims. No challenge is made to the rejection of the claim in assault. Although the proposed appeal relates only to the battery claim, the evidence in support of the claim of assault will also be considered because it forms part of the sequence of events against which the credibility of witnesses and objective probabilities are to be assessed.

7. [7]

   A right of appeal is conferred by s 127 of the District Court Act 1973 (NSW). However, leave to appeal is required as BK claimed a total of $85,000 damages in the Court below ($40,000 for general damages; $20,000 for aggravated damages and $25,000 for exemplary damages) which was less than the threshold below which leave to appeal is required under s 101(2)(r) of the Supreme Court Act 1970 (NSW). An extension of time for leave to appeal is required as the summons for leave to appeal was not filed until 18 June 2025. The respondent consented to such an extension being granted.

8. [8]

   The proposed grounds of appeal are as follows:

9. [9]

   BK’s statement filed pursuant to r 51.36(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) identified the following findings which he challenged on appeal and the findings which he contends ought be made by this Court, as follows:

10. [10]

    In substance, BK submitted that the primary judge’s fact-finding function went awry because of her Honour’s failure to apply Browne v Dunn (1893) 6 R 67 and Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. However, BK did not seek a re-trial. Rather, he sought that this Court determine the matter for itself pursuant to s 75A of the Supreme Court Act.

11. [11]

    The grounds of appeal raise serious questions about the fact-finding process undertaken by the primary judge. A grant of leave is warranted. For the following reasons I consider the appeal ought be allowed and judgment entered in favour of BK in the sum of $45,000.

The proceedings in the Court below

1. [12]

   The proposed grounds of appeal require a close consideration of the evidence adduced in the Court below and how the trial was conducted.

2. [13]

   BK pleaded that he had been arrested and handcuffed by Sergeant Justin O’Gorman and Senior Constable Matthew Wilson. His battery claim was pleaded as follows (Red 4):

3. [14]

   In opening, BK’s trial counsel, Mr Chipkin, said that, as BK was being escorted outside the unit towards Perkins Street “the police officers have lifted the plaintiff up off the ground and slammed him into the ground”, as a result of which he “landed against the ground and hit his face”. The surface was “brick pavers”. Mr Chipkin said that BK was also punched, that one of the officers put what felt like a knee on his back and that at some stage in the sequence of those events he was rendered unconscious.

4. [15]

   BK gave evidence (which is considered in more detail below) of the circumstances of his arrest, the assault and the aftermath of these events. He said that he had been driving a stolen car when he appreciated that he was being pursued by police, both on the ground and also in the air by a PolAir helicopter. He abandoned the car and ran through the back door of a residence and went into the bathroom, where he had a shower. When the police came to the bathroom door and said that they would put the dogs on him, he opened the door to be confronted by plain clothes police officers, at least one of whom was pointing a gun at him. He was arrested and handcuffed by plain clothes police officers. While he was being escorted out of the premises along a path, he was met by uniformed police officers, who “slammed” him to the ground and punched him as a result of which he lost consciousness. His next memory was waking up in Nepean Hospital and seeing his mother, who had been contacted by police.

5. [16]

   In addition to giving evidence himself, BK called the following witnesses:

   1. (1)

      RK, BK’s mother, who gave evidence that she had attended Nepean Hospital where he was admitted, having been delivered there by ambulance called by police, and that BK had told her that he had been “bashed” by police;

   2. (2)

      Shane Ackerly, who was on duty at Cobham Juvenile Detention Centre (Cobham) when BK was delivered there at 1.10am on 21 December 2019, who observed that BK was injured, documented the injuries, took a statement from him and assisted him to make a complaint about the conduct of the police; and

   3. (3)

      Patricia Veliz, a solicitor in the Children’s Civil Law Section of the Legal Aid Commission, who interviewed BK on 17 January 2020 and obtained a history from him, which she recorded in a contemporaneous file note of his allegations that he had been assaulted by police and the way in which it had happened.

6. [17]

   BK tendered several documents in his case, which included photographs taken of BK by his mother in Nepean Hospital shortly after his arrival there and by Mr Ackerly, when BK was admitted to Cobham at 1.10am on 21 December 2019, a transcript of the Triple-0 calls made by police regarding BK, the ambulance records and various police documents. These included a Computerised Operational Policing System (COPS) report created by Senior Constable Andrew Klippert regarding BK’s offending and arrest on 20 December 2019 and the Custody Management Record created by Acting Sergeant Matthew Cox, who was the Custody Manager on duty at Mount Druitt police station when BK was brought there following his arrest on 20 December 2019.

7. [18]

   BK also relied on Jones v Dunkel and Browne v Dunn. At trial and in this Court, BK submitted that a Jones v Dunkel inference ought be drawn from the failure of the respondent to call material witnesses, including any of the uniformed police officers to whom BK had been handed over at the front of the premises and who, according to BK, were either responsible for the battery or witnessed it. Although Senior Constable Wilson was not called, BK’s counsel did not seek a Jones v Dunkel inference against him as, although otherwise available, he was absent on parental leave at the time of the resumed hearing.

8. [19]

   BK submitted that as the respondent’s trial counsel had not put the respondent’s case to BK in cross-examination, he did not have an opportunity to answer it and the respondent was, thereby, precluded from advancing its case in submissions.

9. [20]

   The respondent’s case was that BK had fabricated the assault, that he could not be believed because he had an extensive criminal history, that he must have been injured in some other way, including by the impacts occasioned when he was speeding in the stolen motor vehicle and that he was not unconscious because of having been struck by police. It had no consistent positive case as to how BK had sustained his injuries. The respondent accepted in the Court below that if BK’s case was proved as alleged in its entirety, the conduct of the police was unreasonable and the assault and battery case would be made out.

10. [21]

    Paragraph 20 of the amended defence alleged:

11. [22]

    The respondent did not admit paragraphs 21, 23, and 24 and denied paragraphs 22, 23A and 25 of the amended statement of claim (set out above). As to paragraph 26, the respondent alleged that BK was assisted by police to his feet and walked to the police caged vehicle (police van) where he was assisted into the police van.

12. [23]

    The respondent called the following witnesses:

    1. (1)

       Joseph Dodic, the occupant of the unit which BK entered to escape from police, who gave evidence of hailing the police down at the front of the unit and taking them to the bathroom door so that they could apprehend BK. He was unaware of what happened to BK once he had left the unit;

    2. (2)

       Sergeant O’Gorman, a member of the Proactive Crime Team and the most senior officer on duty on 20 December 2019, who gave evidence that he and Senior Constable Wilson arrested BK in the bathroom of the residence, following which he handed BK over to uniformed police officers and returned to speak with Joseph Dodic, the occupant of the premises to make sure that he was all right. He was unaware of any injuries that BK suffered and did not see what happened to him after he handed him over;

    3. (3)

       Senior Constable Klippert, a plain clothes police officer who was also a member of the Proactive Crime Team, and who worked with Senior Constable Elie Saab that day, who gave evidence that he came to the premises after BK was arrested and was being taken out of the premises by Sergeant O’Gorman and Senior Constable Wilson. He said that when BK tried to escape the hold of Sergeant O’Gorman and Senior Constable Wilson, he and other police officers tackled him to the ground, following which BK was able to walk to the police van to be taken back to Mount Druitt police station. Senior Constable Klippert prepared the COPS report, the Court Attendance Notice (CAN) and the facts sheet;

    4. (4)

       Senior Constable Saab, who was also a plain clothes police officer in the Proactive Crime Team, said that he saw BK and several officers outside the unit on a concrete footpath, and that he helped to arrest and handcuff him there;

    5. (5)

       Senior Constable Berger, a general duties uniformed police officer who drove the police truck to collect BK following his arrest. He confirmed the calls he had made to Triple-0 at 11.13am and 11.24am on 20 December 2019 reporting on BK’s condition (which were recorded and transcribed). He said in evidence that he did not recall making any observations about BK’s appearance or noticing whether he had any injuries.

    6. (6)

       Acting Sergeant Cox, who was the Custody Manager on duty at the Mount Druitt police station that day, who gave evidence that he formed the view that an ambulance should attend to BK.

13. [24]

    The following matters were either common ground or were established by uncontroverted evidence. BK was Indigenous and, prior to the events the subject of the proceedings, had a criminal history.

14. [25]

    On 20 December 2019, BK was driving a stolen vehicle in the suburb of Willmot (near Mount Druitt). This led to a police pursuit, which began at about 10.20am and involved a number of police cars and a helicopter. At about 10.45am, BK got out of the car and climbed over a fence on the railway corridor near Rooty Hill train station and ran into a private home unit in Perkins Street, Rooty Hill, where Mr Dodic, who was not known to him, was present. BK ran into the bathroom and fastened the sliding door with a latch. While he was inside the shower, he heard police officers outside the door.

15. [26]

    There is considerable dispute about what occurred between this time and his arrival at the Mount Druitt police station.

16. [27]

    It is not in dispute that BK was arrested, charged at the scene and taken in a police van to Mount Druitt police station where he was put in a custody cell. While still at the scene, police called for an ambulance to come to the station to collect BK. Two further calls were made by police to Triple-0 following his arrival at the station. BK was taken by ambulance to Nepean Hospital, where his mother, RK, who had been called to that location to give her consent to scans and treatment for her son, was waiting for him. A scan revealed that BK’s nose was fractured. Other injuries, including grazes, cuts, lacerations and bruises were also noted.

17. [28]

    BK was later taken to the Cobham where his injuries were also noted and a complaint against police was made.

18. [29]

    BK was 16 years old at the time of his arrest and 20 at the time of the trial. At the time of the arrest, BK was about 165cm tall and weighed between 55 and 60 kgs. At the trial he was 20, weighed about 80kg and was 175cm tall. He identifies as Aboriginal and belongs to the Wangkumara tribe. He was born and raised in Mount Druitt although his people are from Bourke.

19. [30]

    Throughout his childhood and adolescence, BK was “in and out of foster care”, sometimes with his siblings and sometimes without. His mother was “in and out of [gaol]” and his father was “not really around”. At the time of the hearing in the Court below, he was living with his grandfather, who came to court with him. BK said that he had “sort of like a father-son relationship [with his grandfather] with dad not being around”. He has four younger brothers and a younger sister and “had to step up and become the adult in [his] family to raise the younger ones”. This involved “cleaning, cooking, getting them ready for bed and stuff”. He was in too many foster homes for him to recall the number and left school in Year 7 when “[d]rugs, alcohol and stuff c[a]me into play and [he] stopped going”.

20. [31]

    BK said that he started smoking “pot” when he was 13 and drinking alcohol when he was “[p]robably about 14”. He said that he started to take “other drugs” when he was 15 or 16 and said:

21. [32]

    When BK was about 12 or 13 he started “getting into trouble with police” to support his drug and alcohol habit. He said that in Mount Druitt there were “drugs everywhere”. Sometimes he and his “mates” would steal tents and sleep in the bush at Willmot at the back of Mount Druitt. On occasions he was detained at a Juvenile Detention Centre, which he found “scary” because he was “so small and such a little kid” when he first experienced it. However, he learned “a lot being in [custody]” and finished his Year 12 schooling at Cobham where he also started TAFE courses in horticulture and business. He has also participated in traditional rituals and has painted Indigenous cultural works, one of which hangs in the Parramatta Children’s Court.

22. [33]

    BK said in cross-examination that he had been smoking ice for about a couple of weeks before 20 December 2019 but that, prior to that time, he had not been using ice regularly.

23. [34]

    At some time prior to 20 December 2019, BK obtained access to a white Holden Captiva which he knew to be stolen. On the day or two before 20 December 2019, he drove around in the car with a “mate”. He could not recall whether he was wearing gloves but said that he usually wore gloves when he was driving a stolen car so that his fingerprints would not be left on the car.

24. [35]

    On the morning of 20 December 2019, BK smoked some ice and pot and drank a couple of Corona beers before driving the Holden. In cross-examination, he said:

25. [36]

    BK agreed in cross-examination that ice could help him stay “awake and alert”, and feel “very good and confident” and “excited”. He disagreed that it made him feel aggressive, explaining that he was “not really an aggressive person”.

26. [37]

    When BK became aware that the police were chasing him, he did not stop because he was driving a stolen car and did not want to be sent to Cobham. It was common ground that the police pursuit began at 10.20am.

27. [38]

    BK agreed that the car had collided with other vehicles during the police pursuit but said that he did not hit his head or suffer any injuries as a result of these collisions. He said that the window of the Holden was “smashed” and the tyre “popped”. He also said that the petrol was low but had not run out. He said:

28. [39]

    When it was put to him in cross-examination that he had given evidence that he could not recall the collisions, he said:

29. [40]

    After BK had given this answer the following exchange ensued:

30. [41]

    BK knew that his movements were being tracked by PolAir, the police helicopter. He got out of the car next to Rooty Hill train station, jumped over a fence and landed on the other side. His shoelace “got stuck on the barbed wire on the fence and [he] just tripped off the fence” which caused him to fall. As a result of the fall, he got “a little graze on [his] bum or [his] back” but sustained no injuries to his face. He was running because he “was getting chased by the police [having] crashed a stolen car”.

31. [42]

    BK said that he ran into the backyard of a residence and entered through the backdoor to “get out of sight from the helicopter”. He saw a man (Mr Dodic) standing there. BK’s evidence was that he ran into the bathroom, locked the door and jumped into the shower to cool down and get rid of the scent “in case they run the dogs around”.

32. [43]

    From inside the bathroom, BK “heard [the police] banging on the [bathroom] door, saying that they were going to let their police dogs in if [he] didn’t open it”. He turned off the water and stepped out of the shower.

33. [44]

    In cross-examination, he said that there were at least two police officers at the door when he opened it.

34. [45]

    When he got out of the bathroom, he saw three or four plain-clothed police officers who “had their guns drawn” at him. He knew that they were guns rather than tasers because “a taser is yellow and the guns are black”. He confirmed that he had “just seen that one gun, just that first person that was in front of me”. In cross-examination, BK confirmed that Sergeant O’Gorman was the only officer he saw who had a firearm pointed at him. BK also confirmed that he knew Sergeant O’Gorman from his previous dealings with the police as the officer had worked in “the area … for a while”.

35. [46]

    The officer who was holding the gun told BK to “[g]et down” so he “laid down [on his stomach] and [they] put [his] hands behind [his] back.” The police then handcuffed him. BK confirmed in cross-examination that he had not been pulled down onto the floor by the police before he was handcuffed with metal handcuffs.

36. [47]

    BK said that he could not see who had handcuffed him or whether the officer who put the handcuffs on was plain-clothed or in uniform because “[his] head was down looking at the ground”. He was “pretty scared” when he saw the gun but part of him was telling himself that they were not going to shoot him because they were police officers. He described how the police lifted him up off the ground by his arms and two police officers, one on each side, escorted him outside through the front door, each with a “firm grip” on each of his upper arms.

37. [48]

    BK said that when he was still in the area in front of the unit block, before he reached the footpath, “two officers entered the yard and then [he] just felt [his] feet come up from underneath [him] and then just slammed on [his] face”. These two officers were in uniform. BK had the impression that the uniformed officers did not know what to do and were “shit[ting] themselves”. He said that they lifted his legs up from behind and “dunked” him on his head first. BK said:

38. [49]

    He said that his head hit the ground first and also his shoulder. He remained handcuffed from behind. He denied that he was doing anything with his legs or trying to run away or thrashing. He said that after he was “slammed to the ground”, he “just remember[ed] looking up and then an officer c[a]me and … was standing over [him] and hit [him] three [or] four times in the face and that was it”. He could not say which officer it was but said that the officer hit him in the face with a “closed fist” on his jaw. He described his reaction to the event as follows:

39. [50]

    BK said that he was not sure what the other officers were doing when the officer was hitting him in the face. He felt something hard on his back, which may have been a knee.

40. [51]

    He recalled that the police had called him “Craig Smith” and that, as a consequence, he had formed the view that the police thought that he was Craig Smith. The hospital records show his name as being “Craig Smith”. There was no dispute that the records related to BK.

41. [52]

    At 10.54am Senior Constable Klippert made a Triple-0 call asking for an ambulance at “the station” (Mount Druitt police station). He reported to the operator that the person in custody was about 16 years old and “has some minor cuts and scrapes to his hands and knees from breaking into a house”. BK was described as being “completely alert” with “no major bleeding”. The transcript indicated that Senior Constable Klippert estimated that the person (BK) was 16 years old.

42. [53]

    The ambulance records note that a Triple-0 call was received at 10.55am on 20 December 2019. Sergeant O’Gorman identified the voice of the officer who called the ambulance as Senior Constable Klippert.

43. [54]

    The ambulance records later noted that the patient was “Craig Smith”, who was born in September 1999 (and was therefore 20 years old) and lived at an address in Shalvey. It was accepted that the records related to BK, despite these details and that the inference ought be drawn that these details were given to Triple-0 by the police.

44. [55]

    Senior Constable Berger called Triple-0 at 11.13am from Mount Druitt police station where BK was in the custody cells. The recording of the call, which was played as evidence in the trial, indicated that he told the operator that BK was “awake and … somewhat responsive”, “breathing”, and “completely alert”, but that his breathing was “[a] little bit shallow”, and there was “a bit of blood coming from his mouth … and … lacerations on his hands and feet”. The operator told Senior Constable Berger that the ambulance was about 15 minutes away but that if there was any change in BK’s condition, he should “call [them] back immediately for further instructions”.

45. [56]

    At 11.25am, Senior Constable Berger called Triple-0 again. The transcript of the call included the following (Senior Constable Berger was “Respondent 1”):

46. [57]

    According to the transcript, the operator then directed Senior Constable Berger to perform cardiopulmonary resuscitation (CPR) on BK. About nine minutes after the conversation began, the transcript recorded Senior Constable Berger saying, “So it looks like he might be gaining some consciousness.” According to the transcript, the ambulance arrived about two minutes later.

47. [58]

    The ambulance records noted the change in BK’s condition which had been communicated during that call and said (to inform the ambulance officers who were responding to the call):

48. [59]

    An ambulance was despatched at 11.08am (in answer to the first call) and arrived at Mount Druitt police station at 11.31am. BK was “loaded” at 11.33am and arrived at his destination (Nepean Hospital) at 12.22pm and was off the stretcher by 12.47pm. The case history recorded in the ambulance record said:

49. [60]

    The evidence did not reveal which police officer, or officers, were the source of the highlighted passage in the ambulance record.

50. [61]

    The ambulance records also noted that, on initial assessment, BK had an “altered conscious state; laceration”.

51. [62]

    Senior Constable Klippert’s evidence (which is addressed in more detail below) was that the highlighted portion in the extract above (that BK absconded and fell) was inaccurate because there was no mention of BK thrashing his body around or being taken to the ground by police, of which Senior Constable Klippert had given evidence.

52. [63]

    In the statement Mr Dodic signed on 20 December 2019 (the day of the incident), he said that he went out the back when he heard a helicopter and as he looked out, he saw an Aboriginal male, of slim build, coming over the back fence and running inside the house. The male said to Mr Dodic, “help me, help me, the cops are after me”. Mr Dodic said that when BK went into the bathroom, he went out the front door where there were police officers. Mr Dodic gestured to them that BK was in the bathroom. He was adamant that he did not speak to police officers before they entered the property. He also said that BK was handcuffed outside the unit. He agreed that two police officers “marched [BK] out” and were holding onto him “[b]y the arms”. He did not see the handcuffs being put on BK but “assumed” that this was what they were doing when he was “down on the ground outside”, although he did not actually see it happening. He said that he was not interested in what happened once BK was out of his mother’s unit.

53. [64]

    Mr Dodic saw himself as a victim because BK entered his mother’s unit. Mr Dodic agreed in cross-examination that he was not prepared to cooperate with BK’s counsel because they represented BK. The primary judge did not attribute any particular weight to Mr Dodic’s evidence. In any event, on his own admission, he was not in a position to witness the events which are the subject of the alleged claims.

54. [65]

    As at 20 December 2019, Acting Sergeant O’Gorman was stationed at the Mount Druitt police station and was in the Proactive Crime Team, which is predominantly a plain clothes unit and looks after “mid-level crime”, including break-and-enters, stolen motor vehicles and drug supply. As such, he was the most senior officer in that team on duty that day.

55. [66]

    Sergeant O’Gorman denied, in his evidence in chief, that any complaint had been made against him for using excessive force, which he confirmed in cross-examination (evidence to the contrary was led on behalf of BK). In 2021, he was “promoted” to Public Transport Public Safety Command, which was outside the Mount Druitt area.

56. [67]

    Sergeant O’Gorman acknowledged that he and Senior Constable Klippert were friends and socialised with each other at locations outside work. Sergeant O’Gorman confirmed that Senior Constable Klippert had an arm sleeve tattoo.

57. [68]

    Sergeant O’Gorman confirmed that, as at 20 December 2019, he weighed 169kg and when giving evidence on 5 February 2024, he weighed 74kg, having lost more than half his body weight. A photograph taken of him in December 2019 was tendered.

58. [69]

    Sergeant O’Gorman said neither he nor any other officer, either plain clothes or uniform, was wearing a body-worn camera on 20 December 2019. He said that plain clothes officers generally did not wear them in Mount Druitt back then because the camera would have been difficult to wear. That day, Sergeant O’Gorman’s partner was Senior Constable Wilson (that day was his first day in the Proactive Crime Team). As far as Sergeant O’Gorman could recall, the only other members of the Proactive Crime Team that day were Senior Constables Saab and Klippert, each of whom came to the premises where BK was arrested.

59. [70]

    Sergeant O’Gorman had known BK for about five years as a result of at least 50 encounters with him in the Mount Druitt area. He confirmed in cross-examination that some of those encounters were for the purposes of ascertaining BK’s compliance with bail curfew conditions. He agreed that BK was on the Suspect Target Management Program (STMP), with the consequence that BK’s involvement with police was put into a computer and a scale calculated to assess his risk of committing further offences. Sergeant O’Gorman explained that when a person’s scale was at a particular level, “certain disruption and crime prevention strategies are put in place”, including “patrolling the area in which [the person] may live”.

60. [71]

    A VKG (police radio) recording was tendered. Sergeant O’Gorman identified his voice on the recording and explained that the reference to “doggy calling” indicated that a dog squad had been called. As a consequence of what they heard on the police radio, Sergeant O’Gorman and Senior Constable Wilson, who were at the Rooty Hill shops where they had intended to have coffee, drove to Perkins Street, a journey of about three or four minutes. Senior Constable Wilson was carrying the radio as he was the junior officer of the two. When they arrived, Mr Dodic, who was standing outside his front door, waved at them and showed them where BK was hiding.

61. [72]

    As the respondent’s counsel reserved the right not to disclose her witnesses until she actually called them, BK’s counsel put aspects of Senior Constable Wilson’s statement of 18 January 2020 to Sergeant O’Gorman. In cross-examination, Sergeant O’Gorman disagreed with Senior Constable Wilson’s statement that he and Sergeant O’Gorman were on patrol at the time.

62. [73]

    Sergeant O’Gorman and Senior Constable Wilson entered the premises, with Mr Dodic, who took them to the bathroom door and indicated that BK was inside. Sergeant O’Gorman pounded on the bathroom door and said, “We have the unit surrounded. There’s police dogs. There’s a police dog in the area. The chopper is here. You need to come out with your hands up”.

63. [74]

    Sergeant O’Gorman said that he pushed the door open and saw a young man (BK) under the shower, who “immediately adopted a fighting stance and raised his fists”. BK was “in his undies”. Sergeant O’Gorman said that he told BK that he needed to lie down and put his arms straight out but said that BK refused. The officer “moved in [and] attempted to do an armbar take down”, which he explained is “the preferred tactical option to assist someone to the ground [which] usually means extending their arm out … and then placing this moving force down to assist him to the ground”. He said that it did not work as BK was “combative”, was resisting his efforts and that they were both in the shower. He said that it took a few seconds before he and Senior Constable Wilson could “assist him to the ground, maintain control over him and apply handcuffs”. Although Sergeant O’Gorman did not recall handcuffing BK, he confirmed that BK was handcuffed in the shower. He agreed that it was very important to “secure control over [BK] at that point in time [in the bathroom]”.

64. [75]

    Sergeant O’Gorman denied pointing his gun at BK, insisting that it did not come out of its holster. He said:

65. [76]

    However, Sergeant O’Gorman accepted that, when he entered the unit at Mr Dodic’s direction, and stood outside the bathroom door, he was concerned for his safety, at least in part because he did not know who was inside the bathroom or whether the person had a weapon and expected that he would have to enter the room shortly. He agreed, when shown a photograph of the location that the door to the bathroom was, in fact, a sliding door, not, as he had said in evidence, a swinging door.

66. [77]

    Sergeant O’Gorman said that he and Senior Constable Wilson escorted BK out, one on each arm, and, when they were in an alcove about 5-10m away from the front entrance of the unit block in the direction of Perkins Street, they handed him over to the uniformed police officers (whose identity he did not recall) who “have then taken physical control of him”. He said that BK was “still violently thrashing”. He said that he got a clear view of his face but he thought he was Craig Smith and told the officers to whom he handed BK, which included Senior Constable Klippert that he was “Craig Smith”. He did not say anything else at that time.

67. [78]

    Sergeant O’Gorman said that that he “absolutely [did] not” continue with BK towards the police truck. He said that the handover lasted “[a] second [or] two seconds”. Sergeant O’Gorman estimated that there were 6-8 uniformed officers present, including Highway Patrol, when he did the handover. He agreed that he was “adamant” that he handed BK over to uniformed police officers, notwithstanding that Senior Constable Wilson’s statement and the amended defence were inconsistent with there having been a handover.

68. [79]

    When it was put to him in cross-examination, Sergeant O’Gorman disagreed with paragraph 14 of Senior Constable Wilson’s statement dated 18 January 2020:

69. [80]

    Sergeant O’Gorman’s evidence was that he did not see what happened after he handed BK over because it was “all happening behind [his] back”.

70. [81]

    The following paragraph from Senior Constable Klippert’s statement was put to Sergeant O’Gorman who accepted that it made no reference to a handover of BK taking place (by Sergeant O’Gorman and Senior Constable Wilson to uniformed police) and that it said:

71. [82]

    Part of the recording of the police radio was played to Sergeant O’Gorman. He was asked whose voice it was from Mount Druitt 141 (one of the cars for the Proactive Crime Team) who said, “sufficient police on scene” but he could not identify the voice, although he said that it was not his own.

72. [83]

    Sergeant O’Gorman agreed that he made absolutely no contemporaneous notes of what occurred on 20 December 2019 and said that he provided details to Senior Constable Klippert so that he could prepare notes. He did not take his notebook with him when he left the station. He made no notes when he returned to the station although he accepted that it occurred to him that he might be a material witness in the matter. Nor did Sergeant O’Gorman prepare a “formal statement” about the matter. Nonetheless, he said that he was “confident” that the account given in his evidence was accurate although it was almost four years between the incident and his giving evidence (3 November 2023).

73. [84]

    After he had handed BK over to the uniformed officers, Sergeant O’Gorman asked Mr Dodic for a towel as he was “covered in water from the shower”. He denied ever having been told that BK had been punched in the face by an officer. He said that he stayed with Mr Dodic for about five to ten minutes after having handed BK over to the uniformed officers. He then left the scene.

74. [85]

    When giving evidence, Sergeant O’Gorman could not recall being told that BK had suffered injuries connected with his arrest, although he accepted that an ambulance was called and that BK went to hospital. Sergeant O’Gorman accepted that the fact that an ambulance was called to Mount Druitt police station to treat BK, who had just been arrested and at whose arrest Sergeant O’Gorman had been personally present, was something that he would have wanted to know about at the time because it directly related to the welfare of the person in whose arrest he was directly involved. Indeed, Sergeant O’Gorman’s evidence was:

75. [86]

    Sergeant O’Gorman accepted that after he had finished speaking with Mr Dodic, he rejoined Senior Constable Wilson in their police car.

76. [87]

    Sergeant O’Gorman denied having any complaints about him alleging excessive use of force in relation to arrest or in any other context. In cross-examination, BK’s counsel put to Sergeant O’Gorman a complaint made by SK alleging that he used excessive force during an arrest in December 2019. SK’s solicitors said, in their covering letter to the Law Enforcement Conduct Commission (LECC):

77. [88]

    Sergeant O’Gorman said that this was a “false complaint” and that although he was physically present when the conduct occurred, it did not relate to him and he did not do the things that were alleged. He said that he did not disclose it to the Court because it was a case of “mistaken identity”. He also said that he tended to be singled out as the subject of complaints as his substantial weight at that time distinguished him from other police officers.

78. [89]

    BK’s counsel also put to Sergeant O’Gorman complaints which had been made against him by TW, JT and AN. Sergeant O’Gorman denied ever having been made aware of these complaints. He also said that he did not recall a complaint having been made by BK to the LECC about his use of excessive force.

79. [90]

    Senior Constable Klippert gave evidence in the proceedings. As at the time of giving evidence in February 2024, he had been a police officer for 10 years. He was the officer in charge of the investigation into BK. He said that there were not many body-worn cameras available in 2019. He explained that the point of being a plain clothes police officer was not to disguise that you were a police officer because plain clothes police officers still wore lanyards and appointments. He always wore shorts and a t-shirt to work. He has a left arm tattoo which depicts images from Egyptian-themed mythology. He agreed that he socialised with Sergeant O’Gorman.

80. [91]

    When cross-examined about “red mist”, he said that the concept had been mentioned in training and he understood it to refer to becoming hyper-focussed on one particular thing. His understanding was that:

81. [92]

    He denied receiving any instruction about the application of “red mist” in the context of arresting someone.

82. [93]

    On 20 December 2019, Senior Constable Klippert was on duty with Senior Constable Saab. On that day, he heard on the police radio that there was a police pursuit. He said, of his involvement:

83. [94]

    Senior Constable Klippert elaborated on his answer by saying that he went “from the abandoned house, out of the property, back to the front of the property, out onto the footpath area, and then walked down to where they said that they had him in custody”. He recalled that the male (BK) did not have a shirt on, had long, dark hair and was “being escorted to the front of the property by Senior Constable O’Gorman and Senior Constable Wilson”, one on either side. He could not recall whether BK’s hands were behind his back. He said that he could not remember whether BK was handcuffed at that time.

84. [95]

    He described BK as “thrashing his body around and trying to escape”. He said that he was “thrashing arms, shoulders and body, trying to get away, trying to escape the grip”. He confirmed that it was Senior Constable Wilson who had hold of BK at that time but could not remember how he was holding him and said, “possibly his arms, or wrist, or waist area”. After the COPS report was put to Senior Constable Klippert in cross-examination (see below), he agreed that BK had his arms by his sides (as he was handcuffed to the rear) and was not waving his arms around.

85. [96]

    Senior Constable Klippert said that he “ran over to help” and “grabbed him by the body and helped take him to the ground”. He was asked about the mechanics of this manoeuvre in the following exchange:

86. [97]

    Senior Constable Klippert said that he ended up “right beside [BK] on the ground”. He said that this occurred in the area outside the front of the unit block near Perkins Street, as he marked on a diagram. Senior Constable Klippert agreed that there was no mention in the COPS report of BK being taken to the ground when he was being escorted out of the unit.

87. [98]

    He agreed that the police action in taking BK to the ground outside the unit involved a use of force, which resulted in his calling an ambulance. He agreed that he said, as established by the recording of the call, that the person (BK) “has some minor cuts and scrapes to his hands and knees from breaking into a house” but was “completely alert” with “no major bleeding”.

88. [99]

    Senior Constable Klippert denied that BK was unconscious. He said that if BK had been unconscious “that would be a massive … emergency … if [he] noticed [BK] was unconscious, [he] would’ve immediately called an ambulance, put him in a recovery position, CPR, et cetera”.

89. [100]

    Senior Constable Klippert’s evidence was that he saw BK walking to the police van between two uniformed police officers and that he was not unconscious. He could not recall who those other police were.

90. [101]

    Senior Constable Klippert denied seeing any facial injuries on BK and said that he could not recall seeing any other injuries apart from a cut on his leg. However, he agreed when he was shown the transcript of his exchange with the ambulance service on the police radio that he had seen BK with injuries to his “lip or chin”, as well as his hands and wrist area and scratches on his knees. In cross-examination, he also repeatedly described BK’s injury to his nose as a “hairline fracture”, despite having not seen any medical records (which reported the fracture as a “non-displaced fracture”).

91. [102]

    When the recording of the police radio was played to Senior Constable Klippert, he identified the voice which said, “sufficient police on scene” as Senior Constable Saab’s voice. He agreed that the voice which said the following was his voice:

92. [103]

    In the above radio call, Senior Constable Klippert sought to link BK’s injuries to BK having “broke[n] into the house”, despite BK having entered through a sliding door and there being no evidence of BK being injured in the course of entering the house.

93. [104]

    Senior Constable Klippert was shown photographs taken of BK on 20 December 2019. When it was put to him that BK suffered those injuries after being taken to the ground (outside the unit), he said that he did not see them, as appears from the following exchange:

94. [105]

    While Senior Constable Klippert denied that BK was slammed to the ground, he did not deny that he was punched by a police officer as he “didn’t see that”, as appears in the following exchange:

95. [106]

    Senior Constable Klippert’s evidence was that he could not recall whether he was made aware that BK was unconscious at the police station.

96. [107]

    Senior Constable Klippert said that he did not recall seeing BK at the station that day after he returned to do the paperwork. He made a statement on 7 January 2020. He could not recall whether he made any notes in his notebook that day. Furthermore, he said he “couldn’t remember” inquiring about BK’s welfare upon returning to the station, although he accepted that BK was a vulnerable person in custody and that Proactive Crime Unit was located immediately adjacent to where BK was in custody.

97. [108]

    He agreed that his statement included the following:

98. [109]

    He agreed that his statement also included the following:

99. [110]

    Senior Constable Klippert denied that he was trying to provide an explanation for how BK had ended up with his injuries on 20 December 2019 but said that it was a possibility that he had been injured in the course of his actions as described in that paragraph of his statement.

100. [111]

     When it was suggested to Senior Constable Klippert that BK was punched at the scene by a police officer he said that he had not seen that. He said that he left the scene shortly after BK was “taken down”. He could not recall speaking to Sergeant O’Gorman at the police station about what occurred at the scene. This evidence was relied upon by BK in support of the Jones v Dunkel inference (and in this Court in support of ground 2).

101. [112]

     Senior Constable Saab said of his movements on 20 December 2019:

102. [113]

     Senior Constable Saab said that when he returned to the unit block he observed several officers with BK on a concrete footpath. He said that he could not recall how many officers were at the scene, who any of the uniformed officers were or what they were doing although he said that they “would’ve been kneeling”. He could not recall whether BK was face down or face up and had his hands covering his face, which made him think that he was conscious. Senior Constable Saab initially said that he knelt down in front of BK and helped to arrest him by putting him in handcuffs. However, later in his evidence admitted that he could not recall whether BK was handcuffed already. He said that he saw BK being put into the police truck and that he was conscious. He confirmed that there were no seat belts in the police truck.

103. [114]

     When it was suggested to him that BK could not have had his hands up to his face because he was already handcuffed, Senior Constable Saab confirmed that this was what he thought happened but he could not be certain.

104. [115]

     Senior Constable Saab confirmed that he did not make any contemporaneous notes on 20 December 2019 and was not asked to make a formal statement in relation to the matter. In the four years between the incident and his giving evidence (on 7 February 2024), he had been consistently engaged in police work, including making arrests, police pursuits and the like.

105. [116]

     Senior Constable Berger joined the police in August 2018. In December 2019 he was stationed at the Mount Druitt police station as a general duties uniformed police officer. He attended the unit in Perkins Street that day as he had been informed that a police van was required there.

106. [117]

     Senior Constable Berger was in the back of the police truck when other police officers helped BK into the truck. At that time, BK was conscious. He did not recall making any observations about BK’s appearance. When they arrived at the Mount Druitt police station, he helped BK out of the truck, placed him in one of the cells at the police station and booked him into the custody system. Senior Constable Berger said that BK was still conscious but he did not recall making any observations about his appearance or noticing whether he had any injuries.

107. [118]

     Senior Constable Berger confirmed that he was the person who called the ambulance at 11.13am on 20 December 2019 and at 11.24am. Listening to the recording of the call did not assist him to recall either making the calls or any interaction which he had had with BK that day. He accepted that a person being unconscious in police custody was “an emergency situation”.

108. [119]

     Acting Sergeant Cox was the custody manager on duty on 20 December 2019. He knew BK from previous interactions. He also knew Craig Smith for the same reason. When BK came in on that day, he was told it was Craig Smith but because BK’s hair was draped over his face, he did not recognise him. He described his appearance when he came in as follows:

109. [120]

     Acting Sergeant Cox said that he “didn’t have concerns that he was unconscious to the point where he was in danger”. However, he did form the view that an ambulance should attend to BK.

110. [121]

     Acting Sergeant Cox also accepted that it would be an emergency if a person was unconscious in custody. He also agreed that, other than what appears in the Custody Management Report, he did not make any other contemporaneous notes of what occurred on 20 December 2019. He accepted that his evidence about BK not being unconscious was based solely on his own observations and did not extend to the observations of others.

111. [122]

     The CAN identified Senior Constable Wilson as the person who had apprehended BK. Sergeant O’Gorman said that he did not review the facts sheet but was involved in its preparation to the extent that he provided information to Senior Constable Klippert. Sergeant O’Gorman said that as he had not reviewed the facts sheet, he was not able to confirm whether it accurately recorded what he had told Senior Constable Klippert. Sergeant O’Gorman agreed that he spoke to Senior Constable Klippert about the incident at some time before he left work on 20 December 2019, which may have been after his shift finished at 4pm because he tended to “[stay] back”.

112. [123]

     Senior Constable Klippert agreed that he had created the police facts sheet at 1.57pm on 20 December 2019. He agreed that the police facts sheet and the COPS report largely mirrored each other although he also agreed that, whereas the COPS report referred to BK as having “minor injuries”, the facts sheet referred to “injuries” without the preceding adjective “minor”. He also agreed that there was no mention in the facts sheet of BK being taken down to the ground outside the unit, that BK had fractured his nose or that he tried to escape after being arrested. However, he denied providing information to the custody manager, which was inconsistent with the evidence of Acting Sergeant Cox (see below).

113. [124]

     Acting Sergeant Cox agreed that he made the entries in the custody management report. The report recorded under “Brief Assessment” that BK was injured, intoxicated and in pain. The “Comments” under this assessment read:

114. [125]

     This version was relied on by BK’s counsel as one of several “conflicting police accounts” of how BK sustained his evident injuries. Senior Constable Klippert said that he “wouldn’t word it like that, but it’s sort of what happened”. He said that he did not observe BK bleeding from the mouth or any facial injuries. He did not think that he was the source of what was written in the Custody Management Report.

115. [126]

     Acting Sergeant Cox said that he would have obtained the description in the first sentence from one of the escorting officers or arresting officers but that the second and third sentences would have been included in the report from his observation of BK.

116. [127]

     The comment under “Visual Assessment” read:

117. [128]

     Further narrative under the same heading read:

118. [129]

     The officer identified is “Matthew Cox”, who Sergeant O’Gorman identified as the custody manager and the time of the entry is 11.22am and the date is 20 December 2019. Acting Sergeant Cox confirmed these details and that the entries reflected his observations of BK at the time.

119. [130]

     Sergeant O’Gorman accepted that it would “possibly” be a very significant event for a detainee in police custody to be unconscious and agreed that it would be particularly so when the detainee was a 16 year old Aboriginal male because of the protocols that apply to vulnerable persons.

120. [131]

     A COPS report was created for the incident at 13.57 on 20 December 2019 by Senior Constable Klippert. Senior Constable Saab was identified in the COPS report as the “Police in Charge”. Sergeant O’Gorman could not recall whether he reviewed it.

121. [132]

     The COPS report recorded, of present relevance:

122. [133]

     Ms Chrysanthou SC, who appeared with Ms Keesing for the respondent in this Court, accepted that the COPS report indicated that Constables Norris and Caruana were present at the scene.

123. [134]

     Senior Constable Klippert said that although he could not remember whether BK was handcuffed, he accepted that, given what he put in the COPS report, it was likely that he was handcuffed. He agreed that he must have spoken to either or both of Sergeant O’Gorman and Senior Constable Wilson to obtain details of what occurred in the bathroom since they were the only police officers at that location at that time.

124. [135]

     There was no reference in the COPS report to the officers “taking down” BK outside the unit after he had been arrested and handcuffed. Senior Constable Klippert agreed that he was obliged to fill in a “use of force” field in the COPS as force had been used on BK when he was taken down outside the unit. He was unable to explain why he did not complete the field. He was cross-examined by reference to the NSW Police Force Handbook which said, of present relevance:

125. [136]

     BK had no recollection of being taken to Nepean Hospital. He remembered waking up to find RK, his mother, there. She was “screaming and yelling at the police” who were positioned at the door of the little room in the hospital where BK was located. He told his mother that the police had “bashed” him and she took some photographs. He sat there for half an hour before they took him back to Mount Druitt police station.

126. [137]

     RK gave evidence that she received a phone call from the police informing her that BK was in Nepean Hospital so she went there to see him. As he was under the age of 18, her consent was sought for scans to be taken of BK. When she arrived BK was awake and “had bruises all over him and he was very upset and crying”. She took four photographs with her phone “because he was hurt”. She was “very upset and very angry at what [she had] seen”. She said that he did not say much because he was “frightened” as a plain-clothes police officer was “right next to the bed” and another was by the door. However, BK did tell RK that the police had “bashed” him. RK said that while she was with him in the hospital:

127. [138]

     RK said that she could see from looking at his nose that it was fractured and that it was not like that when she had seen him earlier that afternoon. She was definite that she had seen him earlier that day on 20 December 2019 at Westmead.

128. [139]

     Senior Constable Saab said that he went to Nepean Hospital in his own car as BK was to be under police guard (and Senior Constable Saab also needed a tetanus shot because he had cut his knee that morning). He said that BK was conscious and “had his hands still covering his face whilst in hospital”. He said that there was confusion about BK’s identity because the hospital staff believed that he was Craig Smith at the time.

129. [140]

     Afterwards, the police took BK to Cobham, where he told the person who spoke to him (Mr Ackerly) that he wanted to make a complaint about “the broken nose and bruises and stuff”.

130. [141]

     Mr Ackerly, the night supervisor at Cobham, was on duty on the night of 20-21 December 2019. He noted that BK was brought to Cobham at 1.10am on 21 December 2019 by police. He adopted his usual practice of ascertaining that there was a legal basis to detain BK before allowing the police to leave. He was almost certain that he was the person who took photographs of BK shortly after he arrived while he was still in his own clothes. Mr Ackerly took the photographs in case BK wanted to make a complaint because it was “obvious he’[d] been injured”. Mr Ackerly observed “the swelling, the swollen lip, the bruising, the bruising to his eyes, the grazing to his face”, which he described as “clearly obvious”. Mr Ackerly was concerned, having regard to those injuries, about how Cobham was going to keep BK “pain-free and managing through the night”. He also notified the after-hours nurse “so that if there’s any further complications through the night, they’re up to speed with what’s happening”.

131. [142]

     Mr Ackerly also searched BK and arranged for him to change into “Cobham clothes” and arranged for BK’s own clothes to be washed.

132. [143]

     Mr Ackerly then conducted a risk assessment of BK to make sure that he would be managed safely through the night. He appreciated, because he recognised BK, that it was not BK’s first time in custody, that he did not require an interpreter and that he was Aboriginal.

133. [144]

     In the risk assessment form, Mr Ackerly wrote:

134. [145]

     During the risk assessment, BK told Mr Ackerly that he had been to hospital that day (20 December 2019) “for a medical clearance”. Mr Ackerly confirmed that he received medical documents relating to BK when BK was admitted to Cobham. Mr Ackerly said he noted that he saw a medical clearance which said, “Head injury card given and cleared for police and corrective services”. When Mr Ackerly asked BK whether he had lost consciousness or been knocked out, BK said that he was knocked unconscious during the arrest.

135. [146]

     Mr Ackerly also asked BK whether he had taken drugs that day, to which he answered, “no”, which was recorded on the form. In cross-examination, BK agreed that this answer, if he had given it, was untrue. When asked why he had denied it, he said:

136. [147]

     Mr Ackerly also asked BK, “Do you lose your temper easily or have a short fuse?”, to which BK answered, “yes”. Mr Ackerly explained:

137. [148]

     BK was cross-examined about this answer and about his evidence (referred to above) that he was not an aggressive person. He explained:

138. [149]

     Mr Ackerly also filled in a form for the attention of “Professional Standards Command” in accordance with the protocol which existed when a young person makes a complaint of having been assaulted by police. When filling out the form, Mr Ackerly included the following names in the box on the form headed “police involved”, Senior Constable Saab, Senior Constable O’Gorman and Senior Constable Klippert, which he had obtained, as was noted on the form, from the facts sheet. In the place entitled “Brief particulars of injury” Mr Ackerly wrote:

139. [150]

     When cross-examined about the injury to his knee, BK agreed that he might have injured his knee when he landed after jumping over the fence before entering Mr Dodic’s property. In any event, he agreed that he was not sure whether he injured his knee himself although he acknowledged that it was included in the particularised injuries in his amended statement of claim.

140. [151]

     Under the heading, “Circumstances leading up to the incident”, Mr Ackerly included the following:

141. [152]

     Mr Ackerly said that the purpose of this form was to advise the police of the incident which had been alleged. The form was sent by facsimile to police at 3am. He created a separate incident advice which was for Cobham’s own records. He also noted that “[BK’s] mother contacted the centre and advised that she was aware of [BK’s] injuries as she was his support person at the police station”.

142. [153]

     On 17 January 2020, Patty Veliz, a solicitor with the Legal Aid Commission in the Children’s Civil Law Section, interviewed BK at the Parramatta Children’s Court either in the cells or in one of the interview rooms. She made a contemporaneous file note in the interview in which she recorded what BK told her. The note read in part:

143. [154]

     Ms Veliz made a note to get the facts sheet, which the Legal Aid Commission did not have at the time the file note was written as it was the first contact with BK, from the police. Ms Veliz confirmed that all the information in the file note came from BK, including the reference to Sergeant O’Gorman. The heading “Tort instructions” was something that she would have added at the end of the conference. Ms Veliz confirmed that she regarded it as a serious matter as BK was telling her that he had been assaulted. When it was put to her that she would have ensured that she got a “complete and detailed account from the complainant about what occurred”, Ms Veliz said:

144. [155]

     BK agreed in cross-examination that he had not given the detail about his head being lifted by the hair in his evidence in chief.

145. [156]

     By email sent by James Clifford, a solicitor at the Aboriginal Legal Service (ALS) on 11 February 2020, Mr Clifford proposed that BK plead guilty to eight of the nine sequences charged arising from events on 20 December 2019 and that the prosecutor withdraw the ninth sequence (resist arrest). BK agreed in cross-examination that the facts set out in Mr Clifford’s proposal accurately set out what occurred.

146. [157]

     Senior Constable Klippert agreed that he was supportive of the charge of resist arrest being withdrawn and the facts sheet being amended accordingly.

147. [158]

     At the sentence proceedings for these offences, a Youth Justice report dated 6 March 2020 was tendered. It was tendered by the respondent in the Court below. BK gave evidence in the Court below that he did not recall participating in an interview at Cobham for the purposes of a report. In cross-examination, BK was asked about what he understood by the sentence, “[he] [d]oes not engage in consequential thinking”, to which he responded:

148. [159]

     Ms Keesing cross-examined BK about telling Youth Justice that his main goal (when he entered the property on which the unit block was located) was to escape police “by all means”. BK agreed in cross-examination that this was what he was thinking at the time. When it was put to him that he still wanted to escape after he was arrested, he responded:

149. [160]

     BK confirmed that after he was arrested he neither wanted, nor tried, to escape.

150. [161]

     BK said that while he was at Cobham, he spoke to a police officer (Inspector Sean Gabin) who interviewed him, in the presence of a support person, about what had happened and told him that they would assist him with the civil case. The officer took notes which were then typed up in the form of a statement, which BK signed, using his “old signature as a kid” on 15 June 2020 although the date of “2 June 2020” was on the top of the document. The officer who signed the statement next to BK’s signature was Inspector Sean Gabin. The date of 2 June 2020 underneath BK’s signature was altered to 15 June 2020 by Vicki Pannaye.

151. [162]

     In the statement, BK said:

152. [163]

     BK said that the statement did not set out “the full story”. He identified his injuries as depicted in the photographs he was shown as being injuries he sustained that day after his arrest.

153. [164]

     The proceedings in the Court below were commenced by the filing of a statement of claim on 16 February 2022. BK agreed in cross-examination that there was no reference to the police having punched him in the face or the back of his head or pulling his head up by the hair when he was on the ground. He said that he could not have forgotten those details and was not sure why they were not in the pleading.

154. [165]

     BK agreed that the amended statement of claim added paragraph 23A, which alleged:

155. [166]

     BK confirmed in cross-examination that his last “vision of police” that he had seen “before being slammed to the ground” was what was alleged in that paragraph. He also confirmed that he had “lost consciousness at the front of the yard”, after the police “assaulted”, that is, “punched”, him.

156. [167]

     He was asked in cross-examination where the contents of paragraph 26 of the amended statement of claim came from if he lost consciousness after the assault. Paragraph 26 of the amended statement of claim (which was in the same form as in the pleading as filed) alleged:

157. [168]

     Sergeant O’Gorman accepted that the NSW Police Force Code of Conduct and Ethics dated December 2014 said:

158. [169]

     He agreed that relevant factors in the assessment of the level of threat that the subject represents include age, gender, size, fitness and skill level of the subject and of the police officers and their number who are present. He also agreed that police would have to be particularly careful when arresting child subjects and that there would be likely to be scrutiny from the child’s parents.

Other matters occurring in the course of the trial which are relevant to the application for leave to appeal

1. [170]

   BK was cross-examined over three days (during which short witnesses were interposed). He was cross-examined at length about what had occurred in the two days before the police pursuit began, partly by reference to a “background” report (prepared by Youth Justice) which had been tendered in the sentencing proceedings. Mr Chipkin, BK’s trial counsel, objected as follows:

2. [171]

   Further discussion ensued until Ms Keesing, the respondent’s trial counsel said:

3. [172]

   The matter was resolved as follows:

4. [173]

   In final submissions, Mr Chipkin submitted that the respondent’s counsel did not challenge the central facts in issue by putting its case to BK and therefore had not complied with Browne v Dunn. He relied on Bulstrode v Trimble [1970] VR 840 at 846-847.

5. [174]

   In accordance with District Court Practice Note 1 – Case Management in the General List, the respondent provided a “hearing list” of its proposed witnesses to BK’s legal representatives. The Court was provided with this list. Of the witnesses on the list, the respondent called Sergeant O’Gorman, Senior Constable Klippert Constable Berger, Senior Constable Saab, Acting Sergeant Cox, and Mr Dodic. The respondent did not call Constable Caruana, Constable Norris, Constable Hughes or Sergeant Moss. Senior Constable Wilson need not be considered as no Jones v Dunkel inference was sought against the respondent in respect of him.

6. [175]

   The COPS report indicated that Constables Norris and Caruana were present at Perkins Street on 20 December 2019. Ms Chrysanthou confirmed “[t]he two uniformed police officers that were identified were the highway police, and there was no evidence that they saw this interaction”. She said that none of the witnesses on the list, apart from these two officers, was a uniformed officer. She said that the respondent did not know which uniformed officers were present at the time of BK’s arrest and delivery away from that location and that therefore no Jones v Dunkel inference arose. The evidence does not disclose whether Constable Norris was uniformed. However, he is referred to in the amended defence where it is alleged, in paragraph 20(f) that he assisted in restraining one of BK’s legs when he was on the ground.

7. [176]

   The following exchange occurred during the respondent’s opening in the Court below:

8. [177]

   As is evident from the summary of evidence adduced at the trial, the respondent only called one witness who was present inside the bathroom (Sergeant O’Gorman) and only one witness who was present when BK was brought to the ground (Senior Constable Klippert). Sergeant O’Gorman was inside with Mr Dodic after he had handed BK over to uniformed officers; Senior Constable Saab arrived after BK was on the ground outside; and Senior Constable Berger was standing beside the police van to open it for BK but did not give any evidence about seeing BK on the ground. No uniformed officers were called in circumstances where BK’s evidence was that he had been punched by a uniformed officer and brought to the ground by uniformed officers.

9. [178]

   Throughout the trial, the respondent’s counsel, as was her right, refused to indicate which witnesses she would call, and how many, in response to inquiries for the purpose of estimating how much more time needed to be allocated to the hearing of the matter. It can be inferred that several more witnesses were available than were in fact called and that the respondent reserved its right to call whichever witnesses it saw fit to call when the time came.

10. [179]

    On Thursday 2 November 2023, it became apparent that the hearing would not be completed in the five days allocated. By that time, BK’s case had closed and the respondent had opened its case and called Mr Dodic, who had been cross-examined and Sergeant O’Gorman, whose cross-examination had not been completed. Mr Chipkin said (by reference to the “hearing sheet”):

11. [180]

    Subsequently, the following exchange occurred:

12. [181]

    There was a further discussion about whether it would be worthwhile to sit on the following Monday (6 November 2023). The following exchange occurred:

13. [182]

    Ms Keesing repeated what she had earlier said about when the case would finish in the following exchange:

14. [183]

    Before Sergeant O’Gorman was called for resumption of his cross-examination, the following exchange occurred:

15. [184]

    At the conclusion of that day, the matter was stood over for further hearing for five days commencing Monday 5 February 2024. Ms Keesing confirmed that Sergeant O’Gorman was available for that week (as his cross-examination had not yet been completed).

16. [185]

    On 7 February 2024, the third day of the resumed hearing, Ms Keesing informed the Court that Senior Constable Wilson was not available to give evidence as he was on parental leave. Mr Chipkin reserved his position as to whether he would submit that a Jones v Dunkel inference ought be drawn from the respondent’s failure to call him. Ultimately, Mr Chipkin confirmed that he would not seek the inference in relation to Senior Constable Wilson although he pressed the submission in relation to the “unidentified uniformed officers at the scene” in respect of whose failure to give evidence there had been no adequate explanation.

17. [186]

    BK made detailed submissions about the effect of Jones v Dunkel in these circumstances in writing and orally. He relied on the respondent’s counsel’s opening as an indication that several officers who were available to give evidence were not in fact called.

18. [187]

    In his written submissions in the Court below which were handed up on 9 February 2024, BK made lengthy submissions as to why Senior Constable Klippert’s evidence ought not be accepted. BK continued:

19. [188]

    This submission was also put orally as follows:

20. [189]

    After BK’s counsel finished his submissions, the primary judge took the luncheon adjournment to permit the respondent to finalise its written submissions. After the luncheon adjournment, Ms Keesing provided the written submissions and addressed orally. The respondent submitted:

21. [190]

    In her oral submissions, Ms Keesing responded to BK’s alternative case as follows:

22. [191]

    This submission was repeated as follows:

The primary judge’s reasons

1. [192]

   The primary judge was satisfied that BK was handcuffed when he was first detained by police in the bathroom. Her Honour regarded it as implausible that BK would not have been handcuffed having “just led the police on a high speed pursuit and then fled on foot” or that the police would have escorted BK outside without properly securing him: J [199]. Her Honour said at J [202]:

2. [193]

   The primary judge said at J [204]:

3. [194]

   Neither party in this Court was able to identify any evidence to support this finding beyond that of Senior Constable Klippert.

4. [195]

   However, the primary judge found that it was likely that BK had tried to escape from police as he was being escorted down the path in front of the premises and that he was tackled to the ground: J [206]. Her Honour accepted that Senior Constable Klippert believed it to be necessary to tackle him to the ground and that the force used caused the injuries sustained by BK which were depicted in the photographs and recorded in the hospital notes: J [207] and [209].

5. [196]

   The primary judge noted that BK became non-responsive and possibly unconscious after he was booked into custody at Mount Druitt police station but he was not unconscious when he was at the scene or being loaded into the police truck or booked into custody: J [211]. Her Honour said at J [212]:

6. [197]

   Her Honour said at J [213]:

7. [198]

   The primary judge continued:

8. [199]

   On this basis, her Honour ordered that there be “verdict” (sic, judgment, as there was no jury) for the respondent. Her Honour declined to make an order for costs because of the way in which the respondent conducted the case, including by unnecessarily prolonging it: J [218].

9. [200]

   Her Honour did not address BK’s submissions that a Jones v Dunkel inference ought be drawn against the respondent on the basis that it had not called any of the uniformed police officers who were on the scene.

The grounds of appeal

1. [201]

   BK alleged that, in her cross-examination of BK, the respondent’s counsel did not challenge BK’s evidence that:

   1. (1)

      the police threatened to use a dog;

   2. (2)

      the police pointed a firearm at him;

   3. (3)

      he was picked up and slammed to the ground outside;

   4. (4)

      he was punched by a uniformed police officer;

   5. (5)

      he was rendered unconscious by the forces involved; or

   6. (6)

      he was lying or mistaken about his account of the assault.

2. [202]

   He submitted that, in these circumstances, the primary judge ought to have given more weight to BK's evidence and that her Honour was in error in failing to do so.

3. [203]

   Ms Chrysanthou submitted that (1) and (2) above are irrelevant in this Court as the rejection of BK’s claim in assault is not challenged. Further, she submitted that, in circumstances where BK had been charged and had been served with a police brief, which contained various police statements, it was not necessary for the respondent’s case to be put to him in cross-examination. She put it to this Court as follows:

4. [204]

   Ms Chrysanthou submitted that it was “[a]s a matter of fairness, for the purposes of Browne v Dunn, completely unnecessary” for the respondent’s trial counsel to put the respondent’s case to BK in cross-examination. She also submitted that it would have been open to BK’s counsel to make a request under s 46(1) of the Evidence Act 1995 (NSW) that he be returned to the witness box after the respondent’s case had closed, in order to put questions to him arising from the way the respondent’s evidence fell out.

5. [205]

   The service of material on a party is not sufficient to comply with the rule in Browne v Dunn. What is required is that a party knows what the opposing party’s case is and that it be put, where relevant, to particular witnesses in order that they have an opportunity to respond. In cases where the pleadings are extensive and the evidence in chief is given by affidavits which are read at the outset of the hearing, it is not generally necessary that this be done since this process will already have been achieved by the exchange of affidavits. What amounts to sufficient notice is a question to be determined by reference to concepts of fairness: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1.

6. [206]

   But the purpose of Browne v Dunn is not limited to procedural fairness. Compliance with the rule also serves the purpose of enabling the tribunal of fact (whether judge or jury) to observe the response of a witness, including a party who is a witness, to the propositions put on behalf of the party undertaking the cross-examination: Mokbel v The King [2025] VSCA 243 (Mokbel) at [474] (McLeish, Kennedy and Kaye JJA). Failure to comply with the rule can have the consequence of reducing the weight given to evidence which is inconsistent with the evidence of the relevant witness: Mokbel at [477]. Indeed, “judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with [the rule in Browne v Dunn]”: MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [39] (Gummow, Kirby and Callinan JJ), applied in Karout v New South Wales Crime Commission [2025] NSWCA 260 at [197] and [201] and Smith v Blanch [2025] NSWCA 188 at [94] (Kirk, Stern and McHugh JJA).

7. [207]

   I do not accept that the answer to a breach of Browne v Dunn is that the other party (not in breach) is required to seek to recall its witness pursuant to s 46 of the Evidence Act to ask the witness questions which ought to have been put by opposing counsel: see the discussion in Khamis v R [2010] NSWCCA 179; (2010) 203 A Crim R 121 at [44] and [51]-[52] (Whealy J).

8. [208]

   In the circumstances of the present case, the rule in Browne v Dunn required the respondent’s trial counsel to put the respondent’s case, at least as to what occurred outside the unit block after BK’s arrest, to BK in cross-examination. This was particularly important in the present case where the police documents did not document what occurred during this period and the report to ambulance officers (that a police officer had told them that BK “fell”) was inconsistent with Senior Constable Klippert’s version. While the respondent had no positive case as to how BK had sustained his injuries, including to his nose, it did have a positive pleaded defence that the takedown outside the unit was controlled and that BK did not lose consciousness until he was in police custody at the Mount Druitt police station. Although a formulaic recitation of a case to the opposing party, or witness, is not required, it is, for the reasons given above, nonetheless desirable, particularly in a case such as the present which depends on oral evidence, that a party’s case be put. In the present case, it was not clear until the respondent closed its case, that the only witness on whose evidence it relied in its defence of the battery claim was Senior Constable Klippert.

9. [209]

   Of the topics listed in [201] above, I consider (3) (that BK was picked up and slammed to the ground) to be the most significant. It was common ground that BK was brought by police conduct from a standing position to a position where he was face-down on the ground. The mechanics of his descent were in issue. BK gave evidence of how it felt to him. Given the primary judge’s finding that BK was handcuffed, it was, as referred to above, not open to the police to use the armbar takedown which had been used to bring BK to the ground in the bathroom. That the mechanics of this manoeuvre were not put to BK is telling. I do not regard this omission as explicable by oversight by the respondent’s counsel. Rather, the omission can be explained by an objectively reasonable forensic decision on the part of the respondent (which was vicariously liable for the acts of its police officers but which did not represent them) to see what evidence the respondent’s witnesses gave and to make final submissions which reflected the evidence which was in fact given. This conclusion is fortified by the respondent’s counsel’s disclosure to the primary judge that she had been given certain “instructions” on 3 November 2023 which would have the effect of shortly bringing the respondent’s evidence to an end (see the extract above).

10. [210]

    When Senior Constable Klippert gave evidence in the respondent’s case, he described, in broad terms, the mechanism whereby BK was brought to the ground (as extracted above) and confirmed that he did not lift BK up and turn him over (from which it followed that BK was put to the ground face down, with, as the primary judge found, his arms handcuffed behind him). BK was not given the opportunity of responding to this version since it was not put to him in cross-examination. Nor was the mechanism used evident from the pleadings or from the respondent's opening (which simply referred to “a controlled take down” in paragraph 20(d) of the amended defence).

11. [211]

    Ground 1 has been made out to the limited extent expressed above.

12. [212]

    The applicable principle was articulated by the majority in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]:

13. [213]

    There is no indication in the reasons of the primary judge that her Honour drew a Jones v Dunkel inference against the respondent or, indeed, that her Honour considered BK’s submissions that such an inference ought be drawn.

14. [214]

    Mr Canceri, who appeared with Ms O’Rourke for BK in this Court, submitted that this failure compromised the fact-finding process and impugned the primary judge’s assessment of the evidence of what occurred, relevantly, during the alleged battery. He submitted that both aspects of Jones v Dunkel were engaged: that is, the primary judge was permitted to infer that the uncalled evidence would not have assisted the respondent’s case and that her Honour could, more readily, draw an inference against the respondent because the uncalled evidence would cast light on whether the inference ought be drawn.

15. [215]

    Ms Chrysanthou submitted, first, that there was no basis for a Jones v Dunkel inference to be drawn since the respondent did not know who the unidentified officers were; and, second, that there was no need for the respondent to call more than one witness of the “take down” and that it was sufficient that it had called Senior Constable Klippert.

16. [216]

    I do not accept that the respondent did not know who the unidentified uniformed officers were. It is an unusual proposition that the respondent was not able to determine which of its uniformed police officers attended a significant event such as the present. When Ms Chrysanthou was asked to point to the evidence of her client’s ignorance of the identity of the uniformed officers (which may have explained their not being called), she pointed only to the evidence of the witnesses who were in fact called who could not name the uniformed officers who were present. She confirmed that none of the police officers on the hearing list (identified above) was a uniformed officer.

17. [217]

    The principle in Blatch v Archer (1774) 1 Cowp 63 at 65 (Lord Mansfield CJ) is that “all evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted”. If the respondent wanted the Court to accept that it was unable to establish that it could not identify any of the 6-8 uniformed officers (Sergeant O’Gorman’s estimate) who were present when he handed BK over to them, this was a matter for it to prove. The onus of establishing unavailability is on the party against whom Jones v Dunkel operates: Cross on Evidence (Lexis Advance), [1215]; Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 75 ACSR 1 at [457] (Austin J). As the respondent has failed to adduce any evidence to that effect, I am not satisfied that this is the case.

18. [218]

    While the rule does not require a party to call merely cumulative evidence, the question whether a Jones v Dunkel inference is appropriately drawn depends on the circumstances. This Court said in Liaweena (NSW) Pty Ltd v McWilliams Wines Pty Ltd [1990] NSWCA 194; (1991) ASC 56-038 (Kirby P):

19. [219]

    There is an important qualification to the general principle that a party need not call multiple witnesses to prove the same thing. In Cubillo v Commonwealth (2000) 103 FCR 1; [2000] FCA 1084 at [360] (O’Loughlin J):

20. [220]

    I reject the submission that because Senior Constable Klippert, who was present at the scene of the first stage of the alleged battery (which resulted in BK being on the ground) was called, there was no reason for the respondent to call any other witnesses who were also present. Sergeant O’Gorman’s evidence was that he handed BK over to uniformed officers. BK’s evidence was that he was confronted and attacked by uniformed officers. Senior Constable Klippert, who was a plain clothes police officer, came to “help” (implicitly, other officers) take BK down. In Fabre v Arenales (1992) 27 NSWLR 437 at 449–50, Mahoney JA (Priestley and Sheller JJA agreeing) said at 436:

21. [221]

    It is also, in my view, significant that the primary judge referred to “unsatisfactory aspects of Senior Constable Klippert’s evidence” (J [207]) since it provides some indication that, had the primary judge applied Jones v Dunkel, her weighing up of the evidence of BK and that of Senior Constable Klippert may well have produced a different result.

22. [222]

    Further, Senior Constable Klippert’s evidence was that he left the scene after BK was on the ground and did not see him being punched (as distinct from denying that he was punched). In these circumstances, the Jones v Dunkel inference is strong since no witness called by the respondent actually saw what happened immediately after BK was taken down, which was when, on BK’s evidence, he was punched. Senior Constable Saab arrived later and Senior Constable Berger did not see what happened as he was beside the police van.

23. [223]

    I am persuaded that ground 2 has been made out. A Jones v Dunkel inference was not only available but, in my view, ought to have been drawn against the respondent for its failure to call any uniformed officers. Her Honour was in error in failing to address the submission made on behalf of BK which relied heavily on the failure of the respondent to call any uniformed officers. Her Honour was also, in my view, in error in failing to draw the inference. This failure, in my view, infected the fact-finding by her Honour since it deprived BK of the benefit of the inference and did not take account of the forensic environment in which the respondent can be taken to have decided not to call any of these officers.

24. [224]

    The consequence of this ground having been made out will be addressed below.

25. [225]

    BK argued that the consequence of error being established in ground 1 or 2 was that the primary judge ought to have accepted BK’s evidence of what occurred: namely that he had been picked up off the ground by police and slammed into it and while on the ground police punched his face and head. This ground depends on whether it is appropriate for this Court to determine whether the respondent is liable to BK or whether a new trial ought be ordered. This issue is addressed later in these reasons.

26. [226]

    BK argued that, although it was common ground that the respondent bore the onus of proving lawful justification and although the primary judge set out the authorities to that effect at J [174]-[181], the primary judge reversed the onus of proof in her ultimate finding. BK relied on the following passages from the primary judge’s reasons:

27. [227]

    Ms Chrysanthou submitted that the question of lawful justification did not arise since BK did not establish the battery as alleged in his pleaded case and that, therefore, his claim must fail.

28. [228]

    The respondent submitted in the Court below, in substance, that BK had to prove his pleaded case in its entirety in order to succeed and that, for example, if the Court did not accept his evidence that he had been punched, the Court could not find a battery because that was part of his pleaded case.

29. [229]

    If the pleading point is made good, it would not be open to the Court to find for BK on an alternative case in circumstances where the respondent could not be said to have acquiesced in BK going beyond the pleaded case: Cf. Water Board v Moustakas (1988) 180 CLR 491 at 497-498 (Mason CJ, Wilson, Brennan and Dawson JJ); [1988] HCA 12 (Water Board); Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70.

30. [230]

    The law as to pleadings and evidence of witnesses is neither so rigid nor so unreal. As was said in Water Board at 497, “[i]n deciding whether or not a point was raised at trial no narrow or technical view should be taken.”

31. [231]

    Further, juries are routinely directed in criminal trials that they may accept part of a witness’s evidence and reject another part, Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, [7-020]:

32. [232]

    This accords with the law as summarised in CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [94] (McKerracher, Robertson and Lee JJ):

33. [233]

    As set out above, the pleaded case was that the named and unnamed officers lifted BK upwards and slammed him against the ground where he landed on his face, following which he was punched.

34. [234]

    In its defence, the respondent said that as escorting police were taking BK to the police van, he tried to escape and Senior Constable Klippert went to assist (escorting police officers) and executed “a controlled take down of [BK] to the ground” as a result of which BK, Senior Constable Wilson and Senior Constable Klippert “went to the ground” and Constable Norris assisted in restraining one of BK’s legs while he was on the ground.

35. [235]

    There was no evidence to contradict BK’s evidence that he was face down on the ground. Since he was handcuffed, his being brought to the ground meant that he was disabled from breaking his fall with his arms. Thus, from his point of view, any action which caused him to “go down” could have been experienced by him as being “slammed to the ground” since force was involved in getting him from the upright position to a horizontal position. While he referred to being “dunked” in his evidence, this was only one word that was used by him. He also described it thus: “two officers entered the yard and then [he] just felt [his] feet come up from underneath [him] and then just slammed on [his] face”.

36. [236]

    The word “speared” was not used by BK; nor did he agree with it when it was put to him. It was a word coined by her Honour and adopted by the respondent’s counsel in her opening. That her Honour found that he had not been “speared” is immaterial since this was neither BK’s case nor his evidence. Further, while it was open to Sergeant O’Gorman to perform an “armbar” takedown in the bathroom, this possibility was no longer open as BK (as the primary judge found) was handcuffed when he was taken down outside the unit.

37. [237]

    The respondent was on notice that BK alleged that there was a battery committed when he was outside the unit after he had been arrested and handcuffed, when he was “slammed” to the ground by police and punched. In order to prove the battery, BK could have proved either the slamming or the punching. This does not mean that, on any permutation, the respondent ought be held to its concession that if the battery, involving the takedown occurred as alleged in the pleading, it was without lawful justification since the respondent’s concession depended on the punching also being established as part of the battery.

38. [238]

    In so far as the respondent alleged that it would have concentrated more on lawful justification if BK’s allegations had been expressed differently, it would appear that this forensic course was taken because of a mistaken view that BK must fail if he did not prove that he was punched, since that, too, was pleaded. As I do not accept the force of the pleading point, it is necessary to address the substance of ground 4.

39. [239]

    The legal principles are well established. The tort of battery is a sub-category of the tort of trespass to the person. It is constituted by the intentional act of a person directly causing harmful or offensive physical contact with the person of another: Sappideen and others, Fleming’s The Law of Torts (11th ed, 2024, Lawbook Co) at 2.60. It is actionable per se: that is, the plaintiff need not have suffered injury in order to bring an action in battery. Once battery was established, the onus fell on the respondent to prove lawful justification under ss 230 or 231 of LEPRA, which provide:

40. [240]

    In Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980, Ierace J articulated the test for force to be “reasonably necessary” at [186]:

41. [241]

    His Honour’s use of the double negative in the formulation of the test reflects that the onus lies on the police as the user of force.

42. [242]

    The primary judge’s apparent reversal of the onus of proof is highly significant in the present case for the reasons given below.

43. [243]

    Ground 4 has been made out.

The question of relief

1. [244]

   BK does not seek a re-trial. Rather, he seeks judgment from this Court pursuant to s 75A of the Supreme Court Act. The respondent submitted that if any of the grounds of appeal have been made out, the only relief that can be obtained is a re-trial. Ms Chrysanthou also submitted that a re-trial ought be limited to the claim in battery as the primary judge’s rejection of the claim of assault had not been challenged.

2. [245]

   This Court “may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires”: s 75A(10). A new trial will only be ordered in circumstances such as the present if it is not appropriate for this Court to exercise its powers under s 75A of the Supreme Court Act: see also UCPR, r 51.53.

3. [246]

   I am not satisfied that a new trial is required. While the primary judge’s fact-finding was compromised by the errors referred to above, I am not persuaded that this Court cannot proceed to find the facts on the basis of the evidence as authorised by s 75A against the background of those facts as found by the primary judge which are not impugned by the errors established. In these circumstances, the credibility findings which her Honour made which are affected by the error established in ground 2 are not entitled to the usual deference which this Court would give to findings which may be said to be based on the advantages enjoyed by trial judges: see the discussion in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [25] (Gleeson CJ, Gummow and Kirby JJ) and Warren v Coombes (1979) 142 CLR 531 at 552-553 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9.

4. [247]

   In the present case, it was common ground that the issues of credibility were not demeanour-based and were largely determined by the primary judge by reference to the objective probabilities (as reflected in her Honour’s finding that BK was arrested and handcuffed by Sergeant O’Gorman and Senior Constable Wilson in the bathroom, before being escorted outside the unit) or by reference to the witness’s inconsistent statements (for example, that BK had given different versions about how many police officers had their guns pointed at him). Further, as the primary judge’s reasons were delivered over a year after her Honour reserved her decision and almost 18 months after BK’s evidence had been completed, it may be that her Honour’s findings were largely based on the transcript of evidence and documentary exhibits in any event. This is not a case such as Chen v State of New South Wales [2014] NSWCA 41 where the unresolved issues of credibility (including the identity of the person who had deleted relevant photos) were held to require a new trial: [88] (Basten JA, Meagher and Tobias JJA agreeing).

5. [248]

   This course would also advance the overriding purpose, as provided for by s 56 of the Civil Procedure Act 2005 (NSW), to facilitate the just, quick and cheap resolution of the real issues in the proceedings. While the trial in the Court below was neither quick nor cheap, it would, in my view, be “just” for this Court to determine the matter finally in the exercise of its powers under s 75A of the Supreme Court Act. There would be little to be gained and much to be lost by a re-trial: while the trial judge would have the benefit of hearing all the oral evidence of witnesses, the memories of all witnesses can be expected to be adversely affected by time. If the transcripts of their evidence were tendered, the trial judge would not be in a better position than this Court to assess their evidence. Further, the parties ought be bound by their forensic choices at the trial before the primary judge.

6. [249]

   Under s 75A(6) of the Supreme Court Act, this Court has the powers and duties which the primary judge had, including those concerning the drawing of inferences and the making of findings of fact and the assessment of damages. The nature of this task was explained in Fox v Percy at [25] in the following terms:

7. [250]

   Having regard to the way in which the trial was conducted in the Court below and the issues on appeal in this Court, I consider that this Court’s powers under s 75A are subject to the following limitations. As BK did not challenge the primary judge’s rejection of his claim for assault in this Court, this does not arise for consideration in this Court. Further, there is no reason to disturb the following findings of the primary judge since they were not affected by error:

   1. (1)

      BK was arrested and handcuffed by Sergeant O’Gorman and Senior Constable Wilson in the bathroom before he was escorted outside the unit; and

   2. (2)

      the force used to bring BK to the ground was considerable and was capable of causing the injuries to his face.

8. [251]

   The evidence of the alleged battery is very confined. The evidence discloses three versions by eyewitnesses to the manner in which BK came into contact with the path outside the unit block. These are:

   1. (1)

      BK’s evidence that he was “slammed” to the ground and that his face and shoulder hit the path;

   2. (2)

      Senior Constable Klippert’s evidence that there was a “controlled take down” of BK in which he was involved in assisting other officers (none of whom was called); and

   3. (3)

      the statement of an unidentified officer to the ambulance officers that after BK “absconded during [his] arrest [he] subsequently fell landing face first on [the] footpath”.

9. [252]

   I infer from the evidence of BK, the fact that he landed face down on the hard surface of the path and that he had previously been upright that at least the force of gravity caused his face to hit the path as he was brought to the ground by force used by the police. He could not break his fall with his arms as they were handcuffed behind him. I do not regard the evidence of Senior Constable Klippert as providing a credible alternative version, including because it was substantially based on BK’s arms being free at the time. Other matters which impugned Senior Constable Klippert’s credibility are referred to below.

10. [253]

    Further, BK’s version derives considerable support from the observation of the unidentified police officer which was reported in the ambulance record (“Police state Pt [patient] absconded during arrest and subsequently fell landing face first on footpath.”) Unlike the police officers, the ambulance officers were relevantly disinterested. The person who took this note had no interest but to record accurately what he or she had been told by police. The ambulance record is a business record within the meaning of s 69(1) of the Evidence Act. It is, accordingly, evidence of what the police officer said and of the underlying facts. There is no reason to doubt that the police officer who spoke to the ambulance officer said what is recorded as having been said, since the respondent did not call any evidence which would otherwise explain the entry.

11. [254]

    The question of the underlying facts is more difficult to resolve. The police officer’s statement that BK “absconded during arrest” is unreliable in at least two respects. First, BK was handcuffed in the bathroom and escorted by Sergeant O’Gorman and Senior Constable Wilson outside the unit where he was handed over to uniformed police officers (of whom there were several). Second, even if BK thrashed around (as the primary judge accepted he did), he did not “abscond” as he was, at all material times, handcuffed and in police custody.

12. [255]

    The second part of the statement – that BK “subsequently fell landing face first on [the] footpath” is problematic in one respect and supportive of BK’s case in another. The words “subsequently fell” are inconsistent with there being physical contact between BK and the police at the time he went from being vertical to horizontal. The use of the word “subsequently” implies that there was an interval between BK’s “absconding” and his face hitting the footpath. The statement is materially inconsistent with Senior Constable Klippert’s version that there was a controlled take-down, since there is nothing controlled about a fall. However, the statement to the ambulance officers supports BK’s version of how his face was injured (and, by implication, his nose was broken) since his “landing face first on the footpath” is consistent with BK’s version that he could not break his fall as his hands were handcuffed and that his face hit the footpath.

13. [256]

    In this respect (how BK went from standing up to lying prone on the footpath), the only real difference between BK’s evidence and the statement of the unidentified police officer is that BK said he was pushed (“slammed”) and the unidentified police officer said that he “fell”.

14. [257]

    It can reasonably be inferred that the version given by the unidentified police officer (which is unsupported by other evidence in the respondent’s case) was designed to give the ambulance officers an explanation for BK’s injuries which did not implicate the police. If BK absconded and then he fell, this would not indicate that any force was used by the police and would be consistent with BK’s injuries being, in substance, his own doing. However, this version was not supported by any sworn evidence and was inconsistent with Senior Constable Klippert’s version. A Jones v Dunkel inference arises, not only that the evidence of the officer who spoke to the ambulance service would not have assisted the respondent’s case but that BK’s version can more readily be accepted in the absence of evidence from that source. It is also significant that evidence was not called from Constable Norris who, according to the amended defence, “assisted in restraining one of [BK’s] legs whilst on the ground.”

15. [258]

    There were, as the primary judge noted, several unsatisfactory aspects of Senior Constable Klippert’s evidence. These include:

    1. (1)

       his serial failures to comply with police protocols and procedures;

    2. (2)

       his repeated failure to acknowledge the extent of the injuries sustained by BK, including in his initial call to Triple-0, in the COPS report and in his evidence (which are detailed above in the summary of his evidence);

    3. (3)

       his attempts to attribute BK’s injuries to other matters (such as when BK “broke” into the house, when all that was required to enter was for BK to open the back door);

    4. (4)

       his failure to include the events outside the unit in the COPS report (of which he was the original author) or to fill in the mandatory field that force had been used;

    5. (5)

       his failure to make any contemporaneous note in his notebook of what had occurred; and

    6. (6)

       the several inconsistencies between his evidence and that of Sergeant O’Gorman as to the timing of the arrest and the application of handcuffs and whether there was a handover of BK.

16. [259]

    I have also taken into account that Senior Constable Klippert’s version was not put to BK in cross-examination (for what I apprehend was a good forensic reason, as outlined above) and no other officer who was involved in bringing BK to the ground or who witnessed this occurring was called by the respondent to give evidence. I also draw the two inferences available on the basis of Jones v Dunkel: first, that the evidence of the officers who were not called would not have assisted the respondent’s case; and second, that the inference can more readily be drawn that BK’s version is accurate.

17. [260]

    While BK’s evidence was, in some respects, unreliable, a reading of the transcript of his evidence indicated that he was, largely, giving evidence to the best of his ability and making appropriate concessions. For example, he readily admitted that he lied to Mr Ackerly about not taking drugs in the previous 24 hours and explained that he did so, in order not to get his family into trouble. In respect of his other injuries, for example, the grazes to his legs, he also admitted that he did not know if they were a result of his fleeing the police and getting out of sight of the helicopter or as a result of direct contact with the police. He denied having suffered any injuries while he was driving. Although BK said, one might think somewhat glibly, that if he had hit his nose in a car crash (which he denied) he would not know if he had broken his nose while driving, this evidence, in the context of his evidence as a whole, does not support the proposition that he injured his nose, or any other part of his head while driving. The video from the PolAir helicopter also does not indicate that he hit his head while fleeing from police on foot. Further, had the laceration to his nose, which was evident from the photographs his mother took in hospital, been present when he was arrested in the bathroom, it can be expected that Sergeant O’Gorman would have noticed it. The ambulance officer noted in their record that BK had “[o]bvious facial trauma [to his] mouth/nose.”

18. [261]

    Although the primary judge did not, ultimately, accept BK’s evidence that Sergeant O’Gorman had pointed a firearm at him, the primary judge couched her finding in J [216] (“[a]lthough it is not free from doubt, I am not satisfied that Sergeant O’Gorman raised his firearm to the plaintiff’s face”) in such a qualified way as not to reflect particularly adversely on BK’s credit. Rather, this statement reflected her Honour’s appropriately cautious approach, in circumstances where BK had also given a version that more than one gun was pointed at him.

19. [262]

    BK’s version is the only version available of what happened once he was on the ground and before he was escorted to the police van since Senior Constable Klippert was, by that time, inferentially, not in a position to see what happened (as he said he did not see a punch and left the area soon after BK was brought to the ground) and no uniformed officer was called. No witness, who was in a position to observe what happened in this time period was called by the respondent: Sergeant O’Gorman was inside with Mr Dodic; Senior Constable Klippert did not see it but did not deny it; Senior Constable Saab had not yet arrived on the scene and Senior Constable Berger was waiting beside the police van but did not see BK until he was approaching the police van.

20. [263]

    The Jones v Dunkel inferences are even more powerful in respect of the alleged punches. Effectively, the plain clothes officers left BK to be dealt with by the uniformed officers. I accept BK’s evidence that he was punched by unidentified police officers while he was on the ground.

21. [264]

    Not only was BK’s evidence not contradicted by anyone who was in a position to see whether he had or had not been punched, but his evidence was supported by the observations of ambulance officers, as well as contemporaneous complaints to his mother at the hospital (that he had been bashed), to Mr Ackerly, who was so concerned about his appearance that he raised the question as to how the injuries had been sustained, and to Ms Veliz on 17 January 2020. Their evidence of his representations is first-hand hearsay and therefore is an exception to the hearsay rule under s 64 of the Evidence Act. Thus, these complaints are evidence of the truth of the complaint, as well as supporting the credibility of BK. Evidence of complaint is not, strictly speaking, corroborative since it does not come from an independent source: Eade v The King (1924) 34 CLR 154 at 157 (Knox CJ, Gavan-Duffy and Starke JJ); [1924] HCA 9; Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 (Papakosmas) at [17] (Gleeson CJ and Hayne J). However, it is regarded as supporting the credibility of the complainant (Papakosmas at [16]-[17]), particularly when given at the earliest opportunity, as it was in the present case.

22. [265]

    The evidence of RK, BK’s mother, of the fear BK exhibited at Nepean Hospital when he hid under the covers and told her that he had been bashed is also relevant and powerful evidence. It was consistent with his having been attacked by police that he show fear in circumstances where one police officer was right beside his bed and another was stationed at the door. The evidence of his distress was admissible and relevant to the question whether he had been attacked by police: cf. Papakosmas at [20] (where the distress, uncontrollable crying and complaint that the complainant had been raped was relevant to the jury’s determination of whether she had consented to sexual intercourse).

23. [266]

    It is also significant that BK had injuries which could not otherwise readily be explained. They were obvious to those who saw them (the ambulance officers, his mother and Mr Ackerly). There is a stark difference between, on the one hand, the descriptions given by police of the injuries in their evidence and, on the other, the descriptions in the clinical records of Nepean Hospital and the injuries as shown in photographs taken on 20 and 21 December 2019. The insouciance displayed by the police in their evidence about BK’s physical condition (including the evidence of Sergeant O’Gorman and Senior Constable Klippert that they did not check on him while he was in police custody at their police station) is belied by the concern expressed by Senior Constable Berger in the third Triple-0 call that BK could not be roused. I do not regard it as going against BK’s credit that he did not recall the intervening events between being punched and waking up at Nepean Hospital where his mother was waiting for him. That he does not recall the intervening period does not mean that he was untruthful.

24. [267]

    The police officers involved can be taken to have appreciated that, if BK’s evidence was accepted, there could be serious disciplinary ramifications for the officers directly involved as well as those who witnessed their conduct if they did not reveal it. It appears that there was an unspoken consensus on the part of the plain clothes police officers neither to record, in their notebooks or in official reports, what occurred outside the unit or to name, either in any record or in their oral evidence, a single one of the uniformed officers, other than Constable Norris, who was in a position to witness what happened.

25. [268]

    The evidence adduced by the respondent appears to have been carefully curated so as to expose the smallest possible target so that the respondent could present its case as a “word-on-word” case requiring a judgment to be made by the tribunal of fact whether:

    1. (1)

       to accept Sergeant O’Gorman’s evidence that he did not remove his gun from the holster or BK’s evidence that a gun or guns were pointed at him (for the alleged assault); and

    2. (2)

       to accept Senior Constable Klippert’s evidence that there was a controlled takedown of BK or BK’s evidence that he had been pushed (“slammed”) down onto the footpath (for the alleged battery).

26. [269]

    For the reasons given above, including those relating to the forensic potency of the unidentified police officer’s statement to ambulance officers that BK “fell” (which was entirely inconsistent with the respondent’s pleaded case), I accept BK’s version of the circumstances of the battery in so far as he said that he was “slammed” onto the pavement. I do not consider that his use of the word “dunked” was apposite, since BK’s injuries were to his face and not to the crown of his head, but I do not consider that this slight infelicity of language adversely affects his credibility in that respect.

27. [270]

    But for Mr Ackerly’s concern that BK’s injuries, which were obvious when he presented at Cobham at 1.10am on 21 December 2019, may have been sustained while in police custody and the contemporaneous photographs taken by BK’s mother and Mr Ackerly, the events the subject of proceedings might never have come to light.

28. [271]

    For the reasons given above, I am satisfied, on the balance of probabilities, having regard to the seriousness of the allegations and the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 that BK has proved his case of battery: that a police officer or officers pushed him to the ground, face down, with the consequence that he suffered injuries to his face as he was unable to break his fall with his hands (which were restrained behind his back with handcuffs). I am also satisfied, on the basis of his uncontradicted evidence and his immediate and contemporaneous complaints that he was punched by a police officer or police officers. His otherwise unexplained injuries to his face are also corroborative.

29. [272]

    The respondent accepted that, if BK proved his case as alleged, there was no lawful justification to the tort of battery. Lest there be any doubt as to the relevance of the concession, I will express my finding on that question.

30. [273]

    I cannot accept that a reasonable person in the position of the several (at least six) police officers present at the scene would not consider action which had the consequence of bringing to the ground (a hard brick surface), a 16-year old boy weighing 55kg whose hands were handcuffed behind his back to be disproportionate to the risk that he might escape (being the only risk identified). Indeed, had he been “thrashing around” when Sergeant O’Gorman and Senior Constable Wilson escorted him from the residence, a reasonable response would simply have been for them to keep hold of him rather than to transfer him to other officers. The primary judge was correct to wonder why the police officers could not “subdue him without tackling him to the ground”: J [231]. Had her Honour applied the correct onus of proof, her Honour would have found that the defence had not been made out.

31. [274]

    The defence of lawful justification has not been made out.

32. [275]

    For the reasons given above, BK is entitled to judgment on both aspects of his claim in battery.

33. [276]

    The primary judge did not assess damages. It is preferable for trial judges to assess damages even if they find against a plaintiff on liability: Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 at [113] (French CJ, Kiefel, Bell, Keane and Nettle JJ). As this did not occur in the present case, it would ordinarily be for this Court to assess damages based on the evidence in the Court below and by reference to the submissions made by the parties on the quantum of damages.

34. [277]

    However, as my view is a minority one and the Court, by majority, proposes to order a re-trial, it is preferable that I not express my view as to the quantum of damages to which BK would be entitled, since this will be a matter for the trial judge on the re-trial.

Proposed orders

1. [278]

   For the reasons given above, I propose the following orders:

   1. (1)

      Extend the time for filing the summons for leave to appeal to 18 June 2025.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Allow the appeal.

   4. (4)

      Set aside the orders of Olsson SC DCJ made on 10 March 2025 and, in lieu thereof, make the following orders:

   5. (5)

      Order the respondent to pay the appellant’s costs of the appeal.

2. [279]

   STERN JA: For the reasons set out below I agree that the appeal should be allowed. I agree with Ward P that a retrial is required. This is not a case in which I am able to form a sufficiently reliable assessment of whether the alleged battery occurred on the material before the Court. I also agree with the additional observation of Ward P at [2].

3. [280]

   As to ground (1), I disagree with Adamson JA that there was a breach of the rule in Browne v Dunn. The respondent’s case, as put in its amended defence filed on 27 October 2023 at [20], was that BK resisted being escorted out of the unit complex and sought to escape the hold that police had on him as they were escorting him towards the police caged vehicle, in response to which SC Klippert went to assist and executed a controlled “take down” of BK to the ground” and “[BK], SC Wilson and SC Klippert went to the ground”. Whilst the respondent’s pleaded case was that it was SC Wilson and SC O’Gorman who were escorting BK at the time, it was nonetheless tolerably clear to BK how the respondent put its case, and what the respondent said led to BK being taken to the ground by police as he was being escorted to the police caged vehicle.

4. [281]

   Further, in his police statement dated 7 January 2020, SC Klippert said that he approached as SC O’Gorman and SC Wilson were escorting BK out of the house and observed BK “try and quickly escape [SC] Wilson by moving his hands quickly and running” at which point he “ran over and grabbed [BK] and took him to the ground with the assistance of other Police”. Again, whilst the evidence at trial was inconsistent with it being SC O’Gorman and SC Wilson who were escorting BK at the time, the case as put by the respondent at trial was consistent with this account as set out in SC Klippert’s statement.

5. [282]

   In these circumstances, I consider that BK was given adequate notice that the respondent’s case was that he was seeking to escape the hold that police had on him and, in that context, was taken to the ground in a controlled manoeuvre: see, eg MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [39]. It was to this case that BK’s oral evidence was directed when he was asked by his own counsel, in some detail, about what occurred just prior to him being taken to the ground by police officers, including whether he was doing anything with his arms or legs, or trying to run away or thrashing his body about, and when he was asked, again in some detail, about how he was taken to the ground by police. As to the latter, BK’s oral evidence in chief, given on 30 October 2023, was that he felt his legs come from under him and then “just, like, slammed to my face”. In his oral evidence BK also said that the police “[l]ike, dumped me onto my face” and “[t]hey lifted my legs from behind and sort of, like, dunked me on my head first” and that his “face first” and shoulder hit the ground.

6. [283]

   Fairness did not require that BK be cross-examined as to whether his recollection of events was consistent with what SC Klippert said in his police statement, or that BK be recalled to be cross-examined by reference to SC Klippert’s oral evidence, given on 6 February 2024, that he “grabbed [BK] by the body and helped take him down to the ground … grabbing [my] hands, and thus using my body weight and taking him down to the ground”. That oral evidence was consistent both with the substance of SC Klippert’s account given in his police statement and with the defendant’s pleaded case (of which BK would be presumed to be well aware).

7. [284]

   As to ground (2), I agree with Adamson JA that an adverse inference should have been drawn against the respondent by reason of the failure to call any evidence from any police officers, other than SC Klippert, who may have witnessed or been involved in bringing BK to the ground between Mr Dodic’s unit and the police caged vehicle and in what occurred thereafter whilst BK was on the ground (putting to one side SC Wilson, as to whom different considerations arose, as explained by Adamson JA). In addition to the matters relied upon by Adamson JA, it is of some significance that the evidence of SC O’Gorman was inconsistent with that of SC Klippert to the extent that SC O’Gorman said that he and SC Wilson were not holding BK at the time when, according to SC Klippert, BK sought to escape the hold of police resulting in him being taken to the ground. Further, SC Klippert did not describe BK being handcuffed at that time and instead described him as thrashing his arms about. There were thus significant aspects of SC Klippert’s account that did not accord either with the evidence of others, or with what was found to have occurred, which made the omission of evidence from any of the other police officers who were apparently present all the more meaningful.

8. [285]

   I agree with Adamson JA that, by reason of this error, the appeal should be allowed.

9. [286]

   In my view, however, the appropriate consequence of this error is that there should be a retrial to enable the issue of what occurred in the period between BK leaving Mr Dodic’s unit and him being put in the police caged vehicle to be determined giving due regard to the rule in Jones v Dunkel as explained above.

10. [287]

    In the course of the retrial, it will be necessary for the trial judge to consider whether or not the facts as found are consistent with BK’s pleaded case as to the alleged battery by the police officers. In this regard, one key question is whether the mechanism by which BK was brought to the ground by police, as pleaded in his amended statement of claim at [22], has been proved. The trial judge does not appear to have made any determination as to this, save for her conclusion that she was “not satisfied to the requisite standard that he was “speared” into the ground” (at [215]). On its face, it is far from clear that this was a finding which responded appropriately to BK’s pleaded case, as elaborated upon in his submissions below.

11. [288]

    As to this, it should be observed that BK’s oral evidence was broadly consistent with his pleaded case, in that he explained that “I just felt my feet come up from underneath me and then just slammed on my face”, and that the police “dumped me onto my face”. BK’s written closing submission at trial referred to him being dunked and slammed into the ground and, consistent with this, his counsel’s closing oral submission was that he was “lifted up by police and he was dunked and slammed head first into the ground”. That need not involve “spearing”.

12. [289]

    If, for example, the judge retrying the case was satisfied that the police manoeuvre involved BK being lifted upwards by police with his face or shoulder then hitting the ground first without his fall being broken by police (noting he was in handcuffs), that may suffice for BK to have met the onus of proving the facts upon which his allegation of battery rests. If so, it would then be necessary for the judge on retrial to determine whether the respondent could meet its onus of establishing a defence. As is clear from her judgment at [213], that is something that the trial judge declined to consider.

13. [290]

    I agree with Adamson JA that BK’s claim in trespass does not turn upon whether or not he can show that he was also punched by police officers. BK’s claim in trespass, as pleaded and as amplified at trial, involved the manoeuvre by which he was taken to the ground and being punched, each of which was capable of amounting to a trespass. Proof of either would suffice for BK to succeed in his claim in battery, subject to whether the respondent establishes a defence.

14. [291]

    Unlike Adamson JA, on the material before the Court I am not satisfied that I can properly reach a reliable conclusion either way as to whether BK has proved his claim in battery. As Adamson JA observes, SC Klippert described what occurred to BK as “a controlled takedown of [BK] to the ground”. That may or may not involve the battery alleged by BK. That requires some assessment both of the credibility and reliability of BK’s account of what occurred and of the remainder of the evidence, including the evidence of SC Klippert. It also requires an assessment of what the manoeuvre performed by SC Klippert actually entailed and how it was that BK was taken to the ground. Moreover, as Adamson JA also observes, an unidentified police officer appears to have told the ambulance officers that BK fell when he absconded during the arrest. If the Court were satisfied that that is what occurred, then that would not involve a battery as alleged by BK in these proceedings.

15. [292]

    Further, on the material before the Court, I am unable to reach a reliable conclusion as to whether BK’s claim that he was punched by police officers has been made out. Again, that requires an assessment of the credibility and reliability of BK’s evidence. The transcript and other evidence before me do not permit me to make that assessment.

16. [293]

    Unlike Adamson JA, I am not satisfied that the trial judge erred as alleged in ground 4. This is because it is not clear what her Honour was addressing in her judgment at [214], where she said that she was not satisfied that “unreasonable force was used to subdue” BK. Her Honour does not appear there to be considering the question whether a defence had been established to the tort of battery, as it is only after making this finding that she addresses the question of liability in battery. Thus, it seems that at [214] her Honour was considering a separate, unpleaded, issue, being whether unreasonable force was used in BK’s arrest.

17. [294]

    In light of my conclusions as set out above, I propose the following orders:

    1. (1)

       Extend the time for filing the summons for leave to appeal to 18 June 2025.

    2. (2)

       Grant leave to appeal.

    3. (3)

       Allow the appeal.

    4. (4)

       Set aside the orders of Olsson SC DCJ made on 10 March 2025.

    5. (5)

       Remit the matter to the District Court of New South Wales for retrial.

    6. (6)

       Order the respondent to pay the appellant’s costs of the appeal.