State of New South Wales v Shepherd

THE COURT: On 7 March 2019, Acting Judge Craig QC, sitting in the District Court of New South Wales, handed down a judgment in which he found that the plaintiff, Mr Justin Wayne Shepherd (who we shall refer to in this judgment as the respondent) was injured as a result of the battery he sustained at the hands of Constable Marsman on 12 August 2014 in circumstances we shall describe more fully later in these reasons.

In a separate judgment given on 9 April 2019, the primary judge made orders awarding the respondent a sum of $515,661 by way of damages together with costs on the ordinary basis to 23 September 2017 and, thereafter, on an indemnity basis.

The State of New South Wales (the appellant) appeals against those orders, both as to liability and damages.

The respondent, by notice of contention, seeks to uphold the decision on an alternative basis which he submits is supported by hospital notes tendered in the proceedings, together with certain evidence of Constable Marsman to which, it is said, no consideration was given by the primary judge.

The following factual matters expressed in summary form were found by the primary judge and not challenged on appeal.

On 12 August 2014, shortly before 2.00am, police attended residential premises in Doonside in response to a report that two men were fighting, with one man injured and bleeding. An ambulance arrived at the premises shortly after the police officers. Upon arrival, the police officers observed a man lying in the driveway. That man, Mr Garry Shepherd, was the respondent's father. The officers were told that the head wounds suffered by Mr Shepherd had been inflicted by a neighbour, Mr John Bond.

While Mr Shepherd was being treated in the ambulance, police officers attended the premises of Mr Bond two doors up the road where he was arrested. Following his arrest, Mr Bond was placed in the rear of a police van, BN17, with the intent that he be conveyed to Blacktown Police Station to be interviewed and charged.

The altercation between Mr Bond and Mr Shepherd occurred in the context of an already acrimonious relationship between the two men, which had previously led to physical altercations and an Apprehended Violence Order (AVO) being made against Mr Bond in favour of Mr Shepherd. The acrimony was caused by a conversation between Mr Shepherd and the respondent, in which the respondent (who earlier in his life had formed a romantic relationship with Mr Bond's daughter) informed Mr Shepherd that Mr Bond had sexually molested his daughter and her sibling. The respondent was generally aware of the acrimony and the circumstances that had given rise to the issue of the AVO in favour of his father, Mr Shepherd.

The respondent was not present during the 12 August 2014 altercation. He arrived a short time afterwards and saw his father in the ambulance. He then proceeded down the road towards some police officers and two police vehicles.

As to the respondent's subsequent interaction with the police officers, at the time at which the respondent first observed the police, there were three police officers in the vicinity of those vehicles but as the respondent approached, there was only one police officer who was standing adjacent to the vehicle BN17 in which Mr Bond was detained, namely Constable Marsman.

When the respondent approached Constable Marsman and BN17 he was walking quickly, calling out in a loud voice and repeating several times “[a]re youse going to, finally, do your fucking job now? Is this what it fucking takes?” and “[h]e is a fucking paedophile. I am going to kill him.”

As the respondent was crossing the intersecting road towards BN17, Constable Marsman asked him who he was and to stop. The respondent continued on his path towards BN17, and Constable Marsman repeated the direction to stop with outstretched arms and palms raised, with a pushing motion in and out to indicate that the respondent should stop.

The respondent nonetheless continued towards Constable Marsman and BN17, as a result of which Constable Marsman moved towards the respondent at a slower pace than that at which the respondent was walking.

When the distance between the two was reduced to about 1.5 metres, the respondent, who was then at arm's length from Constable Marsman, was forcefully pushed in the chest by Constable Marsman in a defensive action known as a “check-drill”. The respondent then lost his balance and fell so that he was lying partially on the nature strip with his hip and leg close to or over the gutter.

The “check-drill” action was described by one of the police officers who gave evidence, Sergeant Mark Kneipp, as:

In relation to the first check-drill, the primary judge made the following finding at [212] of his judgment:

The critical issue for the purposes of this appeal is what, if anything, happened next after the circumstances we have described in [14] above and whether the primary judge’s finding involved error and/or a denial of procedural fairness to the appellant.

There were two radically differing accounts advanced by the respondent and Constable Marsman.

The respondent’s account as summarised by the primary judge at [28]-[29] was that:

The account of Constable Marsman was that there was only one physical interaction, that being the first check-drill the subject of the finding referred to at [16] above. On Constable Marsman’s account, the respondent fell awkwardly after the first check-drill and screamed out in pain when he did so. The primary judge recorded at [105] that:

The primary judge also summarised evidence that had been given in support of the respondent’s account by his mother, his brother and his then girlfriend, as well as evidence given in support of Constable Marsman’s account by other police officers.

At [165]-[194] of his judgment, the primary judge reviewed what we will compendiously refer to as the corroborating evidence. He pointed to inconsistencies and difficulties with the corroborating evidence on both sides of the record. With one exception, which related to the evidence of a Constable Waterhouse, the appellant makes no criticism of the primary judge’s analysis and assessment of this evidence.

At [195] of his decision, having reviewed differences in the accounts of various police witnesses as well as differences in the accounts of witnesses called on behalf of the respondent, the primary judge said that:

Having made this observation the primary judge continued: “[f]ounded upon the evidence I have discussed and distilling from that evidence the more likely course of events, I make the following findings …”. He then made the following findings in relation to the critical issue:

It is evident that the finding expressed in (13) above did not involve an acceptance of either the respondent’s account of “the critical issue” or that of Constable Marsman.

On the respondent’s account, Constable Marsman had not on this second occasion pushed him forcefully in the chest with both hands (what the primary judge in [213] described as the “second check drill”) but, rather, had physically thrown him over his leg (a very different physical action to the pushing motion entailed in a check drill) and then commenced to knee him in the groin repeatedly.

On Constable Marsman’s account, there was only ever one check-drill, being that which the primary judge held involved the reasonable use of force necessary for the exercise of his function. His Honour also found that immediately following his fall, the respondent had cried out in pain.

There is no reasoning supporting finding (13) which addresses the “critical issue”. Rather it is expressed as a bare conclusion. Furthermore, there is no reasoning which explains the evident rejection of Constable Marsman’s evidence as well as the rejection of the respondent’s account of events.

Indeed the finding is not supported by the evidence of either of the principal witnesses or any of the corroborating witnesses. Whilst a primary judge is not bound to accept all aspects of any witness’ account, and in an appropriate case may accept parts of one witness’ account and parts of another witness’ account, the ultimate finding must have some basis in the evidence: Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 at [91]; see also Bruce v Cole (1998) 45 NSWLR 163 at 188 ; Bell v Commissioner of Taxation [2012] FCA 1042 at [84]; Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353 at [73].

These matters lie at the heart of the appellant’s appeal although issue is also taken with the primary judge’s rejection of the evidence of Constable Waterhouse which it is said was corroborative of Constable Marsman’s evidence. Unlike Constable Marsman’s evidence, however, the primary judge did give some reasons (at [193]-[194] of his judgment) as to why reliance may not be able to be placed on Constable Waterhouse’s evidence including an inconsistency in one respect with Constable Marsman’s evidence (as to the direction which BN17 was facing, and therefore as to his line of sight) and the incomplete state of his notebook.

The High Court has made it plain on many occasions that a duty to give reasons for decisions is “an incident of the judicial process”: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 667 (Gibbs CJ); [1986] HCA 7, quoting Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; [1983] 53 LGRA 325 at 332). Indeed, in Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [44] (Wainohu), French CJ and Kiefel J (as her Honour then was) said that “…it is … a defining characteristic of a court that it generally gives reasons for its decisions”. Further, in Wainohu at [92], Gummow, Hayne, Crennan and Bell JJ described the quelling of controversy by the giving of reasons as a “hallmark distinguishing substantive judicial decisions from arbitrary decisions”.

A failure to give reasons, or to give adequate reasons, can in certain circumstances amount to an error of law: Fleming v R (1998) 197 CLR 250; [1998] HCA 68 at [22], citing Pettitt v Dunkley [1971] 1 NSWLR 376 (Pettitt). The precise content of the duty to give reasons for judicial decisions varies depending on the nature of the decision in question: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (Soulemezis).

It is clear, however, that a trial judge should provide reasons for findings on material factual issues. As Emmett AJA (with whom Leeming JA and Payne JA agreed on this point) said in ISS Facility Services (NSW) Pty Ltd v State of New South Wales [2016] NSWCA 87 at [47]:

Earlier, in Keith v Gal [2013] NSWCA 339 at [117], Gleeson JA observed that “it is essential to expose the reasoning on a point critical to the contest between the parties”. In Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2], Allsop P (as he then was) observed:

A failure to explain the basis of a crucial finding of fact can amount to an error of law, though when it is contended that a judge’s reasons do not disclose the basis for a material finding of fact, “great care needs to be taken that dissatisfaction with the finding of fact does not mislead the [c]ourt into holding that the learned judge has failed to give his [or her] reasons for his [or her] finding”: Soulemezis at 281; see also Li v Attorney General for New South Wales [2019] NSWCA 95 at [75] and [107].

In Soulemezis at 279, McHugh JA (as he then was) articulated three purposes underlying the duty to give reasons for judicial reasons:

A fourth consideration emerges from this Court’s decision in Pettitt at 382 where Asprey JA said:

The present case is a fortiori one where it was necessary to give reasons why one witness’ evidence was preferred to that of another: see Palmer v Clarke (1989) 19 NSWLR 158 at 170; see also Toll Pty Ltd v Harradine [2016] NSWCA 374 at [70].

The absence of reasoning to support the primary judge’s finding that Constable Marsman engaged in a second check-drill manoeuvre, and his Honour’s failure to alert the parties to the fact that he was contemplating making a finding which was different from the plaintiff’s case as pleaded and the evidence of the respondent, had forensic ramifications for both parties.

Those ramifications for the appellant were obvious. What the primary judge found was quite a different case to that pleaded which was to the effect that “a member of the police force, without lawful justification, shoulder charged and/or tackled the [respondent]” and “then proceeded to strike the [respondent] on several occasions causing [him] to sustain injury, loss and damage.” The appellant was not on notice that the allegation was of a second and unreasonable check-drill manoeuvre. Procedural fairness was thereby denied to both parties. Constable Marsman was not given the opportunity to address by evidence and submissions an allegation that he engaged in a second check-drill manoeuvre. And the respondent was not given the opportunity to address a case that he did not put and which was not supported by the evidence: see State of New South Wales v Hunt (2014) 86 NSWLR 226 at [44]; [2014] NSWCA 47.

The appellant also challenged the primary judge’s finding at [213] of the judgment which was as follows:

In light of the conclusions we have reached as to the inadequacy of the reasoning on what we have described as “the critical issue”, it is not necessary to deal with the separate challenge to the primary judge’s finding that excessive force was used on the second occasion.

It suffices for present purposes to observe that, as was essentially accepted on behalf of the appellant, had the respondent’s account of what had transpired been accepted, no defence of necessary reasonable force would have been available or, alternatively, it would have been far more difficult to make out. Thus, a reasoned finding as to what transpired on the night in question had important ramifications for any assessment as to whether or not there was an absence of reasonable force.

For these reasons, subject to the notice of contention, the appeal must be allowed and a new trial ordered.

It remains to be considered whether or not the matter raised by way of notice of contention alters any of the foregoing analysis.

The notice of contention is in the following terms:

The hospital notes referred to in the notice of contention recorded that:

The passage from the transcript referred to in the notice of contention was as follows:

In our opinion, it is not possible for this Court to make the findings sought by the notice of contention in reliance on the hospital notes and the passage of transcript extracted above.

What is sought to be established would necessarily involve a review of all of the evidence, including the evidence of the respondent and Constable Marsman. It may well be that on any retrial, in a holistic review of the evidence, the hospital notes will assume particular significance, but in circumstances where there is a radical dispute between the respondent’s account including as to kneeing (which was implicitly at least rejected by the primary judge) and Constable Marsman’s account which is to the effect that there was only one fall to the ground which involved a single check-drill, this Court in an appeal by way of rehearing is not in a position to resolve these differences which raise questions of credit.

Further, if the respondent only fell to the ground on one occasion, the respondent would need to confront the primary judge’s finding that that occurred as the result of Constable Marsman’s use of reasonably necessary force.

For these reasons, the notice of contention should be dismissed.

The appeal should be allowed with costs (with the respondent to be entitled to a certificate under the Suitors’ Fund Act 1951 (NSW)), the judgment of the primary judge set aside and a new trial ordered. The costs of the trial at first instance should be costs in the retrial. A similar order was made in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (Waterways).

In proposing these findings, we note the appellant’s submission that there should be no retrial, the outcome of his Honour’s reasons being that he did not accept the respondent’s case.

However, just as the primary judge did not articulate any reasons for rejecting Constable Marsman’s account, he also gave no reasons for rejecting the respondent’s account. On any view, the respondent was badly injured as a result of his interaction with the Constable. So much is not gainsaid by the appellant. The respondent is entitled to have his case determined in a trial where neither party has been denied procedural fairness.

In expressing this view, we note that neither party submitted that any retrial should be on the basis of any findings made by the primary judge other than those challenged on appeal. In Waterways at [17], Gleeson CJ said that “[c]onducting a new trial on the basis of a certain view of the primary facts is not impossible”. He held, however, that it was not desirable on the facts of that case. We are inclined to think that it would be similarly undesirable in the circumstances of the present case where there is such a difference in the accounts of the parties and their respective witnesses.