Houda v The State of New South Wales

COOPER AJ: By his Statement of Claim filed on 7 August 2003 the plaintiff sued three police officers plus the State of New South Wales alleging malicious prosecution, false imprisonment, wrongful arrest and assault and claimed general compensatory damages, special damages, aggravated damages, exemplary damages, costs and interest.

On 4 March 2004 an order was made by consent that the proceedings against the first, second and third defendants (the named police officers) be dismissed pursuant to section 9D of the Law Reform (Vicarious Liability) Act 1983 as amended.

The events giving rise to this action took place at about 10:30 on the morning of Friday 25 August 2000 in the vestibule adjacent to the court rooms on the first level of the Burwood Local Court.

The plaintiff, dressed in a suit with collar and tie, was there in his capacity as a solicitor and was awaiting the arrival of two clients. Constable Lance Stebbing, dressed in police uniform, whose actions form the basis of the plaintiff’s claim was also present at that time and place for the purpose of giving evidence in a case listed in one of the court rooms.

The versions of what occurred differ markedly between that presented on behalf of the plaintiff and that presented on behalf of the defendant.

The plaintiff’s version as particularised in his Statement of Claim is that Constable Stebbing approached him and initiated conversation with him. He then placed the palm of his right hand onto the plaintiff’s chest and pushed him. The constable then continued to walk towards the plaintiff in a threatening manner and the plaintiff responded to defend himself by placing his right hand in an open position in front of the chest of Constable Stebbing who then pushed him a second time using the palm of his right hand upon the plaintiff’s chest. Thereupon the plaintiff was arrested and charged with assaulting Constable Stebbing.

To be more precise, the charge was that on the 25th day of August 2000 at Burwood in the State of New South Wales he did assault Lance Stebbing then being a constable in the execution of his duty under section 60 of the Crimes Act 1900. (Exhibit E).

It is common ground that that charge was withdrawn and dismissed on 12 February 2001 before the Local Court at Burwood.

The version of events pleaded by the defendant in its Amended Defence alleges that the plaintiff approached Constable Bergamin in the presence of Constable Stebbing and after such approach acted in an aggressive manner. Shortly afterwards, the plaintiff was requested by Constable Stebbing to step away which the plaintiff refused to do. Constable Stebbing sought to have him leave the area given his then behaviour, and in doing so raised his right hand and put it to the plaintiff’s chest. Constable Stebbing’s hand was knocked away by the plaintiff who continued with his aggressive behaviour refusing to step away and later striking Constable Stebbing in the chest with two open hands. During the course of the contact Constable Stebbing feared that the plaintiff was going to strike him. As a consequence of the actions of the plaintiff Constable Stebbing with the assistance of two other police officers arrested the plaintiff for assaulting him.

The first task in the resolution of this case is to determine what did occur between the plaintiff of the one part and Constables Stebbing and Bergamin of the other.

A number of witnesses have been called by both parties on this issue. It is proposed to summarise the evidence of each in turn. EVIDENCE CALLED FOR THE PLAINTIFF. The Plaintiff

He arrived at the court house shortly after 10:00am and there saw a man, Joseph Ayoub, who was a client of his but not in respect of any case for hearing on that day. The plaintiff was aware that he was a person who had mental problems and was speaking to him. The plaintiff said that whilst he was speaking to Mr Ayoub Constable Bergamin came over to them and said to Mr Ayoub “After court today I am going to be arresting you.” The plaintiff said that he then moved away because he did not wish to be involved in that particular matter.

He saw Constable Bergamin walk away from Mr Ayoub and start speaking to two police officers one of whom was Constable Stebbing. They were about five metres to his right. Joseph Ayoub approached him and said something to him and suddenly he was approached by Constable Bergamin who asked him if he was Joseph’s lawyer. He replied that he was his lawyer but not in relation to any matters on that day.

She then began to explain that she wanted to charge and arrest him to which he replied with words to the effect:- “You can do what you please, but I give you a friendly tip. Be careful how you approach this person because he is quite dangerous. I have spoken to Dr Roberts about him and that is what he tells me. Just be careful. If you approach him gently, maybe you will be able to get what you want out of him much easier. Just be nice to him”.

He testified that she replied to the effect: “Ok. Just recently, I went to arrest him and he slammed the door in my face”. The plaintiff replied “No problems. I agree he’s problematic”. The plaintiff described this conversation as quite friendly.

His evidence was that while he was speaking to Constable Bergamin he noticed that Constable Stebbing was looking at him in an unfriendly way. While he was speaking to her he was approached from his right by Constable Stebbing who said to him whilst pointing at him “Now you, you treat this officer with respect”.

The plaintiff claimed that he was quite stunned by this approach, looked at Constable Bergamin and then replied “I am speaking to the officer with the most ultimate respect, so could you please mind you own business.” Constable Stebbing then walked towards him pointed toward the staircase and loudly said “Fuck off”. There were then at least fifty other persons present in that vestibule.

The plaintiff said that he was shocked and responded “Well this is a person talking to me about respect. Well that is very respectful officer. How dare you swear at me in front of all these people”.

Constable Stebbing kept walking towards him then pushed him with his right hand on the chest.

This caused the plaintiff to stumble back and for him to respond “What the hell are you doing, you idiot.” Constable Stebbing walked towards him and said “Get out of my personal space. Get out of my personal space”.

The plaintiff replied “Where do you want me to go, you idiot? I have a wall behind me. I am waiting for my client. I have a job to do here. Where do you want me to go? Where do you want me to go?”

Constable Stebbing repeated “Get out of my personal space” and pushed him again in the chest with his right hand. The plaintiff said that by this time he hit the wall which was behind him, he could not go anywhere, he was frightened because this person who was a police officer had the audacity to assault him in front of all these people and he thought he must be “crazy”.

As Constable Stebbing was walking towards him the plaintiff said words to the effect “Please stay off me” and he put his right hand up with an open palm facing the constable who kept walking towards him repeating words to the effect “Get out of my personal space”. The constable came into contact with his hand.

Constable Stebbing then cocked his head towards the side, told him he was under arrest and two police officers came over and grabbed him and told him he was under arrest for assaulting a police officer.

The plaintiff protested that it was Constable Stebbing who had assaulted and swore at him. He looked at Constable Bergamin and said “You just -you have seen everything. Are you going to get involved here? Are you going to come to my aid?” She did nothing.

The two officers were grabbing onto his arms very tightly and hurting him. He said to them “Look I’m a solicitor. I’m not going to run away. Why are you grabbing me like this?” One replied “You are a prisoner now, pork chop that is the way we have to detain you”. The plaintiff asked if he could take the names and addresses of witnesses. This request was denied. He was then taken to Burwood Police Station. Lyndal Patricia Francis.

She was present in that vestibule waiting to give evidence as a witness in an offensive language charge on behalf of the defendant. Her attention was attracted by the sound of a man’s voice fairly upset saying “You’re an idiot. You’re a deadset dickhead.” She turned around to see what was going on. She saw Constable Stebbing approaching the plaintiff from “sort of behind him” and reaching within close speaking distance of him. They were moving from her right to her left in front of her with the plaintiff ahead. Constable Stebbing came up behind the plaintiff who turned around to speak to him. She did not hear all of the words spoken but heard mostly from the constable. She then saw Constable Stebbing push the plaintiff in the upper chest area with what she believed was his right hand. She called it a “hefty shove” because the plaintiff staggered back a few steps. Thereupon Constable Van Akker and another uniformed police officer grabbed the plaintiff. As they were dragging him away the plaintiff was saying words to the effect of “he pushed me why aren’t you arresting him”.

She next saw the plaintiff later in the day when he returned and spoke to her and obtained her contact particulars.

She thought that the incident had happened just before lunch and that the plaintiff approached her after lunch. She is mistaken in this detail.

She said that she heard the police officer use not only the word “dickhead” to the plaintiff but she also heard him tell the plaintiff to “fuck off” when he pushed the plaintiff.

Exhibit H is a photocopy from her diary in which she made an entry from her memory of the events on 27 August 2000. It is of assistance to set out that entry:- “The other day I had to go to court. There was a lot of sitting around. At one stage a raised voice saying “You are an idiot, a deadset idiot” turned heads. The voice came from a short man with a shaved head wearing a leather jacket. He was berating another one wearing a suit. The dialogue was two sided but I could only hear when the voices were raised and heard very little of what the suit said. The cop was behaving in an extremely aggressive manner. He was like a dog barking at a stranger on the property. The Campsie police approached them and the cop then said “fuck off” and pushed this guy in the chest hard enough to send him staggering back. He gained his balance and stepped forward and it looked like he was going to push back when Van Akker said “You are under arrest” and they grabbed the suit. He said loudly “ He pushed me first. Why don’t you arrest him”. I did not hear any answer. They dragged him off protesting loudly.”

In her evidence at page 208 she said that she heard the plaintiff raise his voice only when he was arrested and that, up to that stage, the plaintiff appeared to be trying to placate Constable Stebbing who was very upset.

She described the events as the plaintiff moving away from the constable and from where she was sitting it looked as if Constable Stebbing was in pursuit of him. Her evidence was that the plaintiff walked from the door of a court maybe twenty metres, maybe not that far, when he stopped. Constable Stebbing did not stop until he completely caught up with the plaintiff and was abusing him all the way. She added that her impression was that the police officer was in pursuit of the plaintiff with the intent of assaulting him and that he was really angry.

She said that the only words she heard were words like “deadset idiot” and “dickhead” coming from Constable Stebbing. She could not hear what the plaintiff was saying because he was speaking quietly.

She said that when the police officer caught up with the plaintiff and the plaintiff had turned around neither of them were up against anything but she thought there may have been some seats a bit further back behind the plaintiff.

She denied that the plaintiff appeared to be red in the facial area or that he had spittle coming out of his mouth whilst he was talking to Constable Stebbing and said that she was in sufficiently close proximity to have seen that if it had occurred. Kelvin Michael Farrington.

He was present at the court with Karl Bosworth who was a party to a case then awaiting hearing.

He was sitting talking when he heard a loud voice behind him. He turned round and saw three people in a loud discussion. There was the plaintiff, Constable Stebbing and Constable Bergamin.

The first thing he heard was “You swore at me first” said by the plaintiff. He was about ten metres away from them and could not hear everything that was said. They appeared to be arguing about something and then he saw the police constable put his hand on the plaintiff’s chest. This appeared to have no effect upon the plaintiff other than that he replied “Don’t touch me”. They continued talking and were quite close and the constable put his hand upon the plaintiff’s chest again. The plaintiff replied “Don’t touch me” and put his hand upon the constable’s chest. The next thing that happened was that the constable swayed to the right and there were three other policemen who came over and placed the plaintiff under arrest. The plaintiff appeared quite upset and said “Why don’t you arrest him” eventually the plaintiff was taken down the stairs.

About an hour later the plaintiff returned and asked people in the foyer if they had seen the incident earlier in the day. The plaintiff spoke to Mr Farrington.

Later Mr Farrington typed up a statement as to what happened and sent it off to the plaintiff. That statement was prepared within a day or two of 25 August 2000. It is Exhibit K.

Mr Farrington said that Mr Bosworth was represented by a solicitor on that day and that he had a conference with him about the evidence he may give in the proceedings at the court house. The witness said that from the time he turned around until he was arrested the plaintiff and Constable Stebbing were face to face but may have got closer as they were talking but he could not be sure. He did not hear someone say “fuck off”.

He said that the plaintiff was facing him and the police officer had his back to him but slightly at an angle.

Mr Farrington said that the plaintiff was reactive to what was being done by Constable Stebbing and appeared to be angry but not excitable. He did not see either the plaintiff or the police officer stumbling backwards. He emphatically denied that as the plaintiff was speaking to the police officer spit was coming from his mouth and said that although he was fifteen metres away he could still testify to this. Carl Leonard Bosworth.

He was present at the Court representing himself in response to an apprehended violence order and denied that he had a solicitor with him. He was with his father and Mr Farrington.

Around 10:30am he saw the plaintiff with a policewoman talking and said (page 251) “They were just talking, they were fine.” He was then about five metres from them and could not hear the voices.

He then saw another policeman come reasonable quickly up to them and the other policeman pushed the plaintiff pretty hard on the chest - hard enough for him to step backwards.

His evidence was that from the back of the court area another bunch of police people came out and took the plaintiff away. The only thing which he could remember the plaintiff saying after his arrest was “I can’t believe this”.

About an hour and a half later he was still at the court when the plaintiff returned and asked people if they had seen what had happened. He gave the plaintiff his contact details.

Under cross examination (page 257) he said:- “What I’m saying is that I saw a gentleman policeman come up in front of Mr Houda and pretty much within ten seconds or twenty seconds, push him forcefully and hard and enough to make Mr Houda go backwards. Q. How far backwards? A. A metre. Enough to be off balance”.

He also said that he could not recollect the conversations at all but he did remember the physical activities involved in the incident. In response to questions he denied that the plaintiff was raising up in an enraged presentation and that his face was flushed with anger and that spittle was coming from his mouth. He also said that he did not see the policeman exhibiting signs of rage. Contrary to the evidence of Ms Francis he said that Constable Stebbing was not wearing a leather jacket. Graeme Ronald Armstrong.

He was present at court “Just moral support for a friend” (page 286).

He heard some noise coming from a couple of metres away on his right. In particular he heard the word “fuck” being used and this caused him to pay more attention. He saw the plaintiff and the police officer having words but could not recall fully what was said.

He heard the police officer say the word “fuck” and then the plaintiff was pushed by him on the chest with the palm of his hand.

Before this push the plaintiff said that the police officer should not be swearing because he is a police officer. After the push police officers came in and arrested the plaintiff.

The plaintiff yelled out “come on” and appeared a bit annoyed.

He said that at that stage the plaintiff asked another officer if she had seen Stebbing push him and swear at him.

About an hour later the plaintiff returned and asked if anybody would like to make a statement on what they had seen. Mr Farrington said that he was prepared to do so and gave the plaintiff his contact details. In addition he gave him information as to what he had seen. He later received a form of statement from the plaintiff which he signed and returned.

Early in 2001 he was contacted by Constable Stebbing and he went to St Marys police station where he met him on 18 January 2001.

He was asked to make a statement about the events and said that the constable was trying to get him to say certain things. He explained:- “Probably because when I said something, he tried to change it. Like, if I said he had pushed Adam he would say to me ‘Did I really push him?’ or ‘Maybe this had happened’ or ‘Maybe that had happened’. Yeah, he was sort of trying to maybe give me a different thought of what might have happened. Q. What did you say to any of these things? A. In the end, to be honest, I was just wanting to get out of there and I sort of allowed him to write what he had written of what I had said.”

He then gave as an example that in the statement (Exhibit M) it said that he was not sure as to who had said “fuck” whereas he was positive that the police officer had said it.

He also said that when he heard the word “fuck” he saw the plaintiff and Constable Stebbing more or less confronting each other and a policewoman closer to him blocking part of his view between the plaintiff and Constable Stebbing. Thus there could have been movement between the constable and the plaintiff which he did not see because the policewoman was blocking that part of his view.

At page 316 he said that when he initially saw the plaintiff and Constable Bergamin talking, Constable Stebbing was not there. He came over from somewhere else in the court, sort of stepped into the middle of it all and that is when the plaintiff and Stebbing had their little altercation. He also agreed that when Stebbing came from his right the female officer stepped out of the way and the two men were face to face and that was when the female officer had her back to him. Richard Abe Hall.

He had arrived at the Burwood Local Court at about 9:30 that morning to defend a restraining order and was with Graeme Armstrong.

While he was sitting he noticed people talking beside him. The first he saw was a large gentleman and then the plaintiff speaking to a female officer. He described the manner in which the plaintiff was speaking to the female officer as “confident in the way he was talking, but it was just a normal tone”. There appeared to be no problem at that stage. Page 422.

There was a male police officer standing with his right shoulder closer to the pylon and the female officer was standing to his left with the plaintiff virtually in front of the male officer about a metre and a half back at an angle facing the female officer as he was speaking to her.

He saw the leg of the male officer come across from the pylon towards the female officer and the plaintiff.

At that stage he could only see the side part of the plaintiff’s face. When he was speaking he could see his jaw movement and head move as if he was talking but he could not directly see his face. He could see the face and the body of the female officer.

He noticed the policeman come from beside the pylon, lean forward and his foot came out. He leaned across to the plaintiff and said “move away”. He then put his hand up and said “move away” and the plaintiff replied “Excuse me, I’m not speaking to you, I’m speaking to the female officer” and turned back to speak to the female officer.

After a break of what the witness described as “probably four or five words” the male officer leaned forward again extending his hand forward with a knuckle and two fingers and hit the plaintiff on the left side of his chest pushing him backwards towards his left.

He described the constable as having his middle ring and little fingers bent in the form of a knuckle but his index finger upwards as he touched the plaintiff.

He said that the plaintiff then stepped back about two paces pushed the constable’s hand away and said “Don’t hit me.” His evidence is that was then that the police officer grabbed the plaintiff’s hand and put it behind his back and told him that he had assaulted police.

The plaintiff started saying “You hit me first”. Four other police officers who had been standing at the top of the stairs came across grabbed the plaintiff and told him that he was being charged. That was when the plaintiff started protesting saying “Could I get numbers and names of witnesses up here”. They took him downstairs and that was the last he saw of him for about twenty to thirty minutes.

When the plaintiff returned to the vestibule area he approached people behind Mr Hall asking them if they had seen what had happened. When the plaintiff walked past him, Mr Hall told the plaintiff “If you need a witness let me know. I saw the whole incident.”

Later he and the plaintiff went into a room where either the plaintiff or Mr Hall wrote out a statement which Mr Hall signed. A few weeks later Mr Hall received a copy of the statement that had been written at the Court together with a letter saying if he wanted to change or amend anything he could do so and to sign and return it. Mr. Hall signed and returned the statement which is Exhibit U.

Some time later he was contacted by Constable Stebbing to ask him to write out a statement. He saw Constable Stebbing at St Marys police station. In his evidence (page 427) he said:- “I wrote a statement on my own free will but I had to – I wasn’t intimidated by the police officer and I didn’t feel threatened, but I was more nervous to write a statement about a police officer to that police officer, to say that he hit somebody, so I toned it down, while I gave the statement to him direct.”

He said that the only time he heard words from the plaintiff was when he pushed the officer’s arm away and said “don’t hit me”. After the policeman grabbed hold of him the plaintiff did shout. (Page 434).

The statement of Mr Hall given to the police is Exhibit V. WITNESSES FOR THE DEFENDANT. Grazziella (Grace) Melissa Bergamin.

She was a uniformed police constable attending court to give evidence in a case. She saw Mr Joseph Ayoub who was well known to her and who was wanted by her in relation to a charge of breach of an Apprehended Violence Order.

She also saw the plaintiff.

She was unable to recall accurately the events of 25 August 2000 without the assistance of her notebook and statement. (Page 485).

With that assistance she gave evidence of a conversation with Mr Ayoub in the presence of the plaintiff as follows: “I said ‘Joseph, after you have finished at court with your matter you will be under arrest for breach of the AVO for the matter which occurred at your house. You know you saw me there.’ Joseph said ‘What are you talking about?’ I said ‘Joseph I saw you there at Cutbush Avenue’. Joseph said ‘Can I show you papers. The AVO was retracted. Look I am upset and not well.’ I said ‘No sir. When you have finished at court we will talk about it then, ok?’ Joseph said ‘yeah’.”

Her evidence continued that, a short time later, the plaintiff approached her and said “You shouldn’t talk to Joseph like that”. She replied “I’m sorry” in the sense that she did not quite understand what he was getting at. The plaintiff said “You shouldn’t talk to Joseph. You make him distressed. He’s not normal you know.” Constable Bergamin said “Joseph is normal. I spoke to Jospeh nicely, I always do.” The plaintiff replied “I know. He is upset at the moment”.

Constable Bergamin said “Are you his solicitor?” He replied “Not for this matter, for another matter.”

I would interpolate here that the words alleged to have been used by the plaintiff appear conciliatory. When Constable Bergamin said that she had spoken to Joseph nicely and always did, he did not contradict her. Instead he agreed saying “I know. He is upset at the moment.” Constable Bergamin, however, said that the plaintiff was getting a bit aggressive. It was his demeanour and the puffing of the chest and the way he was speaking to her as well as the tone of his voice that made her conclude that the plaintiff was getting aggressive. The tone of his voice was harsh, quite blunt, a little bit loud. He was then just a normal talking distance in front of her. (Pages 487-488).

Constable Bergamin said that the plaintiff got closer towards her. She said “Joseph was extremely aggressive to me the last time I spoke to him. I was being nice. He needs to be arrested after court for breach of AVO. I will speak to him about it”. She said the plaintiff replied “Leave him alone. Why do you have to arrest him anyway?”

Constable Bergamin said that at that stage the plaintiff seemed angry, his face was starting to get a little bit flushed and he was quite close to her - about twenty to thirty centimetres away. She felt uncomfortable.

She then turned round to Mr Ayoub and said “Joseph why don’t you come over here and show me the papers”. The two of them then left the plaintiff and walked over to and entered an interview room near court where they spoke about the AVO matter.

Before she left that area with Mr Ayoub she said that Constable Stebbing came into the conversation and that she left shortly afterwards. She said that when Constable Stebbing intervened he said “Excuse me, sir, would you please settle down and lower your voice”. The plaintiff replied “Am I talking to you?” Constable Stebbing said “No, but I am talking to you. This is a police officer. You should treat her with respect. Please settle down.” The plaintiff said “I am treating her with respect.” She did not see from where Constable Stebbing had come. She could not recall whether he appeared from her left or right.

Her evidence was that whilst she was inside the interview room with Mr Ayoub she heard the plaintiff’s voice talking loudly. She walked out of the room and over to where the two were speaking to each other. She said that the first thing that she had noticed was that the plaintiff’s face had gone all red and his voice was a lot louder than when she had left him. They were very close to each other and the plaintiff was quite upright, his chest was puffed out and there was spittle coming out of his mouth when he spoke. They were then between ten to fifteen centimetres and twenty-five centimetres apart from each other.

They were about the same height but the plaintiff was bigger than the constable. After referring to her statement she was able to continue her evidence from it.

Her evidence was that the plaintiff said “You move, you stepped up to me. This is how you talk to me” Constable Stebbing moved back a short distance and there were people behind him and to the right of him so that he could not get back any further. The plaintiff then said “Mate you’re an idiot, you think that you can do what you want just because you have that uniform”. Bits of spittle were coming out of his mouth.

Constable Stebbing said “I don’t give a stuff just take a step back”. The plaintiff did not respond or move.

Constable Stebbing said “Sir I’m asking you as a police officer to step away from me”. The plaintiff replied “I don’t care. You came up to me. I don’t care at all”. In response Constable Stebbing said “Sir, look at the way in which you are acting. I will ask you again to step away from me.”

Constable Bergamin said that at this point the plaintiff was aggressive and yelling. There was more spittle, his face had gone all red, his eyes were widening and he was shaping up. She said that it was as if someone was getting ready to fight. He had his shoulders back and his chest and a solid stance.

She saw Constable Stebbing put his left hand up towards the plaintiff’s chest and the plaintiff pushed it away. The plaintiff then put both of his hands up with an open palm facing outwards. Constable Stebbing put one of his hands up. The plaintiff pushed Constable Stebbing’s hand away and then the plaintiff with both hands pushed Constable Stebbing in the chest and he stumbled back a bit. She explained that she did not mean stumble back a couple of steps but just an imbalance and a step back. She said that Constable Stebbing then told the plaintiff that he was under arrest for assault police.

After referring to her statement she was able to say that between Constable Stebbing raising his left hand and putting it on Mr Houda’s chest and Mr Houda raising both hands, Constable Stebbing said “Please step back or I will push you back. You are standing in my personal space”.

Her impression was that Constable Stebbing had hold of the plaintiff’s arm and the plaintiff was wriggling trying to get out of that hold when Constable Van Akker and Sergeant Bennett came over to assist in the arrest. The plaintiff was calling out “This is shit this is shit”. The plaintiff was then taken away.

She remained at the court for a short period of time and then went to Burwood Police Station and then came back to the court. She could not recall why she went to the police station.

Constable Bergamin gave evidence that she wrote out her typed statement at Flemington Police Station and that at that stage she had Constable Stebbing’s statement with her. When asked why she had it she said “As an aid memoir, to refresh my memory from the incident that had occurred.” (Page 505).

Constable Bergamin denied that she ever was threatened physically or otherwise by the plaintiff but she just felt uncomfortable. She agreed at page 519 that her notebook entry covered only the conversation that she had with Mr Ayoub and the plaintiff and stops at that point and does not cover the events between the plaintiff and Constable Stebbing leading up to the assault. This was despite the fact that the notebook entry was made after the arrest of the plaintiff in respect of a charge of assaulting Constable Stebbing. It does contain the words “re assault at Burwood Local Court, Constables Stebbing, McCabe, Sergeant Bennett, Constable Van Akker, Constable Campbell present”. But it makes no mention of the circumstances of the assault.

The recording of the circumstances of the assault appear in her statement which was prepared when she had Constable Stebbing’s statement and which she had read when she prepared her statement.

Constable Bergamin agreed (page 526) that Constable Stebbing would have been to her left and came across into the conversation between her and the plaintiff.

At page 546 she was asked whether there was not a bit of an inconsistency between the actual words used by the plaintiff and her description of the plaintiff’s aggression. Her reply was “I may, people can say even things that don’t sound aggressive in an aggressive manner.”

Her evidence (page 571) was that when the plaintiff pushed Constable Stebbing the latter stepped back something like half a metre and there was then room behind him for him to take that step.

She denied hearing the plaintiff say “He hit me” or “He hit me first” or “He swore at me”. She was then only two to four metres from him. Other witnesses heard the plaintiff use words to this effect.

Her response to questions concerning her use of Constable Stebbing’s statement to prepare her own statement (page 541) is enlightening on the issue of her reliability as a witness:- Q. You understand that it is dangerous to get other people's statements for that process, because they are not your notes of what took place? A. No, I think that's incorrect. I'm still - in my statement it is still what I saw and what I heard. If there was something in Constable Stebbing's statement that I didn't think was right, there is no way it would be in my statement, it's not what I saw or heard or thought was correct. That's the only thing that is in my statement, what's correct. Q. You don't know that, because your notebook doesn't make any reference or notes in respect of the matter. You have told us that you need to refresh your memory. The only source you have gone to is Mr Stebbing, is that correct? A. No, that's not correct. Q. What other source did you go to? A. My notebook and Constable Stebbing's statement. Q. Your notebook, you have told us, doesn't tell us anything about the assault? A. It tells me about the conversation that I had with Mr Houda and Mr Ayoub. Q. You have confirmed that you understood that when Mr Houda was arrested, that it was because of an alleged assault on Constable Stebbing? A. Yes, that's correct. Q. You have got nothing in there about that, do you? A. No. Q. At all? A. Just the assault at Burwood Local Court. Q. Just the title? A. Yes, that's correct. Q. The only other source of information that you accessed by way of documents to refresh your memory was the statement of Constable Stebbing? A. Yes, that's correct. Q. Constable Stebbing is the victim? A. Yes, he is. Lance Stebbing.

He first noticed the plaintiff and Mr Ayoub together near the entrance to court number 5. He saw Constable Bergamin appear to be having a conversation with Mr Ayoub. She then came over to him. They were joined by the plaintiff who started speaking to her. At that stage she was standing next to Constable Stebbing.

He then gave evidence of conversation between the plaintiff and Constable Bergamin in identical terms to that given earlier by Constable Bergamin.

He described the plaintiff as very angry when he started talking to Constable Bergamin. The first action of the plaintiff which he said was aggressive was making a form of winding motion with his hand which was moving back and forth while he was talking. His voice was raised although he was not shouting at that stage. His voice was short and sharp. He looked angry in his face but as the conversation went on his face started to get red but that was not until a bit later. He then said to the plaintiff “Can you please settle down and lower your voice” to which the plaintiff replied “Am I talking to you”.

Constable Stebbing said “No, but I’m talking to you. This is a police officer you’re talking to. Please treat her with some respect”. The plaintiff answered “I’m treating her with respect”.

At that stage Constable Bergamin walked away.

After referring to his notebook to refresh his memory, Constable Stebbing said that after the plaintiff responded that he did treat the constable with respect Stebbing said “I realise that sir but you’re being very loud and acting aggressive”.

At page 580 he gave the following evidence:- BODOR: Q. What was the next thing that you recall being said and identify the speaker? A. I said to him - I said to Mr Houda, "I understand that, sir, but you're being very loud and all I'm asking you is to settle down a little." After that, Mr Houda stepped into my personal space. HIS HONOUR: Q. Stepped into what? A. My personal space. Q. What do you mean by "my" - and I emphasise the word "my" - "personal space"? A. I regard a distance between about my fingertips to my shoulder as my personal space. Q. And that's space that you own, do you? A. Not space that I own. Q. But you say "my personal space". What do you mean when you say "my"? A. It's the space around me that I feel comfortable letting people that I know into. Q. So if someone approaches you in that space, you regard that as your personal right to occupy and to eject anybody from, do you? A. No, but if someone's in that space and I don't know them, or they're being hostile, I would regard that as - that makes me feel uncomfortable, I don't want them in there. Q. Why not just say so? Why refer to it as "my personal space"? A. It's just a figure of speech, I suppose. Q. But don't you think it is a very insulting figure of speech to regard a piece of common space available to all members - all people nearby as your own personal space? A. I've never really given it any thought, to be honest.

He said that the plaintiff came to about thirty or forty centimetres from him. He was aware that there was a pole somewhere behind him which he could not see and there were also chairs in the vicinity behind him.

Constable Stebbing said that he then raised his left hand and said “Can you please step away from me” because he did not want him to come any closer. He was then concerned that because of the plaintiff’s hostility he was going to assault him. The plaintiff replied “You stepped up to me. You step back”. Constable Stebbing responded “You’re acting like a goose. Just take a step back, take a step away from me”. The plaintiff replied “You stepped up to me. You move. This is how you talk to me.”

Constable Stebbing said that he took a small step back but the plaintiff was leaning forward from the waist towards him and had his chest puffed out. The plaintiff was shouting and Constable Stebbing said that his voice was getting louder because the plaintiff was not listening and he was trying to get through to him that he wanted him to step back. By this stage the plaintiff’s face was really red. He had a scowl on his face and was really angry.

Again Constable Stebbing asked the plaintiff to step back but the plaintiff said “Mate, you’re an idiot. You think you can do whatever you like just because you’re in that uniform”. At this stage the plaintiff was so angry that spit was building up on the sides of his mouth and it was starting to project and was hitting him on the face and shirt.

Constable Stebbing had his hand up in front of him as a defensive tactic because he feared that the plaintiff might move and take a swing at him. Constable Stebbing said “I don’t give a stuff just take a step back”. The plaintiff did not do so.

Constable Stebbing said “I am asking you as a police officer to take a step away from me” to which the plaintiff said “I don’t care, I don’t care at all”. Again Constable Stebbing asked him to take a step away to which he says the plaintiff replied “Fuck off you approached me.”

By this time the plaintiff was shouting and Constable Stebbing was shouting back at him. The constable then put his hand on the plaintiff’s chest but the plaintiff slapped his hand away.

Constable Stebbing said “You’re standing in my personal space. Step back or I’m going to push you back”. At that time he lifted his right hand up and the plaintiff picked both of his hands up and he slapped the constable’s hand away and pushed him in the chest. Constable Stebbing moved back but because he had already taken a step back he took all the weight on his right leg so that his body moved back but he did not step back.

Thereupon he told the plaintiff that he was under arrest for assaulting a police officer. Sergeant Bennett and Constable Van Akker then came across and told him that he was under arrest.

The plaintiff said “He pushed me first, he pushed me twice, this is bullshit”.

The plaintiff was waving his arms around and eventually they pushed him up against a wall and took hold of him and took him away.

As he was being restrained the plaintiff was calling out “This is shit. This is shit he assaulted me he pushed me twice. He pushed me first”.

Constable Stebbing said that he arrested the plaintiff because he had committed the offence of assaulting a police officer and that assault was comprised when he pushed him in the chest. He felt that the plaintiff then had to be removed from the situation because of his hostility. He could not leave him in the courthouse yelling and screaming.

He said that he had no opportunity to move away from the plaintiff before he was assaulted. He did not want to move backwards and his only path was forwards and that was where the plaintiff was. He did not want to move backwards because he did not know what was behind him. There were chairs there and he thought that he might fall over. He did not know what the plaintiff was going to do. He thought he was going to go out of control. He was out of control. He did not want to look behind him to see where he was going because he saw the plaintiff as a threat. He was the aggressive one and he (Stebbing) did not want to look away from him.

He agreed that on the 25th August 2000 he faxed a copy of his statement to Campsie to Constable Van Akker. He did this because he assumed the plaintiff was going to plead “not guilty” and he wanted them to do their statements.

He also agreed that he gave a copy of his statement to Constable Bergamin and to Constable McCabe before they had compiled their own statements.

After the plaintiff was arrested and whilst he was still at Burwood Police Station Constable Campbell returned to the court and obtained the names, addresses and phone numbers of a number of people who had seen the incident. He wrote these in his notebook and gave a copy of the relevant pages to Constable Stebbing so that the latter could chase up these witnesses.

Details of the conversation between Constable Bergamin and the plaintiff to which Constable Stebbing said he was a party does not appear in his notebook. It does appear in Constable Bergamin’s notebook. He agreed that the dialogue of that conversation he put in his statement was markedly similar to that provided in Constable Bergamin’s notebook and when asked whether he agreed that he had a copy of Constable Bergamin’s notebook when he made his statement he said he may have but he could not remember.

The interesting thing is that the notations in Constable Bergamin’s notebook go up to one point and those in Constable Stebbing’s notebook continue from that point. The statements made from both of them cover both aspects in substantially identical terms. Brett Van Akker.

He was a uniformed police officer standing in the lobby of the courthouse at the time of the incident. He was standing outside court 4 with Sergeant Bennett and Constable Campbell.

He saw Constables Stebbing and Bergamin speaking with the plaintiff and as the conversation continued he noticed that the voices were getting louder.

Constable Stebbing was facing towards the court door and standing on the tiled area with his back near a pillar. Constable Bergamin was to the side of Constable Stebbing. The plaintiff was standing in front of them facing towards the pillar. He was about a metre from them.

As mentioned earlier, he heard the three speaking together and some raised voices but the first he heard was Constable Stebbing say “Settle down and lower your voice” to the plaintiff. The plaintiff replied “What do you mean? I am treating her with respect”. Constable Stebbing replied “I know that, but you’re being a little aggressive. Can you lower your voice.”

At this stage he was five to seven metres from them.

He noticed that as the plaintiff stepped forwards towards Constable Stebbing he appeared to be angry, his face was flushed red and he appeared to be flared up, his chest was puffed out and he heard Constable Stebbing say “Step back away and settle down”.

The plaintiff then said “You think you can do what you want because you’re in that uniform”. Constable Stebbing said “Look settle down and step away from me”.

It was at that time that he believed that the conversation was quite heated and Constable Stebbing again said “Look, step away, you’re too close, step away from me.”

The plaintiff responded “You came up to me. I don’t care, You came up to me.” Stebbing said “Look at the way you’re acting. I’m asking you again to settle down and step away from me.” The plaintiff said “Fuck off. You approached me.”

At that time he saw Constable Stebbing raise his hands towards the plaintiff’s chest, place them on his chest and he saw the plaintiff slap the hands away and push Constable Stebbing back on the chest. Stebbing stepped backwards or stumbled backwards towards the pillar and thereupon he and Sergeant Bennett walked over to see if they could render some assistance. They walked over to them briskly and he heard Constable Stebbing say “You’re under arrest for assaulting a police officer”. The plaintiff responded “You can’t arrest me I’m a solicitor.”

Constable Van Akker then said “You’re under arrest. I’m effecting that arrest. Do you understand?” The plaintiff replied “What for he pushed me first and he swore at me first. He’s an idiot” or words along those lines.

The plaintiff pulled his arm away and said “I’m not going anywhere”. Constable Van Akker then took hold of him and said “You’re under arrest please don’t resist you can speak to the police involved at Burwood Police Station just calm down”. He was then taken away to the police station.

Constable Van Akker stated that he had the belief that the plaintiff had assaulted the constable and committed the offence. He was then questioned as to what gave him that belief (page 768):- “A. Well I saw him strike and push the constable backwards. Q. But on what you have just told me that was an immediate response to the constable putting his hands up on his chest? A. Yes, that’s right. Q. Well wouldn’t it occur to you that that was an act of reasonable self-defence? A. In terms of moving the hands away? Q. In terms of moving his hands away and then pushing him so as to prevent any further similar action. A. Not in light of what had happened with the constable asking him to move away on a number of occasions and him failing to do so. Q. Tell me, what was he doing that in your opinion justified Constable Stebbing to direct him to move away. A. Well I can only say that he may have been causing fear, could have been. Q. You did not see anything? A. I certainly saw him standing in his face as though some sort of violence was going to commence.”

Constable Van Akker agreed that as the plaintiff was being escorted away he was saying words to the effect “Oh this is shit, he started it, he’s at fault, he swore.”

He could not recall seeing Constable Bergamin depart from the vicinity about the time that the plaintiff said “I am treating her with respect”. His recollection was that she was with them when he first glanced over to the location but could not say whether they were there all the time.

At page 784 he was asked: Q. “Is it not the fact that if he had wished to, according to your observations, Stebbing could have taken steps backward around at least one of the sides of the pillar? A. Yeah it’s possible that he could have done that yes.”

When sections of Stebbing’s statement were put to him in conjunction with corresponding sections of his own statement he agreed that they were substantially the same. He was then asked (page 794):- “Q. Could those words be in your statement on account of being aided by the Stebbing statement? A. It’s possible that I have read his statement and agreed that that was the conversation that took place.”

Constable Van Akker said that he could not recall having seen Constable Stebbing’s notebook. Craig Bennett.

He was a sergeant of police and was present in the vestibule on the morning of 25 August 2000 waiting to give evidence in a case.

His attention was drawn to a conversation which he described as a “loud ruckus.” He heard words to the effect of “move back, settle down”.

He also heard the man in the suit (the plaintiff) say words to the effect of “I do respect her.” Stebbing said words to the effect of “lower your voice and settle down”.

Stebbing also said something like “You’re being very loud and aggressive. Lower your voice”.

At that stage the plaintiff and Constable Stebbing were within touching distance of each other.

He was focusing on those two people and was not aware of the movement of any other people.

He said that the plaintiff’s face was slightly red or he appeared to be flushed. He was taller than the constable both in stature and height. He was “animated”. He explained this by saying he noticed that the plaintiff pointed his finger towards the constable and he was lifting his arms around in a forceful manner. His arm was outstretched while the constable was moving back from him. He remembered the plaintiff saying words to the effect of “I am respecting her” and Stebbing saying words to the effect of “Move back. I am asking you to move back”. The plaintiff said “What for? You’re the idiot” or words like that. He also heard the plaintiff say “You think you can do whatever you like because you are wearing that uniform” or words to that effect.

After referring to his statement to refresh his memory he continued with his description of the conversation by saying that Stebbing said “Sir I am asking you as a police officer to stay away from me” to which the plaintiff replied “I don’t care you came up to me.” Stebbing then said “Sir look at the way you are acting I will ask you again to step away from me”. The plaintiff said “Fuck off, you approached me”.

During this exchange of words the volume of the conversation became louder.

He then said that Stebbing was moving back and put out one or both of his hands and asked the plaintiff to move back. He said that he remembered the plaintiff moving forwards toward Stebbing. Stebbing was moving backwards. He stumbled backwards and then he (Bennett) came in with other police. In that period Stebbing said you’re under arrest for assaulting a police officer.

The plaintiff said “You can’t arrest me. I’m a solicitor.”

Both of them were grabbing at each other Stebbing was moving back. Constables Van Akker and Campbell and he then moved in to effect the arrest. This was because Stebbing was stumbling backwards, had made an arrest and needed assistance.

He agreed that Mr Houda said words to the effect “He pushed me first” and “What for? He’s the idiot he started it. He swore at me first”.

Van Akker took hold of the plaintiff and told him he was under arrest again to which the plaintiff said “I’m not going anywhere”. Sergeant Bennett remembered the plaintiff bending over and he picked him up whilst he, the plaintiff, was shaking around. Sergeant Bennet said that he did not see Constable Stebbing advancing on the plaintiff and pushing him backwards.

At page 814 he was questioned as to the reasons for the joining in the arrest of the plaintiff as follows Q. Did you see Stebbing’s hand touch the chest of Houda? A. I can’t recall whether it touched Mr Houda or not. Q. Did you consider that the assault for which Stebbing informed Houda he was arresting him was the pushing of Stebbing’s hand away by Houda? A. No I considered the arrest by Stebbing when Stebbing put his hand his outstretched hand to warn Mr Houda to move back. Q. Did you consider that Stebbing was arresting Houda because he didn’t move back? A. Because he told him to move back from his personal space and Mr Houda moved Stebbing’s hand away and continued to move forward on to Stebbing. Q. Those were the facts on which you understood Stebbing was arresting Houda is that right? A. Yes.

At page 815 he was asked Q. Do you really say that you have a recollection of the constable losing balance and stumbling backwards being caused by Houda pushing the constable’s hand away? A. I remember Stebbing moving backwards after his hand was pushed away.

At page 816 he was asked Q. Did you see in fact Stebbing push out with his hand and push the chest of Houda? A. No. Q. Did you see Stebbing push out with two hands and push the chest of Houda? A. No.

Sergeant Bennett agreed that in his notebook shortly after the arrest he recorded the words “The constable and the solicitor began to push at each other.” That was not included in his statement. Sean Paul Campbell.

He was present at the court with Sergeant Bennett and Constable Van Akker for the purpose of giving evidence in another case.

He saw the plaintiff, Constable Stebbing and Constable Bergamin standing near each other. The men were within a metre of each other and he could hear some conversation from them.

He heard Constable Stebbing say to the plaintiff words to the effect of “Settle down” to which the plaintiff replied “What do you mean I am treating her with respect” and Constable Stebbing said words to the effect of “Sir settle down I understand that but you are being very loud and aggressive”.

The plaintiff then leaned forward and said to Constable Stebbing “You’re an idiot you think you can do whatever you want with that uniform on”.

Constable Stebbing replied with words to the effect “Sir I’m asking you as a police officer to step away from me”. The plaintiff replied with words to the effect of “I don’t care you came up to me”.

Stebbing then said words to the effect of “Sir look at the way you are acting - settle down.”

Constable Stebbing raised his hands in an open palm manner and moved them toward the plaintiff. He thought that his hands did come into contact with the plaintiff.

Thereupon the plaintiff knocked the constable’s hands down with his right hand. He said words to the effect of “Fuck off you approached me.”

Stebbing then said words to the effect of “Sir you’re in my personal space. Move back or I’ll push you back”. Constable Stebbing then raised his hands in an open palm manner towards the plaintiff and may or may have not have come into contact with the plaintiff’s chest.

Again the plaintiff knocked the constable’s hands down. Immediately afterwards the plaintiff pushed Constable Stebbing in the upper chest with both hands. Constable Stebbing stumbled backwards several steps before regaining his balance.

Constable Stebbing then said to the plaintiff “You’re under arrest for assaulting a police officer”. The plaintiff replied with words to the effect of “You can’t arrest me I’m a solicitor”.

At that stage Constable Van Akker, Sergeant Bennet and Constable Campbell moved towards the incident. Constable Van Akker took hold of the plaintiff’s left arm saying words to the effect of “You’re under arrest. I’m effecting that arrest”. The plaintiff responded with words to the effect of “This is shit. He’s an idiot he started it, he came up to me.”

Stebbing, Sergeant Bennett, Constable Van Akker and Constable Campbell then walked with Stebbing and the plaintiff to the police station.

After a few minutes Constable Campbell left the station and returned to Burwood Local Court in order to obtain details of witnesses to the earlier events.

He obtained some information which he noted in his notebook and then returned to Burwood Police Station. He gave a copy of those details to Constable Stebbing. Back at Burwood Police Station he started to write in his note book his narrative of what had occurred earlier. He did not complete the narrative then because he was due back at court to give evidence on another matter. He continued writing the narrative at Burwood court house but did not finish it there because he was called to give evidence.

He finished it later in the day at Campsie Police Station which was then his normal working headquarters.

His statement which is dated 30 August 2000 is in fact the second statement he prepared and it was completed well after that date. He destroyed the first statement.

His evidence was that the only differences between the two statements were the correction of some spelling errors. He also agreed that in his notebook he made an entry following the conversation “Step away from me” that “The constable raised his hands in an open palm manner and placed them on Houda’s chest”. He agreed that the words “and placed them on Houda’s chest” which appear in the notebook do not appear in the statement. He denied that that was a deliberate omission from the statement. Jo Anne Maree McCabe .

Her evidence was that originally she was standing by herself and saw Constable Stebbing a short distance away so she went over and started talking to him.

She said that she did not have much of an independent recollection of conversations but did of actions. She said that she started to prepare her statement dated 27 August 2000 on that date but could not recall when she completed it. The entries in her notebook were completed somewhere between 25 and 27 August.

Her description of the actions of Constable Stebbing were (page 910):- “Lance and I were standing together talking, then his attention was drawn to Mr Houda, Grace [Constable Bergamin] and Mr Ayoub and then he stepped from – we are standing together talking. He stepped towards Mr Houda and then there was a conversation between the two of them. It started as a general conversation whereby Lance was asking him to quieten down. Then as Lance has spoken to him Mr Houda has then aggressively responded. I can’t recall the exact words. Then Lance has responded to what he was saying trying to calm him down.”

Her description continues, page 911:- “Ok. Lance has stepped towards Mr Houda. There’s conversation between the two of them. Lance has put his hand up, because as Lance and Mr Houda are speaking Mr Houda is moving towards us and I was by his side like directly beside his side.” and “We have stepped back as Mr Houda is coming towards us. Then Lance, because he had nowhere else to go because there was, I believe, a chair or something behind me, an object stopping us from going backwards, Lance has put his hand up to indicate to him to stop and move back. Mr Houda has pushed his hand away. Lance has put his hand up again saying “stop move back”. Mr Houda has pushed his hand away again and then Mr Houda has pushed Lance with both hands towards the chest and then he was arrested and taken away.”

She said that when he was pushed by the plaintiff, Constable Stebbing moved back a distance she indicated as about thirty centimetres. She believed it was only his upper torso and shoulders that moved backwards in response to the pushing.

After this the plaintiff was arrested and other officers came in and assisted with the arrest and he was then taken away.

Her evidence was that at that time she was scared. At one stage the plaintiff looked at her and his face was red, his eyes were red and enraged with anger. She said that she was scared because she had only ever seen two people as angry as he was, namely the plaintiff and one other person. She described Constable Stebbing as trying to control the situation and getting frustrated with the plaintiff’s responses.

Her evidence was that for the purpose of preparing her statement she had her notebook and Constable Stebbing’s statement. She used Constable Stebbing’s statement for the purpose of refreshing her memory as to the events of that day.

She also agreed that the entries in her notebook were compiled with the benefit of Stebbing’s statement.

During questioning at page 921 she denied that the first physical contact between the two men was by Constable Stebbing upon the plaintiff. However she agreed that in paragraph 7 of her statement she said that Constable Stebbing lifted his left hand and placed it on the plaintiff’s chest.

She said that when Constable Stebbing moved from the position next to her towards the plaintiff he took only one step. WHAT DID HAPPEN?

The starting point of the events according to Constable Stebbing is that he was standing next to Constable Bergamin when the plaintiff came over to both of them and spoke to Constable Bergamin in what he described as an aggressive manner with a raised voice which was short and sharp to the extent that he had to intervene and ask the plaintiff to settle down. He repeatedly denied he had approached the plaintiff but insisted that it was the plaintiff who approached Constable Bergamin and him.

At page 595 he was asked: Q. He was hostile towards you right from the first time you went up to him. A. I didn’t approach him he approached us.

The evidence of the plaintiff was that while he was speaking to Constable Bergamin Constable Stebbing approached him from his right and used the words “Now you, you treat this officer with respect.”

The evidence of Mr Bosworth at page 251 is that he saw the plaintiff talking to the policewoman and described them as “They were just talking, they were fine”.

He was then about five metres away from then. He then saw Constable Stebbing come reasonably quickly up to them and Stebbing pushed the plaintiff pretty hard on the chest enough for him to step backwards.

Mr Armstrong at page 316 said that he saw the plaintiff and Constable Bergamin talking. At that stage Stebbing was not there but he came over from somewhere else and “sort of stepped into the middle of it” and that is when the plaintiff and Stebbing had their altercation.

The evidence of Mr Hall was that he saw the plaintiff speaking to a female officer and described his manner of speech (page 422) as “confident in the way he was talking, but it was just a normal tone”. There appeared to be no problem at that stage. He noticed the policeman come from beside the pylon, lean forward and his foot came out. He leant across to the plaintiff and said “Move away”. He then put his hand up and said “Move away” and the plaintiff replied “Excuse me I’m not speaking to you. I’m speaking to the female officer” and turned back to speak to her.

The evidence of Constable Bergamin page 526 is:- Q. Does that cause your memory to be refreshed in that Mr Stebbing has come from your left? A. If he would have. It would have had to have been on my left. Q. And he has come across into the conversation between you and Mr Houda. A. Yes. Q. Has he stepped in between you and Mr Houda? A. No because I’d finished with Mr Houda by then I had already turned around and spoken to Joseph.

Constable McCabe at page 910 said:- “Lance and I were standing together talking, then his attention was drawn to Mr Houda, Grace, Constable Bergamin, and Mr Ayoub, and then he stepped from – we are standing together talking. He stepped towards Mr Houda and then there was a conversation between the two of them”.

This aspect of Constable Stebbing’s evidence is contradicted by lay witnesses who have no connection with the plaintiff as well as by police witnesses.

The description by the constable of the plaintiff, a solicitor, intervening into a conversation between uniformed male and female police officers and then yelling at the female officer in an aggressive manner is not only contradicted by the evidence of the lay witnesses but it is also against the probabilities.

The evidence of Constable Stebbing continues painting a picture of an aggressive Mr Houda becoming closer to him in an aggressive manner, talking loudly at him, showing visible signs of anger and, in effect, cornering him in a position from which he could not escape because of a pole and adjacent seats. The plaintiff says that it was Constable Stebbing who approached him and told him to “fuck off” and then kept walking towards him and then pushed him with a right hand on the chest. Stebbing walked closer towards him repeating words to the effect of “Get out of my personal space” and pushed him a second time with his right hand. The plaintiff put out his right hand with an open palm in a defensive manner and thereupon Stebbing said to him that he was under arrest for assaulting a police officer. During this time, according to Stebbing, the plaintiff’s face was getting redder, he was getting angry and he was spitting with anger.

The evidence of Ms Francis is that her attention was drawn by the sound of a man’s voice saying “You’re an idiot you’re a deadset dickhead”. She saw Constable Stebbing approach the plaintiff from sort of behind him and reaching within close speaking distance of him. Constable Stebbing came up behind the plaintiff who turned around to speak to him. She heard more of the same type of conversation from the constable and then she saw him push the plaintiff in the upper chest area. The plaintiff staggered back a few steps and thereupon the plaintiff was grabbed by police officers and dragged away.

Her diary note made on 27 August 2000 (Exhibit H) is set out earlier in this judgment and in it she refers to Stebbing as berating the plaintiff and “The cop was behaving in an extremely aggressive manner. He was like a dog barking at a stranger on the property”. This diary note was made independently of the plaintiff.

Her evidence was that the plaintiff raised his voice only when he was arrested and that up to that stage he appeared to be trying to placate Constable Stebbing who was very upset. She denied that the plaintiff appeared to be red in the face or that he had spit coming out of his mouth whilst he was talking to the constable.

Mr Farrington’s attention was attracted by the words “You swore at me first” said by the plaintiff. He looked around and saw the constable put his hands on the plaintiff’s chest. The plaintiff replied “Don’t touch me”. The constable put his hand on the plaintiff’s chest again. The plaintiff replied “Don’t touch me” and put his hand upon the constable’s chest and the next thing that happened was that the constable swayed to the right and three other policemen came over and placed the plaintiff under arrest.

This swaying to the right by Constable Stebbing is consistent with the cocking of the head described by the plaintiff of the movement of Constable Stebbing immediately before the arrest. Mr. Farrington emphatically denied that spit was coming from the plaintiff’s mouth.

Mr Bosworth testified that he saw Stebbing come quickly up to the plaintiff and push him pretty hard on the chest, hard enough from him to step backwards. He denied that the plaintiff was raising up in enraged presentation or that his face was flushed with anger and spittle was coming from his mouth.

Mr Armstrong said he heard noise coming from a couple of metres away on his right and in particular the word “fuck” being used by the police officer. The plaintiff was pushed by the police officer with an open palm on the chest. Before this the plaintiff had said that the officer should not be swearing because he is a police officer. After that other police came and arrested the plaintiff.

Mr Hall gave evidence that he saw Stebbing come from beside the pylon lean forward, put his hand up and say to the plaintiff “Move away”. The plaintiff replied “Excuse me I’m not speaking to you I’m speaking to the female officer” and turned back to speak to her. After four of five words Stebbing leaned forward again extending his hand forward with a knuckle and two fingers and hit the plaintiff on the left side of the chest pushing him backwards towards his left. The plaintiff pushed the constable’s hand away and said “Don’t hit me”. The police officer grabbed the plaintiff’s hand and put it behind his back and told him he had assaulted police.

All of the witnesses agree that the first physical contact between Stebbing and the plaintiff was when Stebbing placed his hand on the plaintiff’s chest. Furthermore all witnesses agree that immediately after his arrest the plaintiff was protesting his innocence and saying words to the effect of “he hit me first” or “he hit me twice” and “this is all shit”.

When assessing the reliability of the plaintiff’s witnesses it must be acknowledged that there are discrepancies between various aspects of their evidence. For example Ms Francis described Constable Stebbing as in effect pursuing the plaintiff over a distance which she described as some twenty five to thirty paces. Such a distance of travel is contrary to all of the evidence. She also said that Constable Stebbing was wearing a leather jacket. He said he was wearing a blue shirt.

In fairness to all witnesses it must be remembered that they are giving evidence five years after the event. The event itself occupied no more than perhaps one or two minutes at the outside. One can therefore expect discrepancies. However on the central aspect of what occurred between the plaintiff and Stebbing her evidence was unshaken.

Mr Farrington is in conflict with Mr Bosworth when he said that Mr Bosworth was represented by a solicitor with whom he had a conference at the courthouse. Bosworth said he was unrepresented.

There are discrepancies of a minor nature between what the plaintiff’s witnesses said in evidence and what they said in earlier written statements.

However they are independent of the plaintiff. They are giving evidence to the best of their recollection and belief and, in substance, they support the evidence of the plaintiff.

The defendant’s witnesses, especially constables Bergamin, Stebbing and McCabe, described the plaintiff as being red in the face, visibly angry, puffing out his chest, shaping up and spit coming from his mouth before he was arrested.

These are all signs which would have been clearly visible to most of the plaintiff’s witnesses had they, in fact, existed. Yet the plaintiff’s witnesses deny seeing such signs.

The plaintiff’s witnesses, on the evidence, are all independent of the plaintiff. Each gave his/her evidence without having read the statement of other witnesses – unlike the police officers. None of them was shown to have what might be called a bias against police. I found their evidence, particularly that of Ms Francis, Mr Farringtom and Mr Hall to be quite impressive.

The plaintiff gave evidence, page 34, that at Burwood Police Station he was put in an interview room and left there on his own. The door was open. He looked out and saw constables Van Akker, Stebbing, Bergamin and he believed one other officer sitting around a table. They were writing on a piece of paper. It was hard to hear what was being said but he heard words to the effect of “No, what you really should say is this and say he pushed first” words like that. Bergamin looked towards his direction saw that he was writing things down and she shut the door. Then the custody officer walked into the interview room. He said that he would be with him in a minute walked out again and left the door open. He saw Van Akker, Stebbing, Bergamin and one other police officer. He remembered Stebbing talking to Bergamin saying something like “I think you should say that he pushed you first”.

The Custody Record (Exhibit BB) notes the time of arrest at 10:37. He was taken to the interview room at 10:42 and he was released at 11:28 am. The notebooks of Stebbing and Bergamin indicate that they started writing up their notes at 10:45 and 10:50 respectively.

This puts them right in the position where the plaintiff says they were.

Constable Bergamin could not recall why she went to Burwood Police Station. See pages 512 – 514. The police officers agreed that Sergeant Bennett told them words to the effect that the matter was clearly going to be defended and that they should start preparing their notes in their notebooks as soon as possible.

Sergeant Bennett agreed that when giving evidence to the Police Integrity Commission he believed that, at Burwood Police Station, he had asked Stebbing what had happened or what was the catalyst for the situation. He could recall Constables Campbell and Van Akker being in the room adjacent to the interview room but could not recall whether Bergamin or Stebbing were there. He was not saying they were not - he just could not remember. (Page 825). He agreed that in evidence before the Police Integrity Commission he said that the plaintiff was in the interview room making notes.

Constables Stebbing, Bergamin and McCabe were all stationed at Flemington. Sergeant Bennett and Constables Van Akker and Campbell were all stationed at Campsie.

On 25 August 2000 Constable Stebbing sent a fax, Exhibit W, to Constable Van Akker at the Campsie Crime Prevention Team in the following terms:- “Copy of statement re Houda. Please give copy to Sergeant Bennett and Constable Campbell. Can you please fax me your statements when finished. Thanks. Lance”.

At page 795 Constable Van Akker agreed that it was possible that he had Constable Stebbing’s statement when he was preparing his own statement. This was after cross-examination showing striking similarities between portions of the two.

Under cross examination Sergeant Bennet agreed that in his notebook he included the words “The constable and the solicitor began to push at each other”. Those words were not included in his statement made on 29 August 2000. (Page 818).

At page 820 he was asked:- “Q. Where you say you observed two police constables, Stebbing and Bergamin, involved in a vigorous heated conversation with a male person dressed in a suit, did you mean to convey by that that Bergamin was part of the vigorous heated conversation? A. No. Q. There was no such vigorous heated conversation between her and Houda was there? A. I can’t recall whether I heard her in a vigorous conversation before the melee or not.”

Constable Bergamin gave evidence that she made her statement dated 25 August 2000 at Flemington Police Station.

At page 505 she agreed that she typed up her statement when she had Constable Stebbing’s typed statement with her. She said that she had it as an aid memoir to refresh her memory from the incident that had occurred.

At page 506 she said of Constable Stebbing’s statement:- “It just refreshed my memory. It enabled me to – because often, in a short period of time, I can forget something that happened, and it refreshes my memory from what occurred that day. It’s still my memory. It’s still my thought.”

At pages 607 and 608 Constable Stebbing was asked why he had faxed a copy of his statement over to Campsie. He responded “Because I knew that Mr – I assumed Mr Houda was going to plead not guilty, and I wanted them to do their statements.” “Q. What purpose would your statement have in assisting them? A. Well what normally happens with other officers’ statements is you ask them to do it and then you ask them again and again and again, and I found that the easiest way to get them to do it was to put a copy of your statement in the pigeon hole with a request for them to do it, so next time they check the pigeon hole they see your statement and think I have got to do that statement. That was the purpose of faxing it across.”

At page 608 he added the following:- “Yes it also serves the purpose that if two or three weeks down the track at three o’clock in the morning on night shift when they have time to do the statement and they need to refresh their memory as to what happens, they can actually look at my statement if they choose to.”

He denied that it was any part of his purpose to be suggestive of what they should put in their statement.

At pages 622 and 623 he said that Constables Bergamin and McCabe worked with him at that time and that he gave each a copy of his statement before they did their own statements.

He agreed that it was more than probable that he had access to Constable Bergamin’s notebook with its detail of the conversation between her and the plaintiff at the time he prepared his statement. (Page 641).

All of the police officers said that they saw nothing wrong with using the notebook or statement of another police officer in order to assist them in preparing their own statements. They emphasised that it was merely to help them refresh their memory and if something was said with which they did not agree they would not have adopted it as part of their own statement.

The fact, however, is that what each of the officers was doing was not writing down something that was his/her own independent recollection. What they were doing was accepting the recollection and statements of Constable Stebbing as their own recollection. This practice overlooks the fact that in relying upon another officer’s statement as to the details of conversations there is a real danger of it being accepted as correct even though the personal recollection of the writer of the statement may be unclear or slightly different.

Furthermore, the value of evidence as corroboration is seriously diminished when that evidence is all based upon a statement of the witness sought to be corroborated.

In addition to the oral evidence there are two statements of witnesses in evidence.

The first is the statement of Daniel Malloy taken by Constable Stebbing at Auburn Police Station on 18 January 2001 part of Exhibit S.

In his statement he says:- “4. I finished my cigarette and was walking back into the courthouse. As I was walking back in I heard some yelling that was coming from outside court five. I looked towards where the yelling was coming from and noticed that there were a number of police and some other people standing around. I saw that there was only one man yelling. He was wearing a suit and tie, and looked to me to be a lawyer. This man had an expression on his face that looked as if he was “fired up”. By this I mean it looked as if this man was ready to fight with someone. I could not see who the man was yelling at because of the people standing around and a pillar that was in my road. 5. I kept walking and sat on a seat between courts three and four. I sat down and faced in the direction of the yelling. I could still see the male that had been yelling. He still looked very angry. I heard someone say something like, “If you don’t stop it you’re going to be arrested.” Not long after this some police officers took hold of the male that was yelling. As the police officers did this I saw the male lunge. By this I mean that the male looked like he was trying to get at whoever he was yelling at. 6. The male was then taken down the stairs and out of the courthouse. As he was being taken down the stairs the male was swearing saying “I can’t fucking believe this, he pushed me first”. The male still appeared very aggressive and was yelling these things while he was being taken away by the police.”

The second statement is one of Jeff Montgomery, Exhibit T.

As mentioned earlier, after the plaintiff returned from the police station to Burwood Local Court he sought out potential witnesses. The evidence is that he interviewed those witnesses and took notes of what they said. He later had those notes typed out into statement form and posted them off to the persons who gave the statement with a covering letter asking them to correct it if they wished to and then to return it signed.

The statement of Mr Montgomery has at the top the date 25 August 2000 and the time 12:40pm. At the conclusion it states “This statement was taken on 25 August 2000 at Burwood Local Court but signed on 5 September 2000.”

The statement reads:- “I was waiting to give evidence at Burwood Local Court. I was sitting outside the court waiting when I heard someone scream out “Fuck off”. I turned towards the direction where the sound was coming from and I witnessed a man wearing a suit arguing with a police officer. I now know this man’s name to be Adam Houda. I remember thinking of the irony of the situation because here I was about to give evidence in a matter involving an offensive language charge and here is this police officer swearing in front of all those people. The police officer then pushed Adam in the chest region. Constable Van Akker and another policeman then grabbed Adam. Van Akker is a police officer who was involved in the same matter I was attending court for. Adam kept telling Van Akker and partner “What are you doing? He pushed me. He pushed me”. Adam was escorted out of the building with the police firmly holding onto him.”

These two statements are clearly in conflict with each other. However neither of these men was cross-examined. I take these statements into account but, having regard to the fact that the authors could not be cross-examined as to the position they were in at the time or at what stage of the proceedings they became aware of the events, I do not give them as much weight as I give to the oral evidence which was subject to intensive cross-examination.

Constable Campbell was one of the police officers who went to Burwood Police Station with the plaintiff. After a short time at that station he was asked to return to the courthouse to get contact details of witnesses. He obtained those details and wrote them into his notebook. He made a copy of the relevant pages and gave it to Constable Stebbing.

The copy of those pages is in evidence as Exhibit Y. This shows contact details of nine potential witnesses. Of these nine Constable Stebbing said he could make contact with only three. One was Daniel Malloy referred to earlier and the other two were Graeme Armstrong and Richard Hall both of whom gave evidence on behalf of the plaintiff in this case.

Constable Stebbing gave very vague evidence of his attempts to contact the other six and made no notes of those attempts. I do not speculate as to what evidence the other six would have given.

In addition Constable Campbell noted the name of the officer in charge of the Sheriff’s Office at Burwood Courthouse. It is not in dispute that this officer did not witness the incidents the subject of this action and his contribution was to advise that the closed circuit television cameras covering the relevant parts of the court vestibule were not recording at the time. DEFENDANT’S SUBMISSIONS ON THE FACTS.

Attention was drawn to the evidence of the plaintiff where, in his conversation with Constable Bergamin, he referred to the mental condition of Mr Ayoub and mentioned the name of Dr Roberts who had said that Ayoub was dangerous. This was contrasted with the relevant part of the plaintiff’s statement, Exhibit G which records him as saying to Bergamin, “Joseph Ayoub is a person who is mentally ill so if it’s possible please be a little gentle with him”. It was submitted that this difference was significant because the plaintiff said that his statement was one which was prepared for the purpose of this case and also for submission to the Police Integrity Commission. In cross-examination the plaintiff said that the reference to the doctor was implicit in what he had written in Exhibit G.

In my view it was implicit in what was written in Exhibit G. In any event even Constable Bergamin agrees that the plaintiff used words to the effect that Ayoub was not “normal”.

It was further submitted that the plaintiff gave evidence that he saw Constable Stebbing looking at him in an unfriendly manner whilst he was speaking to Constable Bergamin. One must, therefore, ask what was it that was going on which had attracted such a look. It is submitted that this is supportive of the fact that the plaintiff was behaving in an aggressive and loud manner towards Constable Bergamin. Furthermore, it is submitted that the conduct of Stebbing in using words to the effect of “calm down” and “lower your voice” was not only reasonable and proper, but it is also consistent with the evidence of the plaintiff that Stebbing was looking at him in such a manner.

It is further submitted that the plaintiff agrees that Constable Stebbing used words to the effect “Don’t speak to the police officer with disrespect” and that he replied with words to the effect that he was speaking to the officer with respect. The evidence of the police officers is that the plaintiff did thus reply. However their evidence goes further and says that Stebbing’s reply was to the effect of “I know but just lower your voice and calm down”.

So at this stage we have two things which should have prevented any further problems. First they agree that he was treating the officer with respect and, secondly, they agree that it is at this stage that Constable Bergamin moves away and takes Mr Ayoub to the interview room. Even on the police evidence this should have ended the confrontation but it did not end there.

I am comfortably satisfied that the reason for it not ending there appears in the evidence of the plaintiff when he said “I am speaking to the officer with the most ultimate respect so could you please mind your own business”.

It was the words “mind your own business” which appears to have initiated the conduct of Constable Stebbing described by the plaintiff in his evidence from that point onwards.

Having regard to all of the evidence I am more than comfortably satisfied on the probabilities that what occurred thereafter were the events described by the plaintiff in his evidence.

A further criticism of the plaintiff was that in his evidence he said that he was forced by Constable Stebbing up against a wall. The evidence of the witnesses was that he was not up against a wall at any time until, according to the evidence Stebbing, after his arrest and in the course of the arrest.

The photographs in evidence show that the distance between the wall of Court 5, which consist of glass bricks, and the pillars is only something like two and a half or maybe three metres. I accept that it was the plaintiff’s perception at the time that he was against the wall. This perception may not have been accurate but nonetheless in the heat of the moment it is not unreasonable and not indicative of general lack of reliability of his evidence.

It was also submitted on behalf of the defendant that there is room in the Custody Management Records for a complaint to be made by the prisoner to the Custody Manager and there is no record of any complaint by the plaintiff that he heard the police officers speaking about what should be in their statements.

The Custody Management Records is in evidence as Exhibit 9. It refers to a visual assessment to be made by the officer and a questionnaire. None of those contain provision for a complaint to be made as to the conduct of other police officers allegedly fabricating the story against him. In any event if a complaint is to be made to the Custody Manager it would be about his treatment at the police station. The plaintiff had no complaint in respect of his treatment by police at the police station. His complaint was the conduct of other police in relation to the evidence they were going to give against him in the future.

There was strong criticism of the plaintiff because he was unable to produce the notes of his conversations with potential witnesses which he made at Burwood Courthouse after his return from the police station.

As against this it must be borne in mind that the evidence is that each of those notes was put into a typed form of statement, sent to the respective potential witnesses with a covering letter asking them to correct it if necessary and to sign it and return it. Those signed statements which were received are in evidence. Ms Francis did not return a statement. She had her own independent notes made two days later in her diary and that is in evidence as Exhibit H.

It was further submitted on behalf of the defendant that the plaintiff lacked the ability to view matters in an objective manner. At page 164 the plaintiff gave evidence that Constable Stebbing, in the course of his evidence at the Burwood Local Court on 12 February 2001, admitted to collusion “on a lot of fronts”. He was then asked:- Q. Mr Houda, you know that what Stebbing agreed to at the local court was that he had forwarded his statement, don’t you? A. And that is collusion of the highest order, sir yes. Q. Well that’s your interpretation isn’t it? A. Well that’s what he’s - Q. That’s your interpretation A. He passed on his statement to other police officers so they could base their statements on it. Q. That’s your theory isn’t it? A. And to coaching witnesses outside the courtroom. Q. That’s your theory? A. No he admitted that sir. Q. Where did he admit it? A. If you give me the transcript I’ll happily show you where.”

At page 165 he was asked:- Q. Do you say that Stebbing admitted to colluding with police officers to present a false story? A. No I don’t know what his intentions were but he did collude with them.”

When asked what he understood by the word collusion the plaintiff replied, (pages 165 and 166):- “He passed on his statement to every single witness – police witnesses, so that they could base their version of events on his version. So he’s polluted everyone else’s statements and versions, and that’s what I mean by collusion. Also on the day of the hearing he was coaching witnesses outside the courtroom.”

Later at page 167 the plaintiff said:- “Stebbing admitted in very clear and concise terms that he coached witnesses outside the Burwood Court that morning. He agreed to that proposition.”

The evidence before me in this case clearly establishes that Constable Stebbing did pass on his statement to other police witnesses to assist them in making their statements.

I know pass to the transcript of evidence at the hearing of the Burwood Local Court on 12 February 2001, Exhibit J.

At page 8 the following is recorded:- Q. You were with Constable Bergamin this morning sitting outside the court. A. I was. Q. And you were going through the statements with her weren’t you? A. Bit of a - yeah we were speaking about the case. Q. And you were talking about what happened? A. Yeah. Q. Why were you doing that sir when she’s a witness in the case being brought to the court to give an independent recollection of the event. A. We were just speaking. Q. Sir you were talking about the facts weren’t you? A. Yes. Q. And what were you saying to her about the facts? A. I can’t remember.”

At page 10 the following is recorded in the questioning of Constable Stebbing:- “Q. Sir I’m going to suggest to you, unless you want me to get in the witness box, that outside this morning you were talking to these two young constables demonstrating a pushing motion with your hands. I was out there remember this morning you tell me what happened. A. Yeah that happened. Q. Yeah but what about the question before that? A. What was your question? Q. Did you demonstrate the motions of what’s supposed to have happened on this date? A. Yes I did.” Again at page 11:- “Q. You remember you did the pushing motion with the hands as the girls were pointing at the statement and you were going through it out the front. Remember that now? A. Yeah.”

Having considered in detail the evidence of the plaintiff in this court together with the evidence of Constable Stebbing given before the Local Court, I have no hesitation in finding that the plaintiff’s evidence on this point was reasonable and rational.

On behalf of the defendant it was submitted that the arrest performed by Constable Stebbing was of very short duration because, almost immediately thereafter, Constable Van Akker stepped in, held the plaintiff and said words to the effect “I am effecting the arrest”. The submission continues that the arrest and imprisonment thereafter were the conduct of Constable Van Akker and one should look to his motivation rather than that of Constable Stebbing.

I do not accept this submission. A view of the totality of the evidence comfortably satisfies me on the probabilities that the arrest was effected by Constable Stebbing and that the conduct of Van Akker was merely by way of assistance. In this regard one must bear in mind that the prosecutor was not Van Akker but Constable Stebbing. This is further supported by the terms of paragraph 5 of the Amended Grounds of Defence which says “As a consequence of the actions of the plaintiff, the first defendant [Constable Stebbing] with the assistance of the second and third defendants [Constable Van Akker and Sergeant Bennett] arrested the plaintiff for having assaulted the first defendant.” FINDINGS.

It is trite law to say that the plaintiff bears the onus of establishing the allegations made by him against the defendant and that those allegations must be established to the standard of balance of probabilities.

The defendant submitted, that having regard to the nature and seriousness of the allegations sought to be proved against the defendant, the standard of proof is the standard of probabilities but the degree of satisfaction must be to that extent enunciated by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 366.

Over the objection of the plaintiff it is proposed to adopt this higher standard in relation to the issues of liability. Accordingly where in this judgment it is stated that the court is satisfied comfortably on the probabilities it should be taken that the higher standard in Briginshaw’s case is in fact being applied. See also Rejfek v McElroy (1965) 112 CLR 517.

Having regard to all of the evidence and bearing in mind the submissions of the parties and the difficulties of determining where the truth lies in evidence given five years after the event, I am comfortably satisfied on the probabilities that the version of facts given by the plaintiff is in fact the correct description of what occurred at Burwood Courthouse on 25 August 2000.

I am accordingly comfortably satisfied that the plaintiff was speaking to Constable Bergamin in a reasonable manner and that Constable Stebbing approached him, pointed his finger at him and said “Now you, you treat this officer with respect”. The plaintiff, with good reason, believed that this comment was totally unjustified and justifiably responded “I am speaking to the officer with the most ultimate respect so could you please mind your own business.”

It was about this stage that Constable Bergamin left the scene with Ayoub and went to the interview room.

I am comfortably satisfied that Constable Stebbing was enraged that the plaintiff told him to mind his own business and, instead of ending the interlude, he told the plaintiff to “fuck off”. The plaintiff responded with words to the effect “How dare you swear at me in front of all these people”. Constable Stebbing kept walking towards the plaintiff and pushed him with his right hand on the chest causing him to stumble back. The plaintiff used words to the constable to the effect of asking him what he was doing and called him an idiot. Stebbing continued to walk towards him telling him to “Get out of my personal space. Get out of my personal space”.

The plaintiff protested saying that he had a wall behind him, he was waiting for a client, he had a job to do there and where did he want him to go? Constable Stebbing then repeated words to the effect of “Get out of my personal space” and pushed him in the chest again. By this stage the plaintiff with every justification thought that Constable Stebbing was “crazy”. Whilst the constable was thus approaching him in a menacing manner the plaintiff told him to “stay off him” and, in order to fend him off, put his right hand up with an open palm facing the constable. The constable kept walking towards him so that he came into contact with the plaintiff’s hand. It was then that the constable grabbed the plaintiff and told him he was under arrest for assaulting a police officer.

On these facts which I have comfortably found on the probabilities, the plaintiff did not assault Constable Stebbing when his hand came into contact with the constable’s chest. The plaintiff merely put his hand up to fend off the advance of the constable and it was the constable’s unwarranted movement towards him which caused that contact. In any event it was a reasonable act of self-defence.

Constable Stebbing was there at the time and participated in these events. He therefore did not and could not reasonably have held a belief on any reasonable grounds that the plaintiff had assaulted him.

Nonetheless he placed him under arrest and caused him to be taken out of the lobby down the staircase of the courthouse, out into the street and something between one hundred and two hundred metres along two streets to the police station where he was detained for approximately one hour.

In addition, Constable Stebbing prosecuted the plaintiff on a charge of assaulting a police officer in the execution of his duty and maintained that prosecution up until the time that it was withdrawn on 12 February 2001.

I am comfortably satisfied on the probabilities that in prosecuting the plaintiff for assaulting him Constable Stebbing well knew that that offence had not been committed and that he was motivated to do so solely out of spite or ill will towards the plaintiff because the plaintiff had stood up to his unjustified, menacing and rude conduct.

It is common ground that Constable Stebbing laid the charge against the plaintiff comprised in the Field Court Attendance Notice (Exhibit Z) of assaulting him and that that charge was terminated in favour of the plaintiff. I have found that in laying that charge Constable Stebbing acted out of spite or ill will towards the plaintiff. He then, because of his personal contact with the events well knew that the offence had not been committed. Accordingly the count of malicious prosecution has been established.

I am further comfortably satisfied on the probabilities that Constable Stebbing, with the assistance of other police officers imprisoned the plaintiff and that imprisonment caused him to be escorted to the police station and held there for a period of about one hour. For reasons already given the constable had no reasonable or probable cause for imprisoning him.

The onus is upon the defendant to justify the arrest on the balance of probabilities.

Section 352(2) of the Crimes Act provides that a constable may without warrant apprehend any person whom the constable, with reasonable cause, suspects of having committed an offence.

I am comfortably satisfied on the probabilities that the constable here not only did not suspect the plaintiff of having assaulted him, but also, because of his participation in the events, knew that the plaintiff had not assaulted him. Accordingly this justification has not been made out and the unlawfulness of the arrest is established.

On the count for assault contained in the Statement of Claim I am comfortably satisfied that the hands on of Constable Stebbing and other police officers in the course of the unlawful arrest and imprisonment constitutes an assault upon him.

It follows that the plaintiff has established the torts of malicious prosecution, false imprisonment, wrongful arrest and assault by Constable Stebbing and that the defendant is vicariously liable for his wrongful acts. THE LIMITATION ACT.

Before going to the issue of damages it is necessary to consider matters raised by the defendant under the Limitation Act and the Civil Claims Liability Act.

In paragraph thirteen of its Amended Defence the defendant pleads:- “To the extent that the plaintiff is alleging, maintaining or otherwise seeking any compensation or an award of damages in his favour in relation to any of the causes of action relied upon the defendant pleads the provisions of the Limitation Act 1969 and maintains that the plaintiff is time barred in pursuing such actions insofar as such actions claim personal injury damages.”

In its written submission the defendant argues that in Emad Trolley v Shigar (2003) 57 NSWLR 636 it was noted that it is the characterisation of the claim for damages, rather than the characteristics of the cause of action which is important.

Having considered that case it appears to me that what was being there considered was something quite different from the circumstances of the present case. The argument appears to be that it was not until November of 2004 (that is more than three years after the accrual of the cause of action) that the plaintiff gave to the defendant copies of medical reports which appear to claim damages for what might be called personal injuries. Accordingly, insofar as the plaintiff’s claim seeks compensation for these personal injuries, it is statute barred.

The submission continues that the definition of “personal injury” in section 11 of the Limitation Act includes any disease and any impairment of the physical or mental condition of a person.

The submission continues that section 18A applies to a cause of action founded on negligence, nuisance of breach of duty for damages for personal injury. Subsection 2 of that section provides:- “An action on a cause of action to which this section applies is not maintainable if brought after the expiration of the limitation period of three years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.”

The submission of the plaintiff appears to be that although the torts sued upon are neither negligence or nuisance they do constitute a breach of duty.

I have grave doubts as to whether the causes of action pleaded would come within the phrase “breach of duty” so as to make section 18A applicable and would tend towards the view that the relevant section is 14(b) of the Act. However I make no decision on this and assume for the moment the accuracy of this submission.

In this regard the wording of subsection 2 is quite clear. The period of three years runs from the date on which the cause of action first accrues to the plaintiff.

It is trite to say that the subject causes of action accrued at a point of time when each of the elements of the respective tort sued upon came into existence. In relation to the tort of malicious prosecution that accrued at the time of the withdrawal of the prosecution in February 2001. The torts of false imprisonment, wrongful arrest and assault all accrued on 25 August 2000. The action was commenced on 7 August 2003.

Accordingly the action was commenced within the period stipulated in section 18A.

The fallacy in the defendant’s submission is that the statute provides that the time runs from the accrual of the cause of action and not from the date on which any particular head of damage claimed pursuant to that cause of action is notified.

I would therefore dismiss the defence under the Limitation Act . CIVIL LIABILITY ACT 2002.

In its Amended Grounds of Defence the defendant raises a number of defences under the Civil Liability Act .

The question of whether this Act applies to the causes of action pleaded is of significance not only in relation to the availability of defences, but also on the question of assessment of damages.

This issue was raised at the commencement of the hearing but I decided that it would be necessary for me to hear all the evidence and determine the facts so that I could determine whether this Act applies, particularly having regard to the terms of section 3B(1)(a) of the Act.

On behalf of the defendant it is submitted that the definition of damages in section 3 “includes any form of monetary compensation”. It is not limited in any way to any type of cause of action.

Part 2 of the Act is headed “Personal Injury Damages”.

Section 11 defines “injury” as including “prenatal injury, impairment of a person’s physical or mental condition or disease.”

“Personal Injury Damages” means “damages that relate to the death of or injury to a person”. The balance of Part 2 deals with a method of assessing those personal injury damages.

The question to decide is whether the damages which are recoverable under the causes of action pleaded in this case are damages which relate to “injury to a person”.

In paragraphs 10 and 11 of its Amended Grounds of Defence the defendant relies on Part 7 of the Civil Liability Act .

That part applies to civil liability of any kind for personal injury damages as defined in Part 2 or damage to property.

However it is limited to civil liability arising from the conduct of a person carried out in self-defence in certain circumstances. On the facts as I have found them there is no room for the application of the provisions of Part 7 of the Act.

In the course of his submissions Senior Counsel for the defendant sought to argue that it was open to me to find a middle ground which might give rise to the application of Part 7. However on the facts as I have found them there is no such middle ground.

Paragraph 12 of the Amended Grounds of Defence alleges contributory negligence within the meaning of the Act. On the facts as I have found them there is no contributory negligence on the part of the plaintiff.

Section 3B(1) states:- “The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) Civil liability in respect of an intentional act that is done with intent to cause injury or death.”

On behalf of the plaintiff it is submitted that the conduct of Constable Stebbing comes within this definition. On behalf of the defendant it is submitted that whilst his acts may have been intentional, they were not done with intent to cause injury or death.

The defendant submits that the word “injury” is conjunctive with the word “death” and therefore it is limited to an intent to cause personal injury in the sense of bodily or physical or mental injury.

For reasons already given I am comfortably satisfied that Constable Stebbing intentionally falsely imprisoned, wrongfully arrested, maliciously prosecuted and assaulted the plaintiff in the sense described earlier.

I am further comfortably satisfied that in doing so he had the intent or purpose to cause injury to the plaintiff in the sense of depriving him of his freedom, restraining with force his mobility, causing him humiliation, damaging his reputation, causing him the emotional upset of having to undergo these experiences and of having a criminal charge hanging over his head as well as the costs and emotional trauma of contesting the charge.

The defendant submits that none of these heads of injury come within the subsection because they are not bodily injury.

The word “injury” is not defined in Part 1 of the Act. It is defined under the heading of “Personal Injury” for the purposes of Part 1A of the Act. It is also defined for the purposes of Parts 2 and 3 of the Act. Accordingly, to determine its meaning in section 3B(1), one must look at the ordinary meaning of the word.

The revised third edition of the Macquarie Dictionary defines injury thus:- 1. Harm of any kind done or sustained. 2. A particular form or instance of harm. 3. Wrong or injustice done or suffered. 4. (Law) the infringement of a right (opposed to damage).

The fifth edition, 2002, of the Shorter Oxford English Dictionary defines it as:- 1. Wrongful action or treatment; violation or infringement of another’s rights; suffering wilfully inflicted; a wrongful act; a wrong inflicted or suffered. 2. Intentionally hurtful or offensive speech or words; an insult, an affront, a tort. 3. Hurt or loss caused to or sustained by a person or thing; harm; detriment, damage.

The fourth edition of the Australian Concise Oxford Dictionary defines injury as: Physical harm or damage, a wrongful action or treatment, damage to one’s good name.

Butterworth’s Australian Legal Dictionary includes in its definition “The infringement of some legal right often considered as having a monetary value”.

The eleventh edition of Mozley and Whiteley’s Law Dictionary defines injury as: “a violation of another person’s right; or a violation of a legal duty to the prejudice of another.”

The CCH Macquarie Dictionary of Law revised edition includes in the definition of injury, “the infringement of another’s legal right.”

In McCracken v Melbourne Storm Rugby League Football Club 2005 NSWSC 107 at paragraph 41, Hulme J said that the words of this section should be given their ordinary english meaning.

In my view the word “injury” is not limited to bodily injury it extends to all forms of injury including the classes of injury which I have held were within the intention of Constable Stebbing to inflict upon this plaintiff.

Accordingly, I would hold that, on the facts of this particular case, the acts done by Constable Stebbing were intentional acts done with intent to cause injury to the plaintiff and, by reason of subsection 1(a) of section 3B of the Civil Liability Act that Act does not apply to this particular case.

But there are further reasons why this Act does not apply to the causes of action which I have found established.

As pointed out by Powell JA in the case of McDonald v Coles Myer Limited 1995 Australian Torts Report 81-361 at pages 62, 689 and following, the tort of false imprisonment consists in the act of arresting or imprisoning any person without lawful justification, or otherwise preventing him, without lawful justification, from exercising his right of leaving the place in which he is. To constitute the tort there need be no imprisonment in the sense of incarceration, it being sufficient that the person in question has been deprived of his, or her, personal liberty for any time, however short.

His Honour went on to point out that the principal heads of damage to which regard appears to have been paid are the injury to liberty, the injury to the plaintiff’s feeling, that is the indignity, mental suffering, disgrace and humiliation with any attendant loss of social status and, where it can be demonstrated that the imprisonment has had a deleterious effect on the plaintiff’s health any resulting physical injury, illness or discomfort.

In addition, the manner in which the imprisonment is effected may lead to an award of aggravated compensatory damages, as also may the subsequent conduct of the defendant, if it tends to show that the defendant is persevering in the charge. However, Powell JA points out that it has been suggested that an unsuccessful plea by the defendant that the plaintiff was guilty of the offence charge against him by the defendant should not lead to an aggravation of damages, unless it is shown that the defendant made the charges mala fide .

In the case of Little v Law Institute of Victoria [1990] VR 247 Kaye and Beach JJ quoted from Savile v Roberts [1698] 1Ld. Raym.374 the following three forms of damage any one of which would support an action for malicious prosecution:- “1. The damage to a man’s fame, as if the matter whereof he is accused be scandalous. 2. The second sort of damages, which would support such an action, are such as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty, which has been always allowed a good working foundation of such an action. 3. The third sort of damages, which would support such an action is damage to a man’s property, as where he is forced to expend his money in necessary charges to acquit himself of the crime of which he is accused, which is the present charge. That a man in such cases put to expenses, is without doubt, which is an injury to his property, and if that injury is done to him maliciously, it is reasonable that he shall have an action to repair himself”.

In McDonald’s case (above) Powell JA put it this way at page 62,691:- “The principal heads of damage to which regard have conventionally been had in relation to a claim for malicious prosecution are injury to the plaintiff’s reputation, injury to his feelings that is for the indignity, humiliation and disgrace caused him by the fact of the charge being referred against him, pecuniary loss – as, for example, as a result of his being dismissed from his employment – and the expenses incurred in defending himself against the prosecution.”

In the case of Amin v Bannerjee 1947 AC 322, the Judicial Committee of the Privy Council was called upon to determine the classes of proceedings which could aptly be called prosecutions sufficient to found an action for malicious prosecution.

Sir John Beaumont in delivering the judgment of the Board said at page 330:- “The foundation of the action lies in abuse of the process of the court by wrongfully setting the law into motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose”.

His Lordship goes on to refer to the elements of the tort and the heads of damage which can be recovered as set out in Savile v Roberts 1698 1Ld. Raym.374 and then goes on to say:- “The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is, as explained by Bowen LJ (in Quartz Hill Consolidated Gold Mining Co v Eyre 1883 11 QBD 674), that such a case does not necessarily and naturally involve damage to the parties sued. A civil action which is false will be dismissed at the hearing. The defendant’s reputation would be cleared of any imputations made against him, and he would be indemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party. But a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily and naturally involve damage, and in such a case damage to reputation will be presumed”.

His Lordship goes on to say at page 331:- “To found an action for damages for malicious prosecution based on criminal proceedings the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results.”

From these passages it can be seen that these causes of action lie in the abuse of the process of the system of justice by wrongfully setting the law in motion and that they are designed to discourage the perversion of the machinery of justice for an improper purpose.

Furthermore, the heads of damage which can be recovered include matters which do not arise out of personal injury. Rather they arise out of the injury to a person’s reputation and the emotional upset, anxiety and distress caused by the commission of the particular torts. The causes of action arise out of injury to the plaintiff’s civil rights and in particular the right not to be unlawfully arrested or wrongfully imprisoned or to be the subject of a malicious prosecution. They do not arise out of any injury to the body of the person affected. Furthermore the availability of aggravated and exemplary damages provide an opportunity for registering the condemnation of the flagrant abuse of legal process.

This needs to be contrasted with the long title to the Civil Liability Act 2002 which is in these terms:- “An Act to make provision in relation to the recovery of damages for death or personal injury caused by the fault of a person; to amend the Legal Profession Act 1987 in relation to costs in civil claims; and for other purposes.”

In section 3 the phrase “Non economic loss” is defined to mean any one or more of the following:- a. Pain and suffering b. Loss of amenities of life. c. Loss of expectation of life. d. Disfigurement.

The heads of damage available in the causes of action pleaded in this case are quite different from those in this definition.

Part 2 of the Act is headed “Personal Injury Damages”. Section 11A provides:- “(1) This part applies to and in respect of an award of personal injury damages except an award that is excluded from the operation of this part by section 3B. (2) This part applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise. (3) A court cannot award damages, or interest on damages, contrary to this part.”

It is, therefore, clear that subsection 2 of section 11A applies regardless of the cause of action pleaded. However, the effect of this part is limited by virtue of the phrase “in respect of an award of personal injury damages.”

Under section 11 personal injury damages means damages that relate to the death of or injury to a person.

Injury is defined as:- “Injury means personal injury and includes the following: a. Pre natal injury b. Impairment of a person’s physical or mental condition. c. Disease.”

The heads of damage which are allowable in respect of the causes of action pleaded in the present case do not come within these definitions.

On behalf of the defendant it is submitted that the above definition of “injury” is inclusive, therefore it could include all heads of damage including those allowable in respect of the torts pleaded in this case.

It needs to be borne in mind that the purpose of The Civil Liability Act was to restrict the damages which courts could award. If the legislation was intended to restrict the damages which flow from the torts pleaded in this case, then the legislature could have expressly said so. It could have included within the definition of “injury” such matters as injury to reputation, injury to feelings for indignity, humiliation and disgrace. It has not done so.

Accordingly I would reject the defendant’s submission as to the construction of this definition.

Further support for this view is derived from a consideration of section 16 of the Act which provides:- “No damages may be awarded for non economic loss unless the severity of the non economic loss is at least 15% of a most extreme case”.

How would one apply “a most extreme case” in the circumstances of this case?

If one looked at a most extreme case as a person with permanent brain damage or severe quadriplegia then the heads of damage allowable in the present causes of action may well come below 15%.

However, if one has regard to a most extreme case of injury or loss arising out of actions for wrongful arrest, false imprisonment and malicious prosecution, then the damages in the present case would clearly exceed 15%.

This anomaly provides yet a further ground for holding that Part 2 of the Act does not apply to damages for the causes of action pleaded in this case.

In relation to Part 7 of the Act, the facts as I have found them do not come within section 52, 53, 54 or 54A of the Act. This is because the conduct of Constable Stebbing was not carried out in self-defence. The reasons for this have been given earlier.

Furthermore, on the facts as I have found them, the plaintiff was not guilty of contributory negligence. AS TO DAMAGES. The Plaintiff’s Background

It is first of all necessary to consider the background of the plaintiff.

He was born on 28 October 1974.

He attended Bankstown High School but his score in the Higher School Certificate was insufficient to join a university course in Mass Communications which was his primary wish.

He applied for a Bachelor of Arts course and commenced it in 1994 at Newcastle University.

He obtained good results in his first year and was then able to get to transfer to Mass Communications. He did one year of that course and decided that it was not the type of work that he wanted to do. He then decided, with his mother’s encouragement, to take a legal degree.

Because of his high results in Mass Communications he was accepted for the Bachelor of Laws degree at the University of Western Sydney from which he graduated in 1998.

He had always enjoyed playing rugby league but had injuries that precluded him from pursuing that sport. He had shoulder reconstructions on each of his two shoulders and also had a hernia problem from lifting weights.

His main health problem has been a heart condition of ventricular tachycardia from which he has suffered since the age of sixteen. He did not know the identity of his heart problem until late in 2001 when it was diagnosed by Dr Roy.

He said that ever since he was young he had been a fan of Christopher Murphy, solicitor, whom he approached in a café and sought work.

In about 1997 he started working for Mr Murphy as a paralegal instructing counsel, doing office work and taking statements.

In July 1999 he was admitted as a solicitor and thereafter continued to work in Mr Murphy’s office until January of 2005. Immediately after his admission he was appearing in court on sentences, defendant hearings, AVOs and other matters.

The policy of his employer was, so far as possible, to do all the court appearance work themselves. Counsel were briefed in most criminal trials.

His work involved contact with and discussions with police officers. The practice was a busy criminal law practice there were court appearances almost every day. He would go to courts, speak to the police prosecutor and to other police officers. When clients were arrested he was in contact with police officers.

Up until 25 August 2000 his general relationship with the police was described by him as “pretty good”. (Page 25).

He loved the work especially helping young people. Amongst the courts he would attend was the Burwood Local Court probably once a week.

Mr Christopher Murphy, a solicitor since May 1972, testified that he first heard of the plaintiff through his (Mr Murphy’s) mother who told him of a young boy in thongs working at the local video shop who was very kind to her and spoke well to his sister who suffered from Down Syndrome.

It was the plaintiff’s father who owned the video shop and approached Mr Murphy telling him that his son had newspaper clippings about him on the wall of his bedroom and asked if he could get a job with Mr Murphy.

The plaintiff contacted Mr Murphy who took him on while he was still a student. He started coming in very frequently and Mr Murphy said “he embarrassed me into having to pay him eventually”. (Page 327).

He described the plaintiff as absorbing information from his peers and people in the office who were teaching him how to be a lawyer.

Mr. Murphy described the plaintiff as faultless with nothing being “mucked up”. Mr Murphy moved his admission as a solicitor in July 1999 and thereafter the plaintiff went from instructing to appearing and then to total control of matters. He reached the stage where he would not bother Mr Murphy in matters. He knew how to approach a case and what to do. He was never aware of any problems with clients and said that the plaintiff always wore a suit and was neat and tidy.

At page 335 Mr Murphy was asked what to his knowledge was the reputation of the plaintiff in the circle in which he mixed as at 25 August 2000. He answered:- “I recently attended the Lakemba Day, approximately three weeks ago, a day devoted and advertised on the radio. The Lakemba Day held my paper run at Haldon Street. I went there to Lakemba, spoke to many people about Adam Houda and I found him to be held in very high esteem, very well regarded. A lady from the Police Boys Club at Belmore that I used to be a member asked, could I get Adam to help support their club? His reputation is widely known as a good person and a friend to young people.”

He added that the plaintiff had a reputation as a successful advocate of high integrity. (Page 335).

Mr. Murphy’s evidence stands unchallenged and uncontradicted. The Arrest and Subsequent Events

I now pass to the events which occurred following the plaintiff’s arrest.

On that morning the plaintiff was present in the lobby of the courthouse in his capacity as a solicitor awaiting the arrival of William and Dennis Sloman for whom he was to appear in court later that day.

From the time of his arrest he was held by three police officers who pulled him to the steps leading from the court lobby and down those steps to the street. Thus held, he was taken outside onto the street. He was then walked down that street for a distance of about one hundred metres then turned right into a further public street to the police station which is about a further twenty yards away - all in full view of the public.

Whilst he was being dragged out of the court by the three officers his clients, the Sloman brothers, showed up and saw him being thus treated.

Whilst he was being thus held he was protesting that they were hurting his arms, asking them to stop doing that, telling them that he was not going to run away and that he would walk to the police station if that is what they wanted him to do. He said that they just kept hold of him and one of them, probably Sergeant Bennett, was calling him “pork chop”.

He was put into an interview room at Burwood Police Station with the door left open. It was then that he looked outside of the room and saw Van Akker, Stebbing, Bergamin (and he believed one other officer) sitting around a table writing on a piece of paper and he heard words to the effect of “No, what you really should say is this and say he pushed first” words like that. The events of what happened there have already been described.

The plaintiff was not fingerprinted nor did he undergo the normal charging process. Instead a Field Court Attendance Notice was issued and given to him.

He was in fact released at 11:17am. He then rushed back to the courthouse to seek out possible witnesses. Details of what he did have already been described.

The Custody Records in evidence (Exhibit BB) show that he made a phone call from the police station to Mr Murphy’s office at 10:55 am. The plaintiff said that he then told Mr Murphy what had happened to him.

Another lawyer from Mr Murphy’s officer appeared for the Sloman brothers on that day.

After obtaining details from witnesses at the Courthouse, the plaintiff returned to his office where he immediately sat at his computer and typed out a statement as to what had happened. A copy of that statement is Exhibit G.

Mr Murphy insisted on acting as his legal representative on the charge of assaulting a police officer. The case was listed for mention on a number of occasions and was finally set down for hearing for two days commencing on 12 February 2001.

The plaintiff had a number of problems between the time of the arrest in August 2000 and the hearing of the court case in February 2001. He was anxious and depressed and was starting to get panic attacks. He felt as though he was going into a shell. He lost his confidence and felt very vulnerable.

Before 20 August 2000 he had what he called “performance anxiety” when he was doing defended hearings in court. The anxiety he experienced after that date was quite different.

He believed that he had to tell his parents and was reluctant because his mother was then suffering from cancer. When he told them they were upset for him and he in turn was upset at their concerns.

The plaintiff has suffered from diabetes for many years. After the arrest he found that his anxiety was affecting his sugar levels and it was harder to control them.

His concerns and upset were aggravated when, about a month before the hearing date at about nine o’clock at night, Constable Stebbing knocked at the door of his house and served a copy of the brief upon him.

The plaintiff protested that his legal office was on record as his representative and it was not appropriate for Constable Stebbing to be coming to his house. Constable Stebbing replied that he was totally within his rights to be serving it at his house.

Whether this method of service was appropriate or not is beside the point. The point is that this was a further source of humiliation and upset to the plaintiff.

The plaintiff described his feelings whilst at the court on 12 February 2001 as feeling numb and remembering that his heart was playing up with palpitations.

After Constable Stebbing had given some evidence there was an adjournment after which the case was withdrawn. The plaintiff felt relief.

The plaintiff said that when he was arrested, taken through the streets to the police station, held there and given the Field Court Attendance Notice, he felt gutted and traumatised by what had happened. He described it like a surreal experience because this was a system in which he believed and it had been let down by police officers and it has left an everlasting impact upon him.

At the time of his arrest there were at least fifty people present and his arrest in front of them caused him humiliation.

Being aware that his clients saw him being taken away from the premises, obviously under arrest caused further humiliation.

He felt very numb and the shock continued and he felt extremely vulnerable because it was as if his whole world had collapsed on him.

After his arrest he had bruises on his arms particularly on his left arm.

A report from Dr Haddad, Exhibit Q, states:- “This is to certify that Mr Adam Houda consulted me on 28 August 2000 complaining of pain and tenderness at the left upper arm. Mr Houda claimed that he was graped [sic] by three police officers during an argument in the court three days before. On examination there were two two centimetre bruises with small abrasion at the left arm, another two smaller bruises half a centimetre by half a centimetre about three centimetres away from the first abrasion. These marks could be due to pressure by holding fingers. Mr Houda was given advice to take some paracetamol tablets if needed.”

These injuries of themselves are not of any great moment. But they do support the plaintiff’s evidence of the force with which he was restrained in full view of people attending the courthouse and also of members of the public in the streets along which he was taken to Burwood Police Station.

Prior to the dismissal of the charge on 12 February 2001 he had tremendous worry about it. He believed that his very future was at stake.

The night before the hearing he did not sleep much because there was a lot riding on the case including his career.

This belief was perfectly reasonable. As a solicitor he was bound to uphold the law and here he was facing a charge of assaulting a police officer in the execution of his duty a charge which carries a maximum penalty of imprisonment for five years. See sec. 60(1) Crimes Act .

The charge against him was heard at the Burwood courthouse. The list of cases to be heard that day was publicly displayed and when he saw his name on it as a defendant he felt deeply ashamed and embarrassed and upset because he felt that he did not deserve to be treated like that. A copy of that court list is Exhibit B.

The magistrate before whom he came for the hearing of the case was Mr Brennan. He was a magistrate before whom he had previously appeared as a solicitor and his appearance to face this charge made him deeply embarrassed.

He has since appeared many times in front of the same magistrate as a solicitor and he always has a deep sense of embarrassment about the incident.

He sought the assistance of Dr Ryan, a psychiatrist, in about 2003 in relation to feelings of anxiety and stress. However he did not mention the arrest or the charging as a source of stress.

The report of Dr Roy, Exhibit L, reveals that the plaintiff first saw him on 6 June 2001 by way of referral for a second opinion after he had presented elsewhere with chest pain and was about to have a coronary angiogram. When Dr Roy examined him at that time there was nothing abnormal to find. He had a stress test and was able to get his heart rate up to 190 without any problems. Dr Roy, however, was concerned about the symptoms of episodes of palpitations occurring not only with exercise but when stressed and when those episodes occurred the plaintiff was aware that his heart was irregular and he had a feeling of impending doom.

Dr Roy organised for him to have an event monitor which revealed a ventricular tachycardia which the Doctor described as a dangerous rhythm which carries with it the threat of sudden death.

Dr Roy referred him to Dr Thorburn an electrophysiologist following which he was admitted to St Vincent’s Hospital for an electrophysiological study on 28 August 2001. This demonstrated that he had a right ventricular tachycardia coming from the outflow tract of the right ventricle. An attempt was made to ablate the area causing this tachycardia but it was unsuccessful. A second attempt was made at Prince Alfred Hospital to ablate the tachycardia focus which was also unsuccessful.

Dr Roy concludes:- “Adam is currently on medication for his tachycardia but the fact remains that he does have an underlying life threatening rhythm disturbance as well as his diabetes. He will probably eventually need an automatic defibrillator.”

As an example of circumstances where the arrest, imprisonment and prosecution have arisen after the conclusion of the prosecution to the detriment of the plaintiff appears in a letter on the letterhead of the New South Wales Department of Corrective Services dated 1 January 2003 signed by Mr Scott Westlake Senior Correctional Officer Drug Detector Dog Unit (Exhibit D):- “I contacted Auburn Police, in case the visitors decided to cause trouble and police attended my location to obtain a statement if I required to take the abusive matter any further. Upon arrival I was advised that Murphy and Houda were well known to them and in fact Houda had recently assaulted one of their members and that Murphy represented Houda in court. I believe the matter is still pending an outcome.”

When he read this letter the plaintiff felt distraught because after his case had proceeded in a court of law and he was totally vindicated, his name was in the police intelligence computer system as one who had assaulted a police officer. He felt distraught because he had an ongoing relationship with police officers all the time and for them to have that stored in their computers was a continuing damage to his reputation and he considered it absolutely disgusting.

On behalf of the defendant it was submitted that there was nothing improper, illegal or wrong with the Police Service having such a record on its computer system and, in the circumstances, in passing the information on to Mr. Westlake.

This submission misses the point. The point is not whether the actions of the police were wrong or improper. The point is that material injurious to the reputation of the plaintiff and humiliating him had cropped up eleven months after the dismissal of the charge against him.

Evidence was given by Sergeant Scifleet who was the custody officer at Burwood Police Station on 25 August 2000.

His evidence was that because the plaintiff was a solicitor and he had other people in custody at the time he did not want to put him in the dock of the charge room. Accordingly he instructed Sergeant Bennett and Constable Van Akker to escort the plaintiff to the interview room.

This meant that his property was not recorded and his fingerprints and photographs were not taken which would have been the normal procedure.

His reasons were given at page 883 as follows:- “As I said before, he was a practising solicitor. He indicated to me he had clients at court which were waiting to have matters heard and I would have directed Sergeant Bennet to take him to the interview room to proceed by Field CAN, Field Court Attendance Notice, and have the person return to court as quickly as possible. “

The custody record, Exhibit BB, reveals that the plaintiff was arrested at 10:37, he arrived at Burwood Police Station at 10:42, he made a phone call to Mr Murphy at 10:55 and he was released at 11:28.

There is no doubt that the plaintiff was given less humiliating treatment whilst at the police station than was legally permissible.

This does not mean that the plaintiff’s damages are reduced. It merely means that they are not as high as would have been the case had he been put through the normal charging, searching, fingerprinting and photographing processes.

Prior to the hearing of the case on 12 February 2001, the plaintiff had to report the charge to the Law Society. This also caused him humiliation and upset.

In January 2005 the plaintiff left Mr Murphy’s office and set up a one man practice employing no staff. His evidence relating to his reasons are set out at pages 55 and 56 thus:- “Well, it was a critical point in my life because I developed another type of arrhythmia that I didn’t want. That arrhythmia, that’s called a friable afabriation (?) I had an attack one morning before work. I was rushed to hospital. I stayed there for a few days, at Bankstown Hospital. Then to Prince Alfred Hospital. And I said enough is enough. I made up my mind at that time that I wanted to get on top of my medical problems no matter what and in order to do that, I had to leave Murphy’s Lawyers because it was a very challenging job and I became a senior solicitor there prematurely because the senior solicitors had left. I was handling most of the matters that came through the door and to balance the stress of that with my anxiety and problems that I have developed over the period of time, it was too much. And I made a decision to leave. And that was that. Q. Your family situation can you tell us about what your family is? A. Yes I developed a relationship with my partner in 2001. And subsequently, we have two beautiful daughters and they’re all dependent on me. Q. Did you take your family situation into account when you left the Murphy office? A. Yes I was in a catch 22 situation. On the one hand Murphy’s Lawyers was becoming financially very rewardable. My pay increased substantially. And my employer offered me a fifty percent partnership in the firm. But on the other side of it, I wanted to be alive, to spend some time with my family. So I left and set up my own firm. Q. To what extent in your mind was the decision made, to what extent did the incidents with the police and the aftermaths thereof play any part in your decision to leave Murphys? A. Well obviously that’s when I started experiencing these problems that affected my mind and I couldn’t get over them although I tried very hard to, it just seemed to get worse every year. I thought if I got a reduced work rate maybe that will help. I’m in the process of finding out at present. Q. What was it about your performance that you noticed changed between the incident with the police and when you left Murphys? A. Well like I said my confidence was done. And I did a lot more briefing to counsel. A lot more of that. Whereas before I wanted to do every single case that came through the door. I briefed counsel more often because my anxiety problems were elevated when I went inside a courtroom. That’s what I found and in dealings with the police. I found that it aggravated my anxiety problems. A lot of the time I have panic attacks. Q. Prior to the incident with the police, other than performance anxiety, had you had any such anxieties when you dealt with police or when you went into courtrooms? A. No never. I was a very confident person. Q. What is your present situation in terms of your practice? A. Well the reason for setting up my present firm was so that I could do less matters and I am doing substantially less matters now. I probably go to court once a week now as opposed to five times a week. And sometimes at Murphys I appeared at three different courts in one day. I am doing much less court work mostly mentions and that type of stuff. And I also now take Fridays completely off. I try to anyway when there is no trials on and I’m trying very hard to. And I am seeing Professor Munro as often as I can. I speak to him and have counselling sessions. I want to give it a real go to get on top of my problems that affect my mind. “

The plaintiff said that prior to 25 August 2000 he had a passion for the law and he loved doing what he was doing but that diminished afterwards.

When asked, page 57, how he would describe his general happiness in life after the incident as compared with beforehand he replied:- “Well particularly when I developed diabetes in 1996, 2000, I can say that was the happiest period in my life. What the diabetes did for me was it helped me in a funny way. That is, I decided to become really, really fit. And I came super fit to the extent that I used to help the first graders, rugby league first graders in their pre-season training. When we do the endurance events, I used to run rings around them. I used to come first in all activities and I was extremely fit. I was extremely fit and extremely happy. I didn’t have any problems with anxiety or anything like that. The last five years have been the darkest period in my life. It is a vicious circle. The problem is that I’ve got this heart problem as well. The anxiety with the aggravated heart problem. If I had the anxiety minus the heart problems, it would be much easier. Like I said the last five years have been a dark period in my life. “

The plaintiff said, concerning the damage of the incident to his reputation, that he heard a lot of talk after the incident and he still gets court staff that remind him about it. The whole thing was a nightmare for him.

The plaintiff agreed that the only medical person to whom he has mentioned the events of August 2000 is Mr Watson Munro, a consultant psychologist. Although he has seen other doctors and referred to stressors he had never mentioned to them any connection between the incidents of August 2000 and his anxieties.

The plaintiff agreed that from June 2000 until 25 August 2000 he was regularly seeing doctors at the Bankstown Medical Centre and went to hospital because of asthma and complications with the medications.

In the course of his evidence before this court, Dr Roy pointed out that the diabetes can exacerbate the heart condition thus (page 283):- “Well, the exacerbating factor for him is when your blood sugar goes down your body responds by producing adrenalin and adrenalin immobilises glycogen from the liver and puts the sugar up. But a good little dose of adrenalin is not so good for right ventricular tachycardia.”

Mr Christopher Murphy (page 329) gave evidence that on the day of the incident the plaintiff was at the point of tears and very upset. He added that from the day of that incident there was a change in the plaintiff’s demeanour. After that day he seemed to go into his shell. The plaintiff just started doing adjournments and appeared to “drop off”. He lost the courage to deal with authority.

Mr Watson-Munro, a consultant forensic psychologist, reported to the plaintiff’s solicitor on 16 November 2004, Exhibit O. In that report he refers to the incident at Burwood Court on 25 August 2000 and says of it:- “Arising from that event and its sequelae, Mr Houda has developed a range of symptoms indicative of a diagnosis of an adjustment disorder. These problems in turn have caused an aggravation of significant health problems including paroxysmal ventricular tachycardia and exercised induced ventricular tachycardia. As you may be aware, Mr Houda also suffers from Type 1 diabetes and chronic asthma”.

In evidence before the court he said that he has been providing counselling to the plaintiff since May 2004 on an average of every two to three weeks in addition to telephone contacts.

Under cross-examination (pages 355 and 356) Mr Watson-Munro finally agreed that the incidents of August 2000 have nowhere near the importance of operating as a stressor upon the plaintiff as do his physical problems and condition.

Dr Champion a psychiatrist reported to the defendant’s solicitors on 5 September 2005 in relation to an examination of the plaintiff on 1 September.

In that report Dr Champion concludes:- “Whilst the events of August 2000 may have caused Mr Houda emotional upset at the time it seems likely that he suffered a normal emotional reaction to those events which would be likely to include anger, anxiety and embarrassment. However the stressor described is not when judged objectively, the type of stressor capable of producing any significant ongoing anxiety. Any current psychiatric disorder i.e. adjustment disorder with anxious and depressed mood suffered by Mr Houda is in my view most likely to be associated with his physical disorders and the unhappy prognosis he has been given.”

I found the reasoning of Mr Watson-Munro as singularly unconvincing. I totally agree with Dr Champion that any adjustment disorder or anxiety or depression which the plaintiff suffers is a consequence of his serious physical condition and the knowledge that that condition is life threatening. This is particularly so as he has a partner and two young children who are totally dependent upon him.

I accept that the plaintiff did leave the prospects of the partnership with Mr Murphy to go into practice on his own because of his state of health. In the passage from his evidence which is quoted above he frankly agrees that it was the feeling of illness and the repeated admissions to hospital which precipitated his decision. It was a decision which was very wise for him to take. But it is a decision which is based upon his physical illness the true nature of which was not made known to him until after August 2000, namely in about mid 2001.

In short the plaintiff has failed to satisfy me on the balance of probabilities that he has suffered any psychiatric illness as a result of the incidents of 25 August 2000 and the subsequent prosecution.

This does not mean that he has had no suffering at all as a consequence of the wrongful acts perpetrated against him.

I am comfortably satisfied that he sustained anger, severe embarrassment and considerable concern over his future as a solicitor, a belief based upon reasonable grounds that his reputation has been damaged, the fear that the incident will crop up in the future and be used against him, and a stinging sense of injustice in the way in which he was so badly treated.

These are not matters to be taken lightly.

The plaintiff was in that courthouse in his capacity as a solicitor awaiting clients when, without any lawful justification, he was arrested in front of some forty to fifty (or perhaps more) members of the public including other police officers. In their presence he was forcibly taken to the staircase, taken down that staircase to the ground level out into the street and then paraded through the street in view of all members of the public including his own clients over a distance in excess of one hundred metres. He was then taken into the police station and held there for a period of approximately an hour.

The humiliation and embarrassment which would be caused to a solicitor in these circumstances would be most intense. The feelings of anger and injustice suffered would be very high.

Thereafter he had to report the matter to the Law Society. He had to tell members of his family and watch the distress that that news caused them.

The charge itself of assaulting a police officer in the execution of his duty carrying as it does a maximum penalty of five years’ imprisonment was a charge of such gravity that if established could cause him to lose his status as a solicitor of the Supreme Court of New South Wales.

This sword was hanging over his head for a period of approximately six months. During this period he had to face clients, courts, police officers and his family members.

During this period he had the further insult, embarrassment and humiliation of having Constable Stebbing calling at his home at nine o’clock at night to serve on him a copy of the brief in the presence of his family members.

People with whom he dealt in his profession such as court staff at Burwood and police officers would know that he had been arrested in the court lobby and escorted against his will out of the building and round to the police station. They would also probably know of the charge that had been laid against him.

The effects of all of this on his well being was quite devastating.

And then on 12 February 2001 when the case was listed for hearing his name was on the court list as a defendant.

The withdrawal of the charge on 12 February 2001 undoubtedly gave him relief. It meant that the charge was no longer in existence and that the threat to his continued ability to practise as a solicitor was removed.

But there was always the fear that the events could come to haunt him in the future. This fear materialised in the document, Exhibit D some eleven months after the charge was dismissed.

And all this arose, not because of any inadvertence or carelessness or even negligence. It arose because of the unlawful, unwarranted, spiteful and malicious conduct of Constable Stebbing whose duty it was and is to uphold the law and not to abuse the legal rights of others.

The plaintiff has not been vindicated by any apology. He has been compelled to embark upon the present litigation in order to establish that his treatment was unlawful.

Since commencing this action in August 2003 he has had the worry and concern, let alone the cost, of it.

The hearing occupied almost three weeks during which the defence sought to justify the conduct of Constable Stebbing by alleging against the plaintiff that he had acted in an aggressive manner threatening Constable Stebbing to the extent where his conduct started as an assault without a battery and ended as an assault with battery.

The Grounds of Defence alleged that he had committed an assault on Constable Stebbing. It alleged that he had committed a serious unlawful act namely a breach of section 60 of the Crimes Act .

The cross-examination of the plaintiff and of his witnesses as well as the evidence called on behalf of the defendant sought to establish that he had in fact committed the assault even though Constable Stebbing knew very well that this was not the case.

In relation to the count for the assault contained in the Statement of Claim the only assault established by the plaintiff is embodied within the acts of the police officers in laying hands on him in the course of his arrest and escorting him from the upper level of Burwood Courthouse to the police station. It is indeed part and parcel of the acts of unlawful arrest and wrongful imprisonment. Accordingly any award of damages under this count will be included within the award of damages under the counts of false imprisonment and unlawful arrest.

The plaintiff has had to sit through three weeks of hearing during which his conduct has been attacked. Constable Stebbing knew there was no justification for this attack and accordingly I would hold that it was not done bona fide . The plaintiff’s damages have been aggravated. QUANTIFICATION OF DAMAGES.

Earlier in this judgment I set out the views of Powell JA in the case of McDonald v Coles Myer Limited (1995) Australian Torts Reports 81-361 as to the classes of damages recoverable in actions for false imprisonment and malicious prosecution. There is no point in repeating them.

In the same case Clarke JA quotes at length from the speech of Lord Diplock in Cassell and Co Limited v Broome & Anor (1972) AC 1027.

Without repeating it here I would also refer to the speech of Lord Hailsham of St Marylebon LC appearing at pages 1070 and following.

His Lordship, although talking of damages for defamation, said words applicable to the present causes of action at page 1071:- “In actions of defamation and in any other action where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.”

His Lordship quotes with approval from Windeyer J in Uren v John Fairfax & Sons Pty Ltd 117 CLR 115 at 150:- “It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as a consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”

As mentioned earlier, I have not found that the plaintiff has suffered any personal injury. I am not satisfied that the plaintiff has sustained any psychiatric injury.

In the case of Praed v Graham (1889) 24 QBD 53 Lord Esher said:- “The jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his (the defendant’s) conduct has been before action, after action and in court during the trial.”

Clarke JA in McDonald’s case (above) at page 62,687, points out that the court has to take into account, as relevant to the solatium, the fact that the plaintiff had, following the arrest, suffered the hurtful experience of the trial which followed almost inevitably from the prosecution, the instant civil trial, the absence of any apology, the persistence in the false and hurtful allegations which were found not to be made out, and the damage to his reputation.

As is pointed out by Powell JA in McDonald’s case the heads of damage recoverable in an action for malicious prosecution differ slightly from those recoverable in an action for false imprisonment or unlawful arrest or assault. However, there is a considerable amount of overlapping between the heads of damages recovered in each of these classes of action.

For this reason it is impracticable to allocate an award of damages to each individual cause of action. To do so would be unfair to the defendant because it could well result in a double counting of the damages. In assessing the plaintiff’s compensatory damages I emphasise that I am not satisfied that the plaintiff has suffered any physical or psychological illness as a result of the respective torts. He has however suffered a considerable amount as already described above.

I do propose to distinguish between compensatory damages, aggravated damages and exemplary damages.

I would allow for compensatory damages the sum of $100,000.

The plaintiff’s damage has been aggravated by the way in which the present case was conducted with its totally unjustified persistence in allegations of misconduct on the part of the plaintiff. I would allow for aggravated damages an additional sum of $20,000.

In the case of XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR at page 471 Brennan J said:- “As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of the exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v Harvey (128 ER 761) substantial exemplary damages were awarded of a trespass of a high handed kind which occasioned minimal damage, Gibbs CJ saying ‘I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?’”

Lord Diplock in Cassell and Co v Broome (above) said that the social purpose to be served by an award of exemplary damages is “to teach a wrongdoer that tort does not pay.”

The conduct of Constable Stebbing clearly comes within the phrase highhanded conduct in contumelious disregard of the plaintiff’s rights.

The plaintiff himself did not in any way contribute to the shocking treatment which was visited upon him.

Under these circumstances I assess exemplary damages in the sum of $25,000.

It is appreciated that Constable Stebbing is no longer a defendant in the case but that the State of New South Wales is. However by statute the State is vicariously liable for the wrongs of Constable Stebbing.

Accordingly I find in favour of the plaintiff in the total sum of $145,000.

I was requested by counsel not to make any orders in relation to interest or costs until they had had the opportunity to make further submissions. As a result I shall invite counsel to make submissions on those issues. FORMAL ORDERS

I make the following orders:- i. Judgment in favour of the plaintiff against the defendant on each of the causes of action pleaded. ii. I assess damages as follows:- 1. Compensatory damages $100,000.00 2. Aggravated damages $20,000.00 3. Exemplary damages $25,000.00 4. Total $ 145,000.00 iii. I invite submissions on the questions of interest and costs.