Cullen v State of New South Wales

The plaintiff was born in Ireland in 1989, where she now lives. In 2011 the plaintiff took up residence in Australia, in Sydney. She worked for various companies until obtaining a permanent job in 2016 as an account manager. She was happy and healthy.

In January 2016 the plaintiff attended an Invasion Day rally as a spectator. During the rally the Australian flag was ignited. The police were present. The rally passed without incident.

In January 2017 the plaintiff again went to an Invasion Day rally, once more as a spectator. The organisers of the rally had agreed, with the police, to a condition that there would not be any burning of Australian flags.

The protest group made its way along Broadway, in Sydney’s CBD. One of the protesters, a Mr Birrugan Dunn-Velasco, drew a crowd around him and made a speech which included some inflammatory suggestions. He extended this theme by stating that he would burn the Australian flag. He doused a small flag in an accelerant.

The police, conscious of the condition that was about to be breached, rushed forward to impede the anticipated ignition. These police were members of a specific group, the Operations Support Group (the OSG). As the OSG officers moved through the crowd Mx Hayden Williams noticed a police officer (Sgt Amy Lowe) filming the surrounding events with a small handheld video recorder. I note here that Mx Williams requested the title of “Mx” and the use of the pronouns ‘them’ and ‘they’. I will respect their wishes. I am grateful to counsel for doing the same.

Mx Williams knocked the camera out of the officer’s hand causing another officer, Sgt Damian Livermore to rush forward and attempt to apprehend them. In the course of the physical contact between Mx Williams and the officer they both fell to the ground and knocked over the plaintiff. She struck her head on the ground and suffered significant injury.

I make no further comment on the extent of the injury because the parties have agreed the quantum of the case in the event that the plaintiff is successful on liability.

The plaintiff says the police owed her a duty of care. She says that the actions of the police were in breach of that duty and were negligent. In addition, she says that the arrest of Mx Williams was unlawful and that she was the victim of an assault and battery.

The defendant, effectively the police, says that no duty of care was owed to the plaintiff, however, if there was found to be a duty of care it was not breached and their actions were entirely lawful. Further, the defendant relied on the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) in justification of its actions and said that the plaintiff has not met the standard required by s 43A(3) of the Civil Liability Act 2002 (NSW) (CLA).

The plaintiff provided an evidentiary statement. After some of the contents of the statement were withdrawn from evidence, the plaintiff was not required for cross-examination. Her retrograde amnesia extends to her having no memory of attending the rally.

The first witness to give oral evidence was Mr Harry Holbrook. He currently works in Melbourne for the Victorian Department of Justice and Community Safety in a policy role. In 2016 and 2017 he was living in Sydney. He also attended both the 2016 and 2017 rally. He said the latter was significantly larger than the former.

Mr Holbrook described the rally making its way down Broadway and then coming to a stop near the intersection with Buckland Street. The path of the rally can be seen in the map (Exhibit A, p 228).

Mr Holbrook described the events concerning Mr Dunn-Velasco. He said a circle formed around Mr Dunn-Velasco but there was some distance between him and the public, which was confirmed in a video shown to the Court (Exhibit B).

Also confirmed in the video is that Mr Dunn-Velasco’s speech was “emotive in parts”. But he said that the “crowd was calm and listened closely”. Mr Holbrook said that Mr Dunn-Velasco said he was going to burn the Australian flag and then poured liquid onto a flag that was on the ground. Mr Holbrook continued:

In relation to his general impression of the rally Mr Holbrook said:

Under cross-examination Mr Holbrook said that Mr Dunn-Velasco was giving his speech on the roadway, close to the pavement. He said the crowd was generally on the southern side of Broadway.

Mr Holbrook said that he knew a Mr Raul Bassi who was one of the organisers of the rally. He said Mr Bassi gave directions to various persons concerned with monitoring the rally and general guidance.

Mr Holbrook said that the police moved in immediately after Mr Dunn-Velasco bent down to light the flag. He noticed what he thought was either smoke or fire extinguisher fumes in the air. These are clearly visible in the video (Exhibit B). He said the police were aggressive and some panic emerged in the crowd. There was some pushing and shoving. He did not recall the throwing of water bottles. I note here that the video footage does depict one airborne water bottle.

When Mx Williams touched him on the shoulder Mr Holbrook thought that Mx Williams was moving away from the police. An officer was trying to grab Mx Williams. A woman fell to the ground while the police officers were trying to pull Mx Williams down. Mr Holbrook did not recall the crowd grabbing Mx Williams. He remembered Mx Williams being placed in handcuffs at some stage.

Mr Holbrook accepted that his memory, having regard to the passage of time, was not precise but he did not back away from the contents of his statement or concede any inaccuracy.

The next witness was Dr Byron Smith. Dr Smith is an occasional lecturer with a Doctorate in ethics. His statement commences at p 119 of Exhibit A. He attended the rally which he described as:

He stated that the crowd stopped from time to time to hear speeches. At one of these stops he noticed “what looked like a cloud of chalk or smoke”. He simultaneously saw “a line of between 15 to 20 police rushed forward directly into the thickest part of the crowd where the speaker and mobile PA system were.” He continued:

There was no challenge to the above quoted observation. He then went on to say:

Under cross-examination an attempt was made to suggest that the woman referred to above was not the plaintiff. It is difficult to say whether Dr Smith was referring to the plaintiff. However, if he was not, his evidence is at least an indication of police officers forcefully coming into contact with more than one female member of the public.

Dr Smith said he did not see any person arrested. In his statement he confirms that at least one empty water bottle was thrown.

The next witness was Mr Padraic Gibson, a senior researcher at the University of Technology Sydney. He has a Doctorate in history. In 2017 he was an active member of Fighting in Resistance Equally (FIRE). In this capacity he took part in organising the 2017 rally. He was familiar with the Summary Offences Act 1988 (NSW) and knew that a notice of intention needed to be served on the police seven or more days before the intended rally, pursuant to s 23.

In 2017 the role of notifying the police had been performed by Mr Bassi. The notification is referred to as a Form 1. Mr Gibson said that he had been involved in promoting the rally including arranging posters and contacting trade unions. He said he had not taken part in the Form 1 process, and he did not know whether there had been conditions attached to the permission granted for the rally.

Mr Gibson said that there were more people than expected and he did not know if marshals had been appointed.

In his statement Mr Gibson said that he attended the rally with his partner and their two young children. He said that he “sensed a change in the atmosphere” as the rally approached Railway Square. He noticed that most of the police “were in dark coloured uniforms as opposed to the usual light blue shirt and navy pants.” He thought these police were part of the Riot Police. He thought their attitude was unfriendly, stating that “they were stony-faced and seemed unresponsive”.

Mr Gibson stated that at the 2016 rally the Australian flag had been ignited without incident or confrontation with the police. Under cross-examination he said that Mr Dunn-Velasco had told him that he would burn a flag but he, Mr Gibson, had not been aware of a condition to the contrary. It is worth noting here that, without more, it is not an offence to burn the Australian flag.

Returning to his statement, Mr Gibson stated that he saw Mr Dunn-Velasco crouched down and then:

Mr Samuel Kwon gave evidence. He is a senior service desk officer for Hearing Australia. He was concerned about “Aboriginal causes and human rights”. This is why he attended the rally.

Mr Kwon stated that the rally was “completely peaceful”, but he noticed “a heavy police presence. Many of the police were dressed in riot gear and were very large and strong.” He continued:

Mr Kwon then goes on to describe his interactions with a Constable Russell, stating that “[Constable Russell] knocked a female to the ground”. He continued that:

Mr Kwon was later charged in relation to his interaction with Constable Russell. Under cross-examination he was asked some questions about the preparation of his statement. He was shown some video and agreed that the female person he had seen knocked down was a person with a purple sash. This is not the plaintiff. Once again, however, the knocking down of persons other than the plaintiff does not assist the defendant.

Mr Kenneth Canning is “a writer and a poet”. He has a Masters degree in oral and applied history. He works at the Rainbow Lodge as a senior mentor. In 2017 he was a member of FIRE and also of the Indigenous Social Justice Association (ISJA). He said that FIRE was a type of umbrella organisation which covered ISJA. FIRE has since been dissolved but Mr Canning continues to be a member of ISJA.

Mr Canning took part in organising both the 2016 and 2017 Invasion Day rally, alongside Mr Bassi, but was not involved in submitting a Form 1 for the rally nor did he know about any conditions that had been imposed. These matters fell under the responsibilities of Mr Bassi.

Under cross-examination Mr Canning agreed that he had spoken to a Detective Constable Freudenstein who had said “[p]olice expect a safe march”.

Mr Canning stated that he was “shocked to see some of the Riot Police were carrying fire extinguishers.” He had not seen this before. He told members of the rally “the riot squad is here be careful”. He said that some members of FIRE were designated safety officers. They wore ‘Hi Vis’ vests.

Mr Canning described the rally as moving along, but with stops for persons to make speeches from time to time. Some of the speeches were planned but others were not. The speech given by Mr Dunn-Velasco was not planned. Nevertheless, he was provided with a microphone and portable speaker. During his speech Mr Dunn-Velasco said he was going to burn the flag.

Mr Canning was more interested in the unseemly language being used by Mr Dunn-Velasco. He knew there were children in the crowd and thought the language was inappropriate. He told Mr Dunn-Velasco to moderate his language. Mr Canning stated:

Under cross-examination Mr Canning said he did not hear Mr Dunn-Velasco tell the crowd to move in or say that he wanted to cause a disturbance. In his statement Mr Canning continued:

Mr Canning said he asked the crowd to move on, which it did. Thereafter the police withdrew. At [41] of his statement he describes some actions taken by a Senior Constable Baker. He agreed that the officer involved may not have been Senior Constable Baker.

Ms Eimhear Glackin provided two statements. The first, handwritten, was prepared on the same day as the incident. The second was prepared some days later. Ms Glackin was, and is, a friend of the plaintiff. She gave her evidence by audio-visual link from Ireland.

Ms Glackin referred to the police officer grabbing hold of Mx Williams as executing a rugby tackle upon them. She did not think that Mx Williams was specifically fleeing from the officer, rather they were moving away in the same manner as the rest of the crowd.

Ms Glackin was very critical of the police officer. She said that he and Mx Williams remained on top of the plaintiff for some “minutes”. This is probably an over-estimation.

Ms Glackin stated that before the tackle she had seen “four to five police in riot gear run down to the crowd”. She continued:

Under cross-examination Ms Glackin identified herself and the plaintiff, then unconscious, near the median strip on Broadway. She emphasised that the scene was frightening, and that the young person did not have a chance to resist. She said the officer was much larger than them. She thought the rugby tackle was unprovoked.

Ms Glackin distinguished between the police who had “charged in” and the ‘normally’ dressed police officers who arrived a little later. While Ms Glackin clearly had a view about the conduct of the police, I thought her evidence seemed truthful with perhaps some unconscious exaggeration, as already stated, about the length of time the police officer and Mx Williams were in contact with the plaintiff on the ground.

Mx Williams was the final lay witness called by the plaintiff. Mx Williams is a social worker working in the mental health field. Mx Williams gave evidence from Melbourne by audio-visual link. Earlier objections to Mx Williams giving evidence at all, and remotely, were ultimately withdrawn.

Mx Williams was closely cross-examined, but generally kept to their statement. They stated that they were about 30 metres from Mr Dunn-Velasco who was “surrounded by the crowd”. They said that:

Under cross-examination Mx Williams endeavoured to explain why they had taken this action. They said they were fearful that indigenous people would be charged. Mx Williams could not understand why a camera was needed and why body cameras were not sufficient. Mx Williams’ intent in disrupting the filming was motivated by their fear of unfair persecution of indigenous people. They wanted to stop the filming of Aboriginal people. They expressed fears about the safety of Aboriginal people in the company of police.

Mx Williams said that following the interaction with Constable Lowe they moved backwards in a “fight or flight response”. They could not recall members of the crowd pulling them away. They said they were trying to escape their feelings of anger and fear. They wanted to go somewhere else to calm down.

As they were moving away, they said that they were grabbed along their ribs and shoulders by another person. This was Sgt Livermore. Mx Williams said that as they were grabbed, they swung around and came into contact with a female (the plaintiff).

Mx Williams stated that they and the officer “tripped over the median strip and fell onto the road with Sgt Livermore falling on top of me”.

Mx Williams stated:

There was some cross-examination about whether Mx Williams fell on the median strip or on the northern or southern side of the strip. I am not sure what the intent of the cross-examination was. Suffice to say that the defendant suggested that the pair had fallen on the southern side but Mx Williams thought it was the northern side.

This is a convenient point to say that I thought all of the plaintiff’s witnesses were impressive and doing their best to tell the truth. I have deliberately included some of their occupations and academic achievements to indicate that they were not random protestors taking part in an unruly demonstration but rather, intelligent persons with a common interest in highlighting their individual perceptions of injustice.

The first witness called by the defendant was Sgt Amy Lowe. For convenience, I will refer to the ranks of the police officers according to their current status. In January 2017 Sgt Lowe was a Constable working in the Redfern Police Area Command. Her task during the rally was to film the protest, “paying particular attention to any person committing offences or breaching conditions of the Form 1.” The Form 1 is attached to her statement (Exhibit A, p 136). For present purposes the conditions include:

Sgt Lowes states that she saw Mr Dunn-Velasco during the day with a red container which she thought looked like lighter fluid. She stated that she “had been told earlier in the day by a Sergeant unknown to me, while we were walking along Lee Street, that there was lighter fluid in the container and to film him.” One wonders why Mr Dunn-Velasco was not challenged about the lighter fluid when it was first identified.

Sgt Lowe says that she was watching Mr Dunn-Velasco speaking to the crowd with a microphone. She says, “the crowd was tightly packed together as they were listening to speeches”. Notably, she does not say that the crowd was standing close to Mr Dunn-Velasco. Sgt Lowe continued:

I think the just quoted description is important. There were a number of police officers carrying the extinguishers. They ran into the crowd. One police officer could have made their way through the crowd with an extinguisher to put out any fire that may have emanated from the small flag.

Equally significant is Sgt Lowe then stating:

The importance of this description is that the strike to Sgt Lowe’s hand occurred while the police officers with the fire extinguishers were running into the crowd. In other words, the actions of Mx Williams occurred during the rush of the officers bearing the fire extinguishers. It is therefore difficult to view the two incidents (the intervention into the crowd and the interaction with Mx Williams) as not being part of the same event.

Sgt Lowe stated that three charges were laid against Mx Williams by the issuing of Court Attendance Notices. They were assault a police officer in the execution of the officer’s duty, resist an officer in the execution of duty and destroy or damage property. Sgt Lowe said that on 14 September 2017 Mx Williams “was sentenced to a s 10 Bond at the Downing Centre Local Court for the offences he was charged with.” I don’t think much turns on the point, but I note that Mx Williams was in fact acquitted of the charge of resisting arrest.

Under cross-examination Sgt Lowe agreed that the purpose of her filming included being able to identify persons at a later time. This is entirely consistent with Exhibit E which is a document entitled “Actions On” referred to in the sergeant’s statement. When this document was tendered by the plaintiff, as being a document that was omitted from the court book, it was suggested by the defendant that it may not have been seen by Sgt Lowe. I initially found this suggestion difficult to understand. Sgt Lowe states at [5b] of her statement that she was provided with a copy of the operational orders which are annexure B to her statement. Exhibit E is specifically included within Sgt Lowe’s annexure. The plaintiff tendered the document immediately after Sgt Lowe had given evidence. Not only had the defendant not asked her to clarify this point but made no attempt to recall Sgt Lowe.

I would have drawn an inference that Sgt Lowe was provided with Exhibit E. It seems to be a document specifically aimed at the officers in the field. However, the waters were significantly muddied by the following witness, Inspector Baker, whose evidence was a little confused but, I think, he effectively gave evidence that Exhibit E was not given to officers like Sgt Lowe although its contents would have been the subject of explanation during the briefing.

Acting Inspector Baker’s evidence is not consistent with Sgt Lowe’s evidence. He did not think she would have been given the Operational Orders, which she clearly stated she did receive. Initially I thought Inspector Baker had indicated that Exhibit E would have been received by the team leaders, such as Sgt Livermore. However, even that conclusion later came into doubt when he seemed to suggest that may not have taken place.

Ultimately there may not be much difference between whether or not the police officers were given Exhibit E or simply taken through it, even in a shortened form. The document, or the messages contained under the headings “Detection of an offence during a static gathering or mobile procession” and “Fire – burning flags, effigies or other articles, flares etc.” are particularly important,

In relation to the detection of an offence, the obligation of the officer is to bring the matter to the attention of a Team/Field Supervisor. It is not to immediately make an arrest unless “immediate action required to prevent a serious risk to public safety that is occurring or imminent”. That was not the case here. Once Mx Williams had knocked the camera out of Sgt Lowe’s hand Mx Williams was, to quote her, “walking away”. There is no suggestion of any continuing assault upon Sgt Lowe or any other person.

In relation to burning a flag, again the incident is to be brought to the attention of a superior. Immediate action is not to be taken unless “a person has been injured or a serious risk to public safety or property is imminent”. None of the conditions were present.

I note here that the guidelines in Exhibit E are effectively expressions of common sense. The police would not want to inflame a large crowd of protesters when there is no imminent danger and appropriate action, such as arresting or identifying a person, can be taken at a later time.

Returning to the cross-examination of Sgt Lowe, she confirmed that there were two separate interactions between Sgt Livermore and Mx Williams. He initially tried to take hold of them but was unsuccessful. He then took the action of grabbing Mx Williams which ultimately resulted in the fall and contact with the plaintiff. Returning to the guidelines in Actions On, Sgt Livermore should not have engaged in the second encounter, perhaps not even the first.

Sgt Lowe said that she had seen Mr Dunn-Velasco making his speech. She was about ten metres from him. She agreed that a circle had formed around him with one or two metres between him and the crowd. She also agreed that the police officers who rushed in with fire extinguishers had necessarily needed to pass the members of the public in the rear of the circle who were between the officers and Mr Dunn-Velasco.

The next witness was Acting Inspector Baker. I did not find his evidence particularly helpful. Not only were the inconsistencies mentioned above about Exhibit E exposed but other inconsistencies arose. For example, he stated that only one fire extinguisher was set off and that it was used to extinguish a fire. The evidence is clear to the effect that there were at least two fire extinguishers discharged and no fire had actually been lit.

In his statement Inspector Baker attempted to explain why it was necessary for the OSG to act in the manner that it did. He referred to the following matters:

All of the matters raised by Inspector Baker certainly justify the OSG being put on alert and being ready to extinguish any fire. But this conclusion is very different to the OSG rushing into the crowd, discharging at least two fire extinguishers and doing all of these actions in the absence of a fire. One might even observe that if the fire retardant had been expended by the time they reached the fire, their actions would have been both useless and dangerous. The fire extinguishers were small, as seen at the very beginning of the footage (Exhibit C).

Inspector Baker is obviously wrong when he refers to the OSG officers extinguishing the fire. His statement is consistent with my view that he was endeavouring to give Mr Dunn-Velasco’s actions an aura of more peril than they deserved.

The next witness was Sgt Livermore. He also refers to receiving the operational orders during the pre-rally briefing and the annexure to his statement refers to the Actions On document (page 201 of Exhibit A).

Sgt Livermore stated that he was a team leader on the day. He was in charge of three teams of seven officers who had crowd control duties. As a team leader, on Inspector Baker’s evidence, he would have been given the Actions On document. He did not remember if that was the case or not. One can assume however that he would have been familiar with its contents.

In relation to Mx Williams, Sgt Livermore said that he was standing near Sgt Lowe when he saw “a couple of police officers with fire extinguishers together with other officers from the OSG dressed in overalls move quickly into the crowd and activate the fire extinguishers. At this point, I saw the crowd moving in toward police officers with the extinguishers and I saw some members of the crowd pushing and kicking the police officers.”

Sgt Livermore then stated that he saw Mx Williams “run” up to Sgt Lowe and “with their right arm raised over his head, [Mx Williams] swung with force in a downward motion on to Sgt Lowe’s left arm, causing her arm to drop down and the camera to fall out of her hand and onto the road and break apart.” He said that Mx Williams “then went to run back into the crowd”. The two lots of running observed by Sgt Livermore are to be contrasted with the walking described by Sgt Lowe.

Sgt Livermore stated:

One has to wonder what further offences Sgt Livermore had in mind. He also refers to the thousands of people that were present, again highlighting the sensibility of the Action On guidelines which counsel against unnecessarily provocative actions within a large crowd of protesters.

Returning to his statement, Sgt Livermore stated:

In relation to the OSG officers, Sgt Livermore stated:

When cross-examined about the arrest of Mx Williams, Sgt Livermore said:

A telling aspect of Sgt Livermore’s evidence was that he was annoyed by the actions of Mx Williams. Those actions were uncalled for, to some degree illegal and well capable of inducing annoyance on the part of an observer. But Sgt Livermore was an experienced police officer. Sgt Lowe was assaulted but this was a single action before Mx Williams tried to leave into the crowd. There was no continuing assault upon Sgt Lowe. There was no imminent danger to her or to anybody else.

Sgt Livermore made no attempt to apprehend Mx Williams by other than physical capture. He did so in the midst of a crowd containing both protesters and bystanders. He paid no regard to the proportionality of his grabbing of Mx Williams to the surrounding circumstances.

The final witness called by the defendant was Senior Constable Halsted. She stated:

Senior Constable Halsted’s evidence was consistent with Inspector Baker to the extent that the operational orders were explained rather than handed out in hard copy form. Whatever the case however, the orders were brought to the attention of the officers.

Senior Constable Halsted was in a team led by Sgt Livermore and had the task of crowd control.

Under cross-examination she agreed that the crowd was dense and tightly packed.

On her observation of the arrest of Mx Williams, she thought Sgt Livermore could have swung Mx Williams around. She thought it possible that they both made contact with the plaintiff. She accepted, contrary to her statement, that the plaintiff may have been a bystander, rather than a protestor.

Senior Constable Halsted confirmed that the camera had been knocked out of Sgt Lowe’s “hand”. This is also recorded in her statement, at [19]:

The final witness was Mr Daniel Halpin, the chief executive officer and managing director of Cybertrace Pty Ltd. He produced a report dated 9 May 2022 which was tendered by the plaintiff in support of her case.

The whole of the report was subject to objection as well as, if the report was admitted, significant individual portions of it. The basis for the overall objection was that Mr Halpin did not have the expertise to give the opinions included in the report. It was submitted that, as far as policing was concerned, his experience went no further than about six years as a general duties officer in the New South Wales Police Force.

I indicated that I disagreed with the submission, referring to the statement of qualifications and experience commencing at p 2 of the report. In my view Mr Halpin’s relevant expertise is based on matters going well beyond his time as a general duties officer. It extends to assorted roles in different security type organisations, admittedly not all as a police officer, but certainly in the fields of security and the protection of the public.

In addition, in respect of his comments on Aboriginal culture and sensitivities I noted his police service in a remote New South Wales town in respect of which he stated, at [48]:

In respect of the objections to individual parts of the report, I dealt with them in argument, allowing many of the objections, but not all of them. Most of them fell away in consequence of my informing counsel that I was satisfied that Mr Halpin had the expertise to express his opinions, but with some exceptions, such as his comments on the existence of a duty of care.

The main conclusion drawn by Mr Halpin, at [151], was that the OSG officers, as “professional crowd controllers….. should have demonstrated a higher level of restraint when the flag burning was attempted”.

As will be seen below, this is a conclusion that I think is easily drawn on the evidence. I do not think Mr Halpin’s opinion has much bearing on this conclusion. The conclusion would have been reached without the report.

I also make the following comments about Mr Halpin’s report:

Overall, I derived little assistance from Mr Halpin’s report. To the extent that his conclusions accord with mine, they are conclusions that are matters of common sense flowing from a simple interpretation of the evidence.

The defendant submitted that there were a number of obstacles facing the plaintiff. Without any disrespect to the detailed submissions made by the defendant, I summarise the obstacles as follows:

The above obstacles must be seen in the light of the following conclusions, each of which I will explain below:

The defendant submitted that the existence of a duty of care was irreconcilable with the statutory regimes under which the police operated.

This was said to be the clear message of the authorities. Particular reference was made to Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [57] (Sullivan):

Then, at [60], is this passage:

In my view the last quoted passage from Sullivan allows for the existence of a duty of care, provided that the duty is not irreconcilable with other duties, in particular statutory duties, imposed upon the alleged tortfeasor. My initial thought was that a common law duty of care might be excluded because of its inconsistency with the statutory powers given to the police by legislation like the Police Act 1900 (NSW) or LEPRA. In Hunter and New England Local Health District v McKenna [2014] HCA 44, the High Court said at [29]:

McKenna was concerned with the inconsistency arising between a duty of care and the Mental Health Act 2007 (NSW). This Act, however, does not contain a section equivalent to s 4 of LEPRA:

The defendant, relying on authorities such as Tame v State of New South Wales [2002] HCA 35; 211 CLR 317 (Tame), Cran v State of New South Wales [2004] NSWCA 92; (2004) 62 NSWLR 95 and State of New South Wales v Klein [2006] NSWCA 295, submitted that the existence of a duty of care would inhibit the capacity of the police to carry out their duty.

One of the passages I was referred to from Tame is at [57] in the judgment of Gaudron J:

This passage, I think, highlights a very significant distinction with the current case. The plaintiff here is not Mx Williams or Mr Dunn-Velasco, both of whom might be seen as persons who were the subject of the police action. Quite to the contrary, the plaintiff was a bystander, who fell victim to the actions of the police in their pursuit of entirely unrelated persons and events.

In Tame at [125] McHugh J, said it seemed “preposterous to suggest that an officer has a duty of care” in taking down a statement. He said a duty would “impose on them (the police) either an intolerable burden or a meaningless ritual”. Once again, the circumstances in Tame are vastly different to the present case. It is to be remembered that the question of whether or not a duty of care exists can vary according to the factual circumstances of the case.

Hayne J, at [298] said:

The same distinction that I have already mentioned arises again from this passage. While a duty of care to a person being investigated may be denied, that does not mean there is no duty of care to an entirely innocent person who is not being investigated.

The cases make it clear that police do not have a general immunity. There is scope for the existence of a duty of care. As I have said, this is clear from [60] in Sullivan.

The plaintiff submitted that this case fell squarely within the ambit of the decision of the Supreme Court of the United Kingdom in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 (Robinson). I was taken to [55] and then [74]:

The case of Hill referred to in [55] of Robinson, is Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 which was approved by the High Court in Sullivan as well as in a number of decisions of the NSW Court of Appeal.

In my view, subject to the particular facts of the case, there is no reason why a common law duty of care cannot be imposed on a police officer in the manner described in Robinson at [55].

The defendant submitted that ss 6 and 13 of the Police Act 1990 (NSW) were sections inconsistent with, and therefore irreconcilable with, a common law duty of care. Section 6 states:

Section 13 is the oath or affirmation taken by a police officer. As at January 2017, it was in the following terms:

The keeping of the peace extends not only to dealing with people who are not peaceful but also to not disrupting those who are at peace. The latter is precisely what was done by the OSG officers in their sudden entry into the circle surrounding Mr Dunn-Velasco. Looking at the video footage, the crowd surrounding Mr Dunn-Velasco seems to be a combination of the interested, the vaguely interested and the entirely disinterested. However described, the crowd is certainly at peace before the intervention of the OSG officers.

Section 6 of the Police Act 1990 (NSW) specifically imports the provisions of LEPRA, which at s 4 states:

The obligations of a police officer at common law are consequently relevant to the actions of the officer under the Police Act 1990 (NSW). Further the definition of “police services” in s 6, includes “the protection of persons from injury or death”.

The defendant further submitted that when looking at the relevant salient features I should take into account that:

I think the answer to all of these points is that there was no need for the OSG officers to take the actions they decided upon. The situation was peaceful. Mr Dunn-Velasco had not lit the flag and there was probably little danger even if he did. Of course, police are called upon to make quick decisions but that does not give them permission to intervene where intervention is either not necessary or can be achieved in a non-violent manner. Police do not have carte blanche to act as they please. It is a crucially salient feature of this matter that there was no reason for the OSG officers to intervene with fire extinguishers ‘blazing’.

The participants in the rally, and the bystanders, were persons entitled to protection from injury or death.

The police were understandably apprehensive about Mr Dunn-Velasco burning a flag. Between the police and Mr Dunn-Velasco was a crowd of innocent persons. Mr Dunn-Velasco had not yet ignited the flag. The flag, for want of a better word, was a small object, perhaps better described as the size a pillow slip with all the attributes of the Australian flag (as seen in Exhibit B in the Buzzfeed footage). I reject the suggestion that the police had an effective immunity to charge through and amongst innocent persons in order to prevent the lighting of the flag.

Police abandon chasing a speeding motor vehicle because of the potential of harm to themselves, to the public and even to the law-breaker driving the vehicle. Police would not discharge a firearm to disable a villain if it was necessary to fire the shot through a crowd.

I think the circumstances in the present case, while obviously not precisely the same, are closely analogous to those in Robinson. The OSG were faced with the rear of a crowd into which they rushed, without warning, bearing at least two fire extinguishers. Not only was the risk of injury to the crowd reasonably foreseeable but so too was the chaos and panic that was likely to arise by the sudden arrival of the officers, together with the discharging of the fire extinguishers. This in turn created the circumstances in which Mx Williams reacted, by assaulting Sgt Lowe, and then came to be arrested by Sgt Livermore.

I am satisfied that a duty of care was owed to the public, including bystanders like the plaintiff, present at the rally.

In relation to s 5B of the CLA, a risk of harm consequent upon rushing unannounced into the crowd with fire extinguishers operating is plain. The risk was not insignificant so that a reasonable person would have taken precautions to avoid the risk. In this case simply announcing their arrival to the crowd would probably have sufficed. A single officer with a fire extinguisher walking through the crowd to arrive at the scene of the possibly impending ignition would have achieved all of the objectives the OSG team seems to have had in mind.

The next issue that requires consideration is s 43A of the CLA, which states:

There is no dispute that the police force is a public authority. Therefore, in deciding breach, not only is s 5B of the CLA relevant but so too is s 43A. The following factors stand out:

In respect of (h) in the previous paragraph, the defendant submitted that an inference could not be drawn because there was no “vacuum” in the evidence which could be filled by the drawing of an inference. I disagree. Inspector Baker stated that he had a conversation with Sgt Hogan about extinguishing a fire if necessary. But there was no evidence to explain why Sgt Hogan and his team decided to rush into the crowd without warning and discharge their fire extinguishers, all to extinguish a fire that did not exist.

I think the conclusion that the OSG officers acted recklessly or unreasonably in the terms of s 43A(3) is easily reached.

My view is reinforced by Exhibit E, in particular the Actions On document. Under the heading “Fire - burning flags, effigies or other articles, flares etc.” the following is stated:

The Actions On document is only a guideline, but its exhortations are an indication of what could be considered a reasonable exercise of the statutory power. Here there was no communication with any supervisor, there was no need for immediate action or the isolation of a hazard, there was no apparent risk of serious injury and, of course, there was no fire.

The video footage is probably enough to sustain the conclusion that the actions of the OSG team were reckless and out of proportion to the danger possibly threatened and certainly in comparison to the risk of injuring members of the crowd either by direct contact with the rushing officers or through the panic and confusion that was likely to emerge.

Causation is governed by s 5D of the CLA. It essentially imposes a ‘but for’ test. The onus rests and remains squarely on the plaintiff.

I have found above that the intervention of the OSG into the crowd was negligent. The defendant submitted that even if this finding was made the intervention did not cause the harm to the plaintiff because the actions of Mx Williams in assaulting Sgt Lowe were an intervening act which broke the chain of causation.

I disagree. Firstly, the panic created by the OSG officers initiated the actions of Mx Williams and the chaos was the catalyst for Mx Williams’ attack upon Sgt Lowe. In this way, the OSG officers initiated a domino effect, culminating in the injury to the plaintiff. Otherwise stated, the plaintiff would not have been injured but for the actions of the OSG officers. Mx Williams was arrested within the melee that had been created by the OSG officers.

I was also reminded by counsel for the defendant that the entire incident took place within a very short period of time. The reminder was intended to minimise the effect of the OSG intervention. It serves, more importantly, to strengthen the connection between the actions of the OSG officers and the arrest of Mx Williams.

Further the proximity of the moving and panicked crowd dominated the manner in which Sgt Livermore arrested Mx Williams. Sgt Livermore said that members of the crowd were assisting Mx Williams and were punching and kicking police officers. This was a scene, clearly evident in the video footage, of chaos, created (caused) by the actions of the OSG officers.

Secondly, proof of causation is not dependent upon there being only one causative act. There may be more than one. In Strong v Woolworths Limited [2012] HCA 5, the High Court said, from [20]:

In March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 509, Mason CJ said:

It is important to emphasise, both in relation to breach and causation, that the police moving through the crowd was for the purpose of preventing the lighting of the flag. It was not to arrest Mx Williams. The need for their arrest arose from their reaction to the police as they made their way towards Mr Dunn-Velasco. In other words, but for the police intervention no issue would have arisen with Mx Williams. In turn there would have been no need to apprehend Mx Williams and no confrontation would have occurred leading to the plaintiff being knocked to the ground.

Thus far I have found that the OSG officers owed the plaintiff a duty of care, that the duty was breached, and the breach caused the injury to the plaintiff. The plaintiff is thereby entitled to a verdict for the amount agreed upon by the parties.

It is not necessary to consider the balance of the allegations against the defendant, namely that the arrest was lawful under s 99 of LEPRA, and s 43A of the CLA. However, I will do so in case I am wrong on the liability stemming from the actions of the OSG officers.

Section 99(1) of LEPRA is as follows:

The first point to note is that the onus is on the defendant to establish that the arrest was lawful. The defendant must prove that the arrest took place in compliance with s 99(1). It must follow that s 43A has no part to play in deciding if the arrest was lawful.

The second point is that arrest is a last resort. The then Attorney-General in the Second Reading Speech of the LEPRA Bill told Parliament:

In Re Bolton; ex parte Beane (1987) 162 CLR 514 at 528, Deane J said:

Deane J’s comments about a Commonwealth police officer are equally applicable to a State officer.

I accept, and it was conceded, that Sgt Livermore suspected on reasonable grounds that Mx Williams had committed an offence.

The defendant emphasised that it was enough to satisfy s 99(1)(b) if Sgt Livermore subjectively believed that the arrest was “reasonably necessary”, for any of the reasons set out in the subsection. It was submitted that he had stated that he had such a belief, and no question was put to him to challenge that belief.

In his statement, at [15], Sgt Livermore stated:

The plaintiff submitted that:

I suspect that Sgt Livermore acted because of his personal perception of what had occurred. Nevertheless, I agree with the defendant that Sgt Livermore only needed to establish a subjective belief and that his belief, as expressed above, was not dismantled under cross-examination. He was certainly questioned about the alternatives available to him, including a verbal arrest, but I do not think there was a specific challenge to his asserted beliefs.

Consequently, I do not think I am able, despite my suspicions, to reject Sgt Livermore’s evidence. It follows that a finding that the arrest was lawful is inevitable. I think this finding puts to rest the plaintiff’s allegations of assault and battery against Sgt Livermore.

The fact that the arrest was lawful does not necessarily exclude liability arising from the arrest if a duty of care was owed by Sgt Livermore and if that duty was breached. A police officer might well lawfully arrest a person but in doing so negligently cause harm to the person for which he could be liable.

The starting point here is whether Sgt Livermore owed the plaintiff a duty of care.

The defendant submitted that in order to gauge whether a duty of care existed on the part of Sgt Livermore I needed to examine the “salient features” of the factual circumstances. The defendant’s written submissions concentrate on the features attached to crowd control as opposed to the arrest by Sgt Livermore.

The plaintiff made the point that the various authorities concerning the existence of a duty of care, in particular those where no duty was found, concerned factual situations which might be seen as unusual. They did not concern ‘every day’ police activity such as the arrest of a suspected offender. The duty of care was therefore not novel.

Nevertheless, submitted the plaintiff, the salient features identified by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 76 NSWLR 649; [2009] NSWCA 258 favoured the existence of a duty of care. I do not propose to go through each salient feature listed by his Honour at [103]. I think features such as “the foreseeability of harm”, the “nature of the harm alleged”, the “degree of vulnerability of the plaintiff to harm”, “knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff” and “a proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant” all speak for themselves as being evident in the current case.

One of the salient features is the “consistency with the terms, scope and purpose of any statute relevant to the existence of a duty”. Sections 230 and 231 of LEPRA state:

The “reasonably necessary” component required in the use of force and in the making of an arrest are consistent with a duty of care imposing a requirement not to act negligently. Negligence, at its essence, is a failure to act reasonably.

Accordingly, I think that Sgt Livermore owed the plaintiff, who must have been standing very close to him as a member of a crowd surrounding him, a duty of care which made him susceptible to an allegation of negligence in the manner in which he arrested Mx Williams. The defendant conceded that if the arrest of Mx Williams was carried out negligently then causation would logically follow.

I think it was. The following reasons are relevant to both ss 5B and 43A of the CLA:

In respect of s 5B, a risk of harm of colliding with persons when taking physical action within a small crowd is foreseeable and not insignificant. Precautions were available, including attempting a verbal arrest or even an arrest not involving a forceful grabbing. If persons are caught up in a physical altercation between others there is a probability that harm will occur and, as seen in this case, that the harm could well be serious. The burden of taking precautions was easily overcome by, at the very least, attempting other means of arrest or not arresting Mx Williams at all at that time.

As to s 43A I think Sgt Livermore’s conduct was reckless because it ignored the strong potential of harm to persons close by, to a degree “that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of….. its power”.

I refer once more to the Actions On document in support of my conclusion. Under the heading “Detection of an offence during a static gathering or mobile procession” the first guideline is that “[a]ny offences detected are to be brought to the attention of the Team/Field Supervisor via VKG”. Mx Williams had committed the offence. Mx Williams was not on a rampage of attacking police officers. There was no need for “immediate action required to prevent a serious risk to public safety that is occurring or imminent”.

Again, I think the Actions On document is a reflection of what might be expected of a statutory authority exercising a statutory power. The forceful arrest of Mx Williams within the crowd and without a need to prevent further offending, or stop current offending, amounted to a reckless exercise of the power of arrest.

As I have mentioned above, the defendant did not dispute a finding of causation if I found negligence in the manner of the arrest. It follows that the plaintiff is again entitled to a judgment in her favour derived from the negligence of Sgt Livermore.

I will delay the making of final orders until I have been informed of the amount of the quantum agreed by the parties. I will also give the parties the opportunity to make any submissions on special costs orders.

(Following the handing down of reasons, the Court was informed that quantum had been agreed in the sum of $800,000.00. The following final orders were made: