John Edward Thornton v State of New South Wales

MEAGHER JA:

1. [1]

   On 4 December 2010, the appellant (Mr Thornton) and another man (Mr Roby) were arrested by police because of their suspected involvement in drug operations. Significant force was used in Mr Thornton’s arrest and he suffered injuries, the causation and seriousness of which were subsequently disputed. He brought proceedings for damages against the State for assault and battery and alleged that his arrest was wrongful. The State maintained that the arrest was lawful and that the officers did not use any more force than was reasonably necessary in order to effect it. The primary judge (P Taylor SC DCJ) dismissed Mr Thornton’s claims: Thornton v State of New South Wales (No 4) [2016] NSWDC 198. This appeal is from that order.

2. [2]

   It was accepted that the police had reasonable grounds for suspecting that Mr Thornton and Mr Roby had committed drug-related offences. The first matter in issue was whether before or at the time they arrested Mr Thornton the relevant officers complied with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), s 201, which included (as at 4 December 2010):

3. [3]

   The powers in sub-s (3) include to arrest, stop, detain and give a direction to a person: s 201(3)(a), (f), (i).

4. [4]

   The second principal matter in issue was whether the police used excessive force in making the arrest. Relying upon LEPRA, ss 230 and 231, the State maintained that Mr Thornton did not comply with the officers’ initial directions and then violently resisted their attempts to arrest and handcuff him.

5. [5]

   The arrest was made in a clearing surrounded by bushland at Fullerton Cove, near Newcastle. Four officers were involved. They were Brad Smith, Dale Woods, Emilie Deacon and Andrew Wheatley, who had followed Mr Roby to that place in two vehicles.

6. [6]

   The primary judge at Judgment [2]–[3] described the liability issues between the parties:

7. [7]

   The resolution of these issues turned on whether the primary judge accepted Mr Thornton’s version of events. His Honour did not do so, concluding at Judgment [37] and [38]:

8. [8]

   Reasoning as follows, the primary judge concluded that the police officers had complied with LEPRA, s 201. Before the arrest, Officer Smith had communicated that he was police officer and directed Mr Thornton to get onto the ground and provide his hands. Officer Deacon had also displayed her badge. It was not reasonably practicable for Officer Smith to disclose his name, place of duty and the reason for the arrest before Mr Thornton was handcuffed. And it was not disputed that those details were provided by Officer Wheatley immediately after the arrest: Judgment [41], [44]–[47]. Accordingly, there was a lawful exercise of the powers of arrest and to give directions. Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 and State of New South Wales v McCarthy [2015] NSWCA 153 provide recent examples of cases in which there was held to be a lawful exercise of power notwithstanding that the information required by s 201 had not been provided before or at the time of exercising the power.

9. [9]

   His Honour also concluded that, in the face of Mr Thornton’s “resisting directions and arrest, [and] fighting and struggling”, the police were entitled to use force to subdue him, including by knee strikes and punches, so as to effect the arrest and prevent his escape: Judgment [48].

10. [10]

    Notwithstanding his rejection of Mr Thornton’s claim, the primary judge proceeded to assess damages. At the time of the alleged assault, Mr Thornton had a history of gastrointestinal disorders, including the presence of duodenal ulcers. He had also injured his back in a fall two or so days earlier. The injuries for which he claimed were fractures to the fifth to eighth ribs on his right side; fracture injuries to his lower back (specifically, fractures to the L1 spinous process and to the right L1, L2 and L3 and left L2 transverse processes); a comminuted fracture of the nasal bone; and superficial cuts and abrasions to the forehead and abdomen. The following injuries were claimed as diagnosed or suffered after 4 December 2010. On 6 December, Mr Thornton was admitted to the intensive care unit for ventilatory support following respiratory failure secondary to a combination of rib fractures and pre-existing chronic obstructive pulmonary disease. On 7 December, an operation was performed to repair a ruptured duodenal ulcer. On 8 December, post-operative sepsis or blood infection was diagnosed. And, on 29 December, a CT scan showed a defect in the anterior abdominal wall with herniation of the bowel, consistent with a wound rupture of the earlier surgical site.

11. [11]

    The primary judge described Mr Thornton’s most significant injury as his “abdominal disfigurement and disability resulting from a ruptured duodenal ulcer”: Judgment [51]. His Honour found that knee strikes to his abdomen and weight on his torso could have caused the rupture of an existing duodenal ulcer and concluded that the events of his arrest materially contributed to the severe disfigurement from which Mr Thornton now suffers: Judgment [51]–[55]. He assessed general damages for those injuries and their psychological consequences at $200,000 and allowed $10,000 for future out-of-pocket expenses. His Honour rejected Mr Thornton’s claims for past and future care.

12. [12]

    By his Amended Notice of Appeal (containing 14 grounds), Mr Thornton challenges the primary judge’s finding on liability and seeks an order that the proceeding be remitted to the District Court for a reassessment of damages. In the alternative, he seeks an order that the proceeding be remitted to the District Court for a new trial on liability and damages. Grounds 12 and 14, which are directed to his Honour’s assessment of damages, are not pressed. The State cross-appeals against that assessment, principally on the ground that the primary judge erred in finding that any unlawful conduct of the police officers caused or materially contributed to the severe disfigurement (which was found to be due to the ruptured duodenal ulcer and subsequent complications).

13. [13]

    The principal grounds of appeal assert error in preferring the evidence of Officers Smith, Deacon and Wheatley to that of Mr Thornton (ground 11), and in failing to provide adequate reasons (ground 13). It is said that the reasons of the primary judge did not address important submissions made as to the implausibility of two aspects of Officer Smith’s evidence; that this constituted a failure to explain adequately why his evidence was to be preferred over that of Mr Thornton; and that the 10 month period between the end of the hearing and the delivery of his Honour’s judgment heightened the trial judge’s duty to explain clearly why the evidence of the officers was to be preferred over that of Mr Thornton. In support of these grounds, it is also said that his Honour’s reasons fail to address a submission of Mr Thornton’s counsel that the source of a reference in the medical records (Judgment [30]) to resisting arrest was the police, and not Mr Thornton.

14. [14]

    The remaining grounds address the two liability issues identified by the primary judge and extracted at [6] above. In relation to the first, it is said that the primary judge erred in finding: that Officer Smith and the other officers identified themselves as police (grounds 3 and 5); that it was not practicable for Officer Smith and the other officers to disclose the reason for the arrest before exercising that power (grounds 7 and 8); and that there was compliance with s 201 with the result that the arrest was lawful (grounds 6 and 9). As to the second, the primary judge is said to have erred in finding: that Mr Thornton was resisting arrest (grounds 1 and 2); that Mr Thornton was not kicked by the officers (ground 4); and that the officers did not use more force than was reasonably necessary (ground 10).

15. [15]

    In order to deal with the argument in support of these grounds, it is necessary to summarise the competing evidence given by Mr Thornton on one hand and Officers Smith, Deacon and Wheatley on the other. (Officer Woods did not give evidence in the proceeding below.) It is then necessary to consider his Honour’s reasons given for making the findings at Judgment [37] and [38], which are extracted in [7] above.

16. [16]

    The competing accounts of those witnesses are summarised at Judgment [13]–[27]. It is necessary to set that summary out in full in order to give an understanding of the fundamental differences between Mr Thornton’s account and the accounts of those officers:

17. [17]

    Before extracting the primary judge’s reasons for preferring the officers’ evidence, four matters should be noted. First, there was medical evidence explaining the absence of any evidence from Officer Woods. Secondly, the statements signed by Officers Deacon and Wheatley, within a day or so of the incident, were not tendered in evidence. However, it is apparent from the transcript that Mr Thornton’s counsel had copies of those statements by the time those witnesses were cross-examined and did not suggest that the accounts they gave were in any material respects inconsistent with their statements. Thirdly, Officer Deacon’s evidence was that at the time she arrived Mr Roby was on the ground face down. She could not say what happened to him after she then moved to where Mr Thornton was on the ground. The transcript indicates that Mr Roby was present in court on several days during the first week of the trial. Although counsel for Mr Thornton announced on the first day that she had decided to call him to give evidence, she did not do so and the State made a Jones v Dunkel (1959) 101 CLR 298 submission.

18. [18]

    The primary judge’s reasons for preferring the version of events given by the police officers are at Judgment [30]–[36]. They include the following:

19. [19]

    Mr Thornton’s counsel submitted to the primary judge that Officer Smith was not a reliable and credible witness, in part because of the alleged implausibility of two aspects of his evidence. The first was his evidence of believing that Mr Thornton was reaching for a firearm secreted down the front of his pants when he re-holstered his own firearm and moved in to tackle Mr Thornton. In cross-examination, it was put that this evidence was “completely untrue”, the suggestion being that an officer in those circumstances would not have put his or her firearm away, but rather would have kept it trained on the person sought to be arrested. The second was Officer Smith’s evidence that, upon arriving at the scene and stepping out of the vehicle driven by Officer Woods, he saw Mr Roby reach for what he believed to be a firearm in the back of his vehicle, drew his own firearm, and then ran in the direction of Mr Thornton in order to apprehend him. It was similarly put in cross-examination that this evidence was “completely unbelievable”.

20. [20]

    It is contended that much of the case at trial turned on the competing evidence of Mr Thornton and Officer Smith, particularly in relation to the “critical initial stages of the chain of events”, which are said to have occurred before Officer Deacon arrived at the scene. It is submitted that the primary judge’s omission to address this submission demonstrates a failure on his part “to adequately explain why the evidence of Officer Smith was to be preferred over the evidence” of Mr Thornton: Appellant’s Amended Written Submissions, [35]. It is suggested that the delay before judgment may explain why the trial judge gave insufficient consideration to the arguments made.

21. [21]

    Regardless of any implausibility of aspects of Officer’s Smith’s evidence (a subject considered at [33]ff below), this argument proceeds from a wrong premise and must be rejected. Acceptance of Mr Thornton’s case did not turn on whether his evidence of the initial confrontation with Officer Smith was preferred to that of Officer Smith.

22. [22]

    The factual issues which the primary judge had to determine concerned the whole of the events leading to Mr Thornton’s arrest and handcuffing. His case was that he was pushed to the ground and kicked by one person and then by others; that none of those who were kicking him announced that they were police officers; that he believed that he was being robbed; and that he did not violently resist being detained.

23. [23]

    Officer Smith’s evidence was that he first identified himself as “police” and directed Mr Thornton to “get on the ground”. Officer Deacon said she heard Officer Smith yell to that effect. She also identified herself as a police officer and produced her badge. She said Officer Smith then moved forward and “wrapped up” Mr Thornton, who was on the ground. Officer Smith’s evidence was that, as Mr Thornton was on the ground “kicking with his legs”, he “tackled him to pin him to the ground”. Thereafter, Officer Deacon’s evidence was generally consistent with that of Officers Smith and Wheatley that Mr Thornton had “resisted arrest by not submitting, by screaming that he was not going back to jail, by not relinquishing his arms and by kicking out”: Judgment [35].

24. [24]

    There remained a short period before Officer Deacon first saw Officer Smith in which it was possible that he may have kicked Mr Thornton. However, from that point, Officer Deacon’s evidence was substantially inconsistent with that of Mr Thornton. On her evidence, he was told that those giving him directions were police officers and could not have believed he was being robbed. And neither she nor Officer Smith kicked or continued to kick Mr Thornton while he was on the ground. Acceptance of Officer Deacon’s evidence required the rejection of the whole of Mr Thornton’s account.

25. [25]

    Faced with the task of deciding whether to accept Mr Thornton’s version of events, the significance of the implausibility of the two aspects of Officer Smith’s evidence referred to is not obvious. As to the second, it was not controversial that Officer Smith had turned his attention to Mr Thornton, rather than Mr Roby. And concerning the first, Officer Deacon’s evidence was that, when she first saw Officer Smith, he was standing about a metre from the end of Mr Thornton’s feet and after a short time “wrapped [Mr Thornton] up”, a description not markedly different from that of Officer Smith of having tackled him while on the ground. None of this was consistent with a version of events which had Mr Thornton being kicked whilst on the ground, first by Officer Smith and then by Officer Deacon. And there was no objective evidence (other than that rejected by the primary judge at Judgment [38] and not pressed on appeal as wrongly rejected) corroborating Mr Thornton’s evidence that he had been kicked, rather than jumped on and kneed.

26. [26]

    In the end, the primary judge had to decide whether he should accept Mr Thornton’s evidence in the face of the contrary evidence of Officer Smith and the other officers. There was always the risk that Officers Deacon and Wheatley might have fabricated their evidence to protect Officer Smith and themselves. However, the primary judge described them as “credible and persuasive” witnesses. That finding is not challenged and it is not suggested that their evidence was “glaringly improbable” or inconsistent with any “incontrovertible” facts: cf Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. For example, there was no medical evidence that the injuries sustained by Mr Thornton could only have been caused in the manner he described. And Mr Roby was not called to give evidence of what he saw and heard, although he was apparently prepared to do so.

27. [27]

    The present case is not one in which “the trial judge has not given specific and satisfactory reasons in relation to accepting or rejecting evidence” which was of importance, and any delay in the giving of judgment could not alter that conclusion: see Monie v Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25 at [43] (Hunt AJA, Bryson JA agreeing); Krivoshev v Royal Society for the Prevention of Cruelty to Animals [2005] NSWCA 76 at [119]–[124] (Giles JA).

28. [28]

    As to the remaining argument in relation to ground 13, at Judgment [30], the primary judge records that the triage notes of Mr Thornton’s admission at Hunter Hospital Emergency “repeatedly refer to resisting arrest and, alike with the ambulance report, make no reference to a belief about being robbed”. It is submitted that this observation does not take account of Mr Thornton’s submission that an earlier reference in those notes to the patient having “allegedly resisted arrest” is to be read as indicating that the later reference should not be taken as recording a statement made or information provided by him, as distinct from the police. In my view, this submission misunderstands what the primary judge was seeking to emphasise by this observation, which was the absence of any reference in those notes, whether sourced to the police or to Mr Thornton, to his having believed that he was being robbed. In that context, there was no reason for the primary judge to mention and deal with the submission referred to.

29. [29]

    It follows that grounds 11 and 13 are not made out. The primary judge was entitled to prefer the evidence of the police officers and he gave adequate reasons for having done so.

30. [30]

    Grounds 3 and 5 challenge the findings that Officers Smith and Deacon identified themselves at the outset as police officers. That was their evidence, and the primary judge’s acceptance of it has not been shown to involve error. No other argument is made in support of these grounds, which are rejected.

31. [31]

    Grounds 6, 7, 8 and 9 challenge the finding that it was not practicable for Officer Smith to comply with LEPRA, s 201(1) before Mr Thornton was eventually subdued and handcuffed. It was accepted that Officer Wheatley provided the required information shortly after that occurred.

32. [32]

    At Judgment [45], the primary judge found:

33. [33]

    It is common ground that Officer Smith was justified in believing at the outset that Mr Thornton may have been armed. Surveillance information available before the arrest included that Mr Roby had made attempts to obtain a firearm. In this context, it is contended, as mentioned earlier, that the primary judge erred in not rejecting Officer Smith’s evidence that he believed Mr Thornton might have had a firearm in his pants because had he held such a belief he would not have acted as he did.

34. [34]

    In cross-examination, Officer Smith rejected the last suggestion:

35. [35]

    Implicit in that answer is the officer’s assessment that by pinning Mr Thornton down he could prevent his being able to “pull out” any firearm. That was an assessment open to the officer in the heat of the moment: Woodley v Boyd [2001] NSWCA 35 at [37] (Heydon JA, Davies and Foster AJJA agreeing). And the primary judge is not shown to have erred in accepting his evidence in that respect.

36. [36]

    The other challenge to his Honour’s conclusion in relation to the officers’ compliance with LEPRA contends that Officer Smith had “ample opportunity” to convey the required details to Mr Thornton when he first arrived at the scene and was walking towards him. However, his Honour’s analysis explains why it was not practicable to do so at that time. Officer Smith identified himself as a police officer and directed Mr Thornton to get on the ground. Mr Thornton was thought to possess a weapon and did not comply with that direction. The officer was justified in first seeking to detain Mr Thornton, whilst at the same time seeking to ensure his own safety and that of the other officers. Whilst on the ground, Mr Thornton was struggling, kicking and wrestling. Until he was handcuffed, there was no reasonable opportunity to talk to him and convey the required information.

37. [37]

    Grounds 6, 7, 8 and 9 are not made out.

38. [38]

    These grounds challenge the findings: that Mr Thornton resisted arrest; that he was not kicked by the officers; and that they did not use excessive force in arresting him. The first two of these findings depend on his Honour’s acceptance of the evidence of the officers, and the rejection of the grounds directed to that question also means that grounds 1, 2 and 4 must be dismissed. The remaining ground is directed to his Honour’s assessment at Judgment [48] that no more than reasonable force was used. That conclusion is only challenged on the basis that “the police narrative is incorrect”. As that premise is not made out, ground 10 also must be dismissed.

39. [39]

    The appeal from his Honour’s conclusion that the State is not liable for any injuries resulting from Mr Thornton’s arrest should be dismissed. That makes it unnecessary to consider the State’s cross-appeal in relation to the assessment of damages. That cross-appeal assumes that Mr Thornton’s appeal is successful and challenges the findings, implicit in his Honour’s damages assessment, that “either gratuitous kicking and punching or alternatively more than reasonable force in arrest” caused or contributed to the injuries complained of by the appellant. As the primary judge has not made findings as to either of those scenarios, each of which proceeds from an acceptance of Mr Thornton’s version of events, this Court would first need to do so to determine the causation issue raised by the cross-claim. In my view, this Court cannot adequately address that preliminary subject in the absence of submissions from Mr Thornton. Those submissions were invited but not forthcoming. Accordingly, this is an appeal in which this Court should not deal with the grounds raised by the cross-appeal: cf Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

40. [40]

    The orders I propose are:

    1. (1)

       Appeal dismissed.

    2. (2)

       Appellant pay respondent’s costs of the appeal.

41. [41]

    GLEESON JA: I agree with Meagher JA.

42. [42]

    FAGAN JA: I agree with Meagher JA.