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Case Summary

District Court New South Wales

Medium Neutral Citation :    Attalla v State of NSW [2018] NSWDC 190

Hearing dates :     26, 27, 28 February; 1, 2, 23 March; 17 May 2018

Date of orders :     29 May 2018

Decision date :     29 May 2018

Jurisdiction :     Civil

Before :     P Taylor SC DCJ

Decision:

  • Judgment for the plaintiff in the sum of $112,387.67.
  • Defendant to pay the plaintiff's costs.
  • Liberty to either party to make application to amend order (2), including to seek a special costs order, by notification by email to my associate within 14 days.

Catchwords:

TORTS – intentional tort - wrongful arrest – false imprisonment – assault and battery – strip search - police – reasonable grounds for suspicion – aggravated damages – exemplary damages

Legislation Cited:

Law Enforcement (Powers and Responsibilities) Act 2002, s 21, s 24, s 31, s 32, s 99, s 230

Cases Cited:

Adams v Kennedy (2000) 49 NSWLR 7

Coote v Kelly; Northam v Kelly [2016] NSWSC 1447

Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731

Goldie v Commonwealth of Australia (No 2) [2004] FCA 156

Gray v Motor Accidents Commission (Gray v MAC) (1998) 196 CLR 1; [1998] HCA 70

Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 666; [1991] HCA 3

Moses v State of New South Wales (No. 3) [2010] NSWDC 243

New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57

New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276

New South Wales v Zreika [2012] NSWCA 37

Ruddock v Taylor (2003) 58 NSWLR 269

Shalhoub v State of New South Wales [2017] NSWDC 363

State of New South v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208

State of New South Wales v Bouffler [2017] NSWCA 185

State of NSW v Abed [2014] NSWCA 419

State of NSW v Smith [2017] NSWCA 194

Streat v Bauer (Supreme Court (NSW), Smart J, 16 March 1998, unreported)

Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498

Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40

Walter Vignoli v Sydney Harbour Casino [1999] NSWSC 1113

Watson v Foxman (1995) 49 NSWLR 315

Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33

Texts Cited:

Fleming J, The Law of Torts, 8th ed, LBC (1992)

Trindade and Cane, The Law of Torts in Australia, 3rd Edition, OUP (1999)

Category :     Principal judgment

Parties:

Steven Attalla (plaintiff)

State of NSW (defendant)

Representation:

Counsel:

Mr D Toomey SC and Mr D Woodbury/Mr J Masur (plaintiff)

Ms G F Mahony (defendant)

Solicitors:

Paramount Compensation Lawyers (plaintiff)

Makinson d’Apice Lawyers (defendant)

File Number(s) :     2017/115668

Publication restriction :     None

Judgment

A. Introduction

  1. Steven Attalla was in 2015 a 53-year-old man with no relevant criminal record.

  2. On Tuesday, 24 March 2015 at about 3.30am, Mr Attalla was sitting on a stone wall in front of a church in Bourke Street, Darlinghurst, texting on his mobile phone when he was confronted by three police officers, [1] Senior Constable Courtney Cruickshank, Senior Constable Adrienne Leech, and Probationary Constable Stephen Findlay, who was there as an observer. [2] After a short conversation, Officer Cruickshank announced that she reasonably suspected Mr Attalla of being in possession of prohibited drugs and proposed that he be searched.

  3. When Mr Attalla refused to submit, Officer Cruickshank told Mr Attalla that he was under arrest for hindering police in the execution of their duty. As she laid hands on him, another police vehicle arrived. Senior Constable Andrew Price alighted from that vehicle and as Officer Cruickshank withdrew to speak to other officers in that vehicle, Officer Price imposed a wrist lock on Mr Attalla, handcuffed him and conducted a search. No drugs were found.

  4. Officer Cruickshank then directed Mr Attalla to get into the rear cage of a police wagon and he was taken to Kings Cross Police Station. He was there subjected by two male police officers, at the direction of Officer Cruickshank, to a "strip search", which involved him, at the command of the two police officers; removing his pants and underpants; lifting his genitalia to allow inspection of the area underneath; and squatting while thus naked.

  5. Mr Attalla was thereafter given a Court Attendance Notice for hindering police in the execution of their duty, and allowed to leave the police station. The court proceedings were ultimately dismissed.

  6. Mr Attalla sued the State of New South Wales for wrongful arrest, and assault and battery by the police officers.

B. Issues

  1. Shortly prior to the trial, the State conceded that the strip search was unlawful. In the course of the trial, the State also conceded that the continued detention of Mr Attalla, after he was subjected to a search by Officer Price, was unlawful. Thus, the State conceded that it was not entitled to continue the arrest of Mr Attalla after the initial search, and to take him back to the police station. The issues thus are as follows:

  1. Did Officer Cruickshank, prior to her announcement of a proposed search, suspect on reasonable grounds that Mr Attalla was in possession of a prohibited drug, and was thereby entitled to search Mr Attalla.

  2. Did Officer Cruickshank suspect on reasonable grounds that Mr Attalla had hindered police in the execution of their duty to conduct the search.

  3. Was Officer Cruickshank satisfied that Mr Attalla's arrest was reasonably necessary to prevent a continuation of the offence of hindering.

  4. Was Officer Price lawfully justified in applying a wrist lock, handcuffing and conducting a search of Mr Attalla.

  5. What is the appropriate level of damages, including any aggravated or exemplary damages.

  1. It can be seen that the lawfulness of the initial search is pivotal to several aspects of the claim. The power ultimately relied upon by the State for Officer Cruickshank to conduct a search is found in the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”) at s 21. That section relevantly provides:

21 Power to search persons and seize and detain things without warrant

(1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:

(a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,

(d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.

  1. Thus, the lawfulness of the search proposed by Officer Cruickshank under the provision depended upon her suspecting on reasonable grounds that Mr Attalla possessed a prohibited drug. Of these two elements, the subjective suspicion and the objective reasonable grounds, only the latter was in issue. Mr Attalla did not submit that Officer Cruickshank lacked a suspicion of the type alleged.

  2. The grounds relied on by the State to justify the proposed search, and which were submitted to constitute the reasonable grounds for Officer Cruickshank suspecting Mr Attalla to be in possession of a prohibited drug, comprised: the place, time and date where and when Mr Attalla was sitting; Mr Attalla's visual focus on the police, and in particular Officer Cruickshank; Mr Attalla's answers to the preliminary questions asked of him; and his change in demeanour, becoming more aggressive during the conversation.

C. The evidence of the encounter

  1. Mr Attalla recounted that in the evening of Monday, 23 March 2015, after spending time with his solicitor at The Rocks in Circular Quay and meeting another acquaintance at the Quay, he walked to Woolloomooloo to have a coffee and sit at Finger Wharf. [3] He was unable to obtain the coffee. He thought he would go to a pub in William Street, and commenced to walk up Bourke Street. [4] When he arrived at the corner of William and Bourke Street, he realised it was after the 1.30am lock‑out time, so he would be unable to enter the pub. [5] He walked across William Street and purchased a pack of cigarettes at a 24-hour convenience store at the corner of Bourke and William Streets. He then walked about 40 metres up Bourke Street, sat on a stone ledge in front of the church and commenced responding on his mobile phone to a text he had received from one of the friends he had been with earlier in the evening. [6] He was wearing a watch, blue jeans, a blue t‑shirt, brown leather shoes and a chequered blue sports jacket. [7] Mr Attalla did not appear to be challenged about any of this evidence. By that stage the time had reached about 3.30am.

  2. There were three street lights [8] within close proximity of where Mr Attalla was sitting, which shed sufficient light to enable him to be viewed from at least 50 metres. [9]

  3. Meanwhile, Officers Cruickshank, Leech, and Findlay were in a police vehicle proceeding north down Bourke Street towards William Street. Officer Cruickshank was driving, it appears, [10] and Officer Leech was in the backseat. Officer Findlay noticed Mr Attalla from 50 metres away, Officer Cruickshank from 15 metres. She turned the car to the right into St Peters Street and parked.

  4. Mr Attalla watched the police vehicle and its occupants as the car stopped a few metres short of where he was sitting. At this stage, Officer Cruickshank said she "started to form some reasonable suspicion" [11] of Mr Attalla. The officers got out of the car and walked towards Mr Attalla. Officer Cruickshank's account of the ensuing conversation was as follows: [12]

“A…I said, ‘Hey, mate, I'm Senior Constable Cruikshank from Kings Cross Police. What are you up to?’

In response he said, ‘Nothing, I'm just having a rest,’ and I said, ‘Where have you been?’

…and he said, ‘Just up at the Cross,’ and I said, ‘Where are you off to?’ and he said, ‘I'm just going home,’ and I said, ‘Where's home?’ and he said, ‘The Rocks,’ and I said, ‘Why are you up here if you're walking from Kings Cross to The Rocks. It's the totally wrong direction.’

…He said, ‘I haven't done anything wrong. I'm calling my lawyer. You have no jurisdiction to do this.’

I said, ‘Mate, this doesn’t really make sense to me. It’s nearly 4 o’clock in the morning and you’re up here by yourself, having walked in the wrong direction to get from Kings Cross to The Rocks.

A. He then said I think, ‘I haven’t done anything wrong. I’m calling my lawyer. You can’t do this.’

Q. Did you respond at all to that comment of Mr Attalla’s?

A. I did. I said, ‘Now that you’re getting aggressive about it, it’s raising my suspicions even more that something’s not right here and I’ll let you know that I believe you may be in the possession of prohibited drugs and I’m going to submit you to a search.’

Q. At that point in time did Mr Attalla say anything to you?

A. He did. He stood up off the wall and stepped in towards me and was waving his right finger in my face and said, again words to the effect of, ‘You can’t do this. I’m calling my barrister. You’re not searching me. I haven’t done anything wrong.’

  1. Officer Findlay described the encounter somewhat differently. He said: Officer Cruickshank asked: “Hey mate, what are you doing here?

Q. Do you recall a response to that by Mr Attalla?

A. He said that he'd been walking home, he'd been up at the Cross. Senior Constable Cruikshank asked where his home was, and he said that it was at The Rocks. At this point Senior Constable Cruikshank asked if he was walking from the Cross to The Rocks, why was he up this direction, and he said he was just sitting having a rest.

Q. What did you hear or see occur between those two people?

A. I’m trying to think if there was any further conversation, but I think it was at that point that Senior Constable Cruikshank said that the story didn't make much sense to her, that she believed him to be in possession of drugs and was going to search him. [13]

Q. [W]hat was his demeanour like up to the point that Senior Constable Cruikshank said to him the story didn't make much sense, believed him to be in possession of drugs and was going to search him?

A. Up until that point it was, wasn't aggressive. He'd been answering question up until that point, compliant, I would say.

Q. Following Senior Constable Cruikshank saying those words, did his demeanour change at all?

A. Yes, it did.

Q. In what way did it change?

A. So at that point he stood up. His tone has become harder, more aggressive and he said, ‘You're not searching me. You have no right to. You need a warrant,’ and he was going to call his lawyer. [14]

  1. Mr Attalla gave his account as follows: [15]

A. They proceeded to - Cruikshank did most of the talking at that time. She walked over to me and said, ‘What are you doing here?’ And my reply was, ‘I’m just sitting, having a cigarette, texting and minding my own business.

…She said, ‘Where do you live?’ And I told her Harrington Street at The Rocks. And she asked my name and I gave it to her, and she said, ‘Oh, you’re a long way from The Rocks,’ and I said to her, ‘Well, I live in the city, so I don’t see it as a long way.’ And she said, ‘Where have you been tonight?’ And I replied, I said, ‘I was at Ship Inn Hotel before I got here.’ And she said to me, ‘Have you been drinking?’ And I said to her, ‘I’ve had a few beers with a friend of mine. And she said - well, she kept repeating that I was in the wrong direction of my - of where I reside and I said to her, ‘Well, it’s - it’s not a really a crime to be sitting. I live in the city and I live in the vicinity of the city, so to me, it was quite odd that she was asking that question repeatedly.

...And then she said she wanted to conduct a strip search. And I said--

…‘Why would you want to do that? I’ve done nothing wrong, I’m sitting here, minding my own business. Am I a person of interest? You have no right and no jurisdiction to ask that of me. And she became--

…quite aggravated and annoyed at my reply.

…She kept repeating the - the - she said, Well, we’re - we’re allowed to conduct a - a search whenever we feel like, how we feel it and when we feel like it. We have the right to do that.’ And I said, ‘No, you don’t have the right to do that, because I haven’t done anything wrong. Please tell me what I’ve done wrong.’ And she said, ‘We don’t have to give you that answer. We don’t have to tell you anything and we don’t have to have any reason.

Q. What happened then?

A. I refused to do so.

A. I kept sitting on the ledge. I didn’t - I didn’t stand up.

Q. You had remained seated throughout this conversation?

A. Yes, I did.

  1. Mr Attalla accepted that Officer Cruickshank may have given her name and station and said, "I believe you may be in possession of prohibited drugs and I'm going to submit you to a search". [16] He also accepted that Officer Cruickshank may have said:

Mate, this really doesn’t make sense to me. It just doesn’t seem right. It’s almost 4 o’clock in the morning and you’re sitting up here in the dark by yourself, having walked in completely the wrong direction to get from Kings Cross to The Rocks? [17]

  1. Mr Attalla accepted that Officer Cruickshank said, "I don't need a warrant to search you," [18] but denied that she said, "I just need reasonable suspicion to search you", [19] or that she said, "I will also just let you know that a failure to comply with a search and you will be committing an offence" [20] or that she said, "I'll let you know that hindering police and refusing a search is an offence." [21] However, in his evidence, Mr Attalla subsequently conceded that Officer Cruikshank may have said, "This is your last warning. Failing to comply with a search and you are committing an offence" [22] and that he was told he was under arrest. [23] He said that Officer Cruikshank referred to a strip search, and that it was her who first became aggressive and annoyed.

  2. No statements of Officers Cruikshank and Findlay were in evidence. Officer Findlay gave evidence that he made a statement 52 days after the event, having refreshed his memory from the charge sheet and Officer Cruikshank's statement. He accepted that it was part of his training that he ought never to interview witnesses together because of the possibility of collusion and contamination. Yet he asked to see Officer Cruikshank's statement and she provided it to him. He accepted that in his statement, and Officer Cruikshank's, the conversations were identical, but denied that he simply copied her statement.

  3. Officer Cruikshank accepted that the facts sheet was her statement "in a different form", and that an officer who is asked to make a statement would look at the facts sheet, "A hundred percent. I don't think a police officer would ever create a statement without refreshing their memory from the fact sheet…you would always read the fact sheet". [24]

D. Analysis

  1. The circumstance of Officer Findlay using the statement of Officer Cruikshank to prepare his statement is a matter that casts doubt upon his account. Her willingness to provide her statement, notwithstanding that she was an experienced police officer, indicates an improper practice that is of concern. Whilst in Officer Cruikshank's experience this practice of police officers exchanging statements may be common, it nevertheless creates the same problems of contamination of evidence as witnesses being interviewed together, as it involves one witness using another's recollection. This potential collusion of witnesses or contamination of evidence has been repeatedly described as improper. [25] It is a matter that impacts adversely on the credit of the police evidence.

  2. Recollection of the precise words of conversations is difficult, even in the immediate aftermath of an interaction. The accuracy of the recollection is not improved by the passage of time. [26] It is unlikely that any of the accounts are entirely accurate.

  3. Officer Leech was not called. I was informed, without evidence, that she was no longer in the police force and had moved interstate. Without evidence, I did not regard this as a satisfactory explanation for her absence.

  4. Officer Leech’s absence means that there was no evidence supporting Officer Cruikshank's evidence of a change in demeanour in Mr Attalla before Officer Cruikshank stated that she had formed the suspicion that he possessed prohibited drugs and proposed to search him. Officer Leech's absence enlivens the possibility of a Jones v Dunkel inference. I find that I am entitled to infer that Officer Leech's evidence would not have assisted the police.

  5. Even without this inference I would have preferred the evidence of Mr Attalla and Officer Findlay. The evidence of both Officer Findlay and Mr Attalla was that Mr Attalla became more aggressive after he was told he must submit to a search. I accept this evidence. It seems unlikely that Mr Attalla would refer to contacting his lawyer merely when his account was questioned, and more likely would do so when he was required to submit to a search. It follows that I do not accept the evidence of Officer Cruikshank that Mr Attalla stated, "I haven't done anything wrong, I'm calling my lawyer. You have no jurisdiction to do this" [27] in response to Officer Cruikshank saying his journey home, "It’s the totally wrong direction". Mr Attalla was not likely to say, "You have no jurisdiction to do this", when nothing is being done or directed other than questions being asked.

  6. Officer Cruikshank's account that Mr Attalla remained seated until she told him that she believed he was in possession of drugs, and said she would submit him to a search also tends to support a conclusion that the direction that he submit to a search was the occasion when he became more assertive in resisting the police's demands.

E. Reasonable grounds for suspicion of possession of prohibited drugs

  1. I referred earlier to the matters that the State asserts constituted reasonable grounds for the suspicion of Officer Cruikshank. As to the place, date and time, Officer Cruikshank gave evidence that Darlinghurst, in general, and Bourke Street, in particular, were, "very well known…particularly well known for prostitution, solicitation, street offences, drug crime". [28]

"Bourke Street generally, but that corner [of Bourke Street and William Street where the convenience store is located] in particular is probably the highest incidence of prostitution and vice events in that particular area…wasn't the only area patrolled. It was the whole of Darlinghurst and the whole of Woolloomooloo as well as the entertainment precinct of Kings Cross." [29]

  1. Officer Cruikshank also said that the main crime she came across at the corner of Bourke Street and William Street:

"would be prostitution and drugs which often go hand in hand as well, as well as other street crimes such as possessing implements to break into houses or cars. That would be the main threat." [30]

  1. Officer Findlay testified that this corner was:

"where a lot of the prostitutes ply their trade, as it's one of the few areas in the command that they can, because they can't solicit anywhere near residential areas or churches. So we get a number of complaints from residents just regarding them soliciting out the front of their house, or various other street level crimes, be it drugs or antisocial behaviour." [31]

  1. There was no evidence given about the time of day (3.30am) or the day of the week (Tuesday morning) being the particular times for crime in the area. It is not a matter I could infer from judicial knowledge. Although it may be less common, even far less common, for a person to be sitting on a stone wall in the early hours of the morning, compared to say 3.30pm, there was no evidence that indicated any connection between the time of the day (or the day of the week) and the possession of prohibited drugs, or even offences generally at that location. I reject the grounds of the time of day, and the day of the week as being relevant to the reasonableness of Officer Cruikshank's suspicion.

  2. I referred earlier to Mr Attalla's visual focus. Officer Cruikshank said that Mr Attalla, "immediately stopped texting…when he saw us. I started to form some reasonable suspicion". [32]

  3. Officer Cruikshank said she noticed Mr Attalla when she was 15 metres away. The police car was proceeding north, approaching Mr Attalla. Officer Cruikshank noticed that Mr Attalla looked up from his phone. She said, "He appeared startled. His eyes widened and he maintained a fixated watch on us as our vehicle approached which was a slow speed." [33] The police car was parked within five metres of Mr Attalla.

  4. Even at 5 kilometres an hour, travelling that distance of 10 metres would take about 7 seconds, during which Officer Cruikshank observed Mr Attalla sitting on a ledge, texting on his mobile, then look up, notice the police vehicle, stop texting and maintain his focus on the police and their vehicle. Officer Cruikshank, as the apparent driver, would also have directed some of her attention to where she was parking the car. The duration of her observations could not have been long, but by then Officer Cruickshank had started to form a suspicion.

  5. Officer Cruickshank said that after the conversation quoted above, she formed the opinion that Mr Attalla might have been under the influence of drugs. His eyes were "extremely wide and he was fixated on. He didn't blink at all during the conversation and he had a, a, a strange facial expressions, being a strange smirk on his face as he spoke to me". [34] He remained seated.

  6. I referred earlier to the timing of when Mr Attalla’s attitude towards the police became more aggressive. It is not surprising that a person may become more adamant when it is suggested, especially by the police, that they are untruthful, even more so when they are to be searched because of it. It is unlikely to be a reasonable basis for the suspicion asserted. But I have concluded that Mr Attalla did not alter his demeanour until the proposal of the search was raised. In that event, the circumstance of his changed demeanour does not provide any ground for a suspicion of possessing prohibited drugs, since his demeanour did not change until after the suspicion had been formed and he was told he was required to submit to a search.

  7. Nor do I think that Mr Attalla's attention on the police vehicle or the police when they alighted from the vehicle can have any force as a reasonable ground for a suspicion that he was in possession of prohibited drugs. It is unsurprising that a person's attention (in the early hours of the morning, when there is no evidence of other activity) would be directed to a police car driving towards them with headlights on, only a short distance away, and subsequently, on the officers as they approached and spoke to the person. Any other conduct, such as looking away or ignoring the police, would be peculiar and if anything more engendering of suspicion.

  8. The answers given by Mr Attalla to Officer Cruickshank's questions appeared to be significant to her. But Mr Attalla remained seated, he answered her questions directly, and the circumstance that he was across William Street and 40 metres up Bourke Street, when one of the most direct routes home from the centre of Kings Cross was along the south side of William Street, does not suggest dishonesty, even less so when a 24-hour convenience store is nearby. If his answers were not dishonest, their content could not be suggestive of any criminal offence.

  9. Nor do I accept that an account by Mr Attalla for sitting on the stone wall could, false or true, support a suspicion of possessing prohibited drugs. A false account might support a suspicion that Mr Attalla did not want to disclose the true reason for his presence, but that provides no link to possessing prohibited drugs. Officer Cruickshank appeared ready to find an untruth when there was none, and then used that in her mind to bolster her suspicion.

  10. The only matters raised by Officer Cruickshank that, in my view, have any arguable connection with the suspicion of possessing prohibited drugs are the location of Mr Attalla, and him having the appearance of being under the influence of drugs.

  11. The latter was not supported by any evidence of Officer Findlay. Officer Leech did not give evidence, so there is no corroboration of this opinion or these observations of Officer Cruickshank. I can, and would, infer that Officer Leech's evidence would not have assisted the State on this point. That the State did not plead the grounds for this suspicion until part way through the trial is not a point in its favour.

  12. Further, there was no suggestion that Officer Cruickshank raised this with Mr Attalla, that is, she did not ask him if he had been taking drugs. I am not persuaded that there were any visual signs indicating that Mr Attalla was affected by drugs. In this circumstance, I do not accept that at the time, Officer Cruickshank believed that Mr Attalla was under the influence of drugs.

  13. That leaves the location of Mr Attalla. That may be a matter that could, with other relevant matters, form the basis for a reasonable suspicion, but it is plainly insufficient by itself. Officer Cruickshank, herself, did not form that opinion only on the basis of the location of Mr Attalla. The location did not suggest Mr Attalla to be possessing prohibited drugs any more than it suggested that Mr Attalla was engaged in prostitution or house‑breaking, matters no officer suspected.

  14. For these reasons, I find that there were no reasonable grounds for Officer Cruickshank suspecting that Mr Attalla possessed prohibited drugs, and therefore she had no lawful justification to search him.

  15. Mr Attalla submitted that what is reasonable for Officer Cruickshank to suspect must take into account other matters reasonably capable of being known. There is authority supporting this submission. [35] One such matter was the clean criminal history of Mr Attalla, a matter which would tend to militate against the likelihood of him possessing prohibited drugs. But my conclusions are not dependent on a finding that for the suspicion to be reasonable, Officer Cruickshank first needed to consider Mr Attalla's criminal history.

  16. There is however another reason why Officer Cruickshank was not entitled to search Mr Attalla. Section 32(7) of LEPRA requires:

(7) A search must be conducted by a police officer or other person of the same sex as the person searched or by a person of the same sex under the direction of the police officer or other person concerned.

  1. In other words, Officer Cruickshank, as a woman, was not lawfully entitled to search Mr Attalla, and he was therefore entitled to resist. When she announced the proposed search, only Officer Leech, also a female officer, was present, apart from Officer Findlay who was present only as an observer. The evidence did not indicate that Officer Findlay would conduct the search, or that any words were said to suggest that a person other than Officer Cruickshank would conduct the search.

  2. Officer Findlay's evidence was to the effect that Officer Cruickshank said she "was going to search" Mr Attalla. Mr Attalla's response, "You're not searching me" indicates the same. On Officer Cruickshank's account, she said, "I'm going to submit you to a search," and, "You're going to be submitted to a search." In circumstances where no potential male police officer was present to conduct the search, I am satisfied that these words necessarily connoted a search by either Officer Cruickshank or possibly Officer Leech. The State did not submit otherwise. In that event, an illegal search has been proposed, and for this reason also, Mr Attalla was entitled to resist.

F. Reasonable grounds for suspecting an offence

  1. In order to lawfully to arrest Mr Attalla, Officer Cruickshank must satisfy the requirements of s 99 of LEPRA, which include:

  1. suspecting on reasonable grounds that Mr Attalla is committing or has committed an offence; [36] and

  2. being satisfied that arrest is reasonably necessary for one of a number of listed reasons. [37]

  1. The State alleges that Officer Cruickshank suspected Mr Attalla of hindering police in the execution of their duty, in this case, searching him for prohibited drugs. I have found the search unlawful, so Mr Attalla was entitled to resist the unlawful assault. He was thus not hindering the police in the execution of their lawful duty.

  2. But it is not sufficient for Mr Attalla to be entitled to resist the police. The focus in s 99(1)(a) is the reasonable suspicion of Officer Cruickshank. If she suspected on reasonable grounds that Mr Attalla was hindering police, she may be entitled to arrest him even if she was wrong and Mr Attalla was not hindering police.

  3. Similar to the concession made by Mr Attalla, in respect of Officer Cruickshank's suspicion of him being in possession of prohibited drugs, Mr Attalla did not contest (or resist with any vigour) Officer Cruickshank's suspicion of "hindering". Rather, the focus of the challenge was on whether Officer Cruickshank's suspicion was reasonable.

  4. The alleged unreasonableness of Officer Cruikshank's suspicion was founded on the lack of an entitlement to search. Although Mr Attalla's resistance to a search was the basis of Officer Cruikshank's suspicion or belief that he had committed an offence of hindering police, and that he was continuing to do so, that suspicion is only reasonably based if the entitlement to search exists, or is reasonably believed to exist. The former is the same point which is found against the State already. There was no entitlement to search Mr Attalla because there was no reasonable basis for a suspicion of possessing unlawful drugs.

  5. But could Officer Cruikshank have a reasonable belief of an entitlement to search Mr Attalla, even if her suspicion that he was in possession of prohibited drugs was not reasonably based? I do not think so. The matters which rendered her suspicion of possessing prohibited drugs unreasonable (and which deny her entitlement to search) also render her belief in an entitlement to search unreasonable.

  6. Once Officer Cruikshank has no reasonable belief in an entitlement to search, she can have no reasonable suspicion that Mr Attalla has hindered police in the lawful execution of their duty. And the entitlement to arrest under s 99(1) is unavailable. Accordingly, the arrest is unlawful.

  7. I do not need to decide whether s 99(1)(b) was satisfied in respect of Mr Attalla because the requirement of s 99(1)(a) is not. However, there is force in the submission by the State that Officer Cruikshank was satisfied that the arrest was reasonably necessary to stop Mr Attalla hindering the search [38] so as to allow the search to proceed (if the search was otherwise lawful).

G. The wrist lock, handcuffing and search by Officer Price

  1. Officer Price arrived in a police vehicle just as Officer Leech was laying hands on Mr Attalla to complete the arrest and handcuff him. Officer Cruikshank withdrew to speak with another officer in the arriving vehicle. Officer Price noticed that Officer Leech "appeared to be struggling" with Mr Attalla, "He was pulling away from her, she was trying to contain his arms. I took hold of one of his arms". Officer Price then put Mr Attalla's left arm in a "wristlock" which he described as "an approved technique for pain compliance" whereby the pressure "forces the hand back and affects the…radial nerve". This occurred for up to 30 seconds. Officer Price secured compliance from Mr Attalla. Mr Attalla was then handcuffed with his hands to the rear of his body. Officer Price then performed an "ordinary search" which involves a “systematic” search:

starting from top, working your way down, frisking on the outside of the clothes. If there’s a jumper it can be taken off. Obviously if you’re handcuffed, that’s a bit difficult, but through all pockets, up and down each leg, and with the blade of the hand in the groin area and around the buttocks and around - in the shoes as well. [39]

  1. Officer Price made no notes of the events at the scene. He had no involvement, apart from assisting with the search. He conceded that he put Mr Attalla in a wrist lock and put him in handcuffs, and that both were "for the purpose of searching him". [40]

  2. The lawfulness of Officer Price's actions in applying the wrist lock, the handcuffs and conducting the ordinary search were in issue. The State considered and refused to make an application for a late amendment to its defence to rely on s 24 of LEPRA, a provision which empowers a police officer to search a person who is in lawful custody. The State conceded that no provision other than s 24 was relied on to justify the search, and expressly declined to amend its defence to rely on s 24 in circumstances where the Court decided and announced that s 24 needed to be pleaded to be relied upon. In these circumstances, including that the State proposed to amend to plead s 24 but then withdrew that application after consideration, I cannot, in fairness, allow a defence relying on s 24 to be maintained, whatever might have been its merits had that issue been fully ventilated.

  3. Notwithstanding the State indicating that there was no other provision relied upon, s 230 of LEPRA was pleaded and was raised again in subsequent submissions. Section 230 provided:

230 Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

  1. The State contended that Officer Price was entitled to use reasonable force to assist Officer Cruikshank to search Mr Attalla, perhaps even to arrest Mr Attalla (notwithstanding that Officer Price volunteered that all his actions were for the purpose of the search), without compliance with another provision.

  2. But I do not think s 230 is an independent source of power to exercise a function such as search or arrest. Rather, it permits the use of such force as is "reasonably necessary" to exercise the function. The lawfulness of the function to be exercised (such as arrest or search) is governed by the other provisions, such as ss 24 and 99, that attend the exercise of those powers.

  3. In State of New South Wales v Bouffler, [41] the Court of Appeal stated:

In our opinion, the words and syntax of ss 9(1), 99(2) and 99(3) make it plain that each individual officer who exercises the function must have the requisite state of mind. The use of the indefinite article in the first phrase of each provision, viz: ‘a police officer may’, or ‘a police officer must not … unless’, combined with the use of the definite article in the second phrase, viz: ‘the police officer’, makes this clear.

In this regard, we consider the statement of Meagher JA, Gleeson JA and Adamson J agreeing, in State of New South Wales v McCarthy, at [25], relating to ss 9(1) and 10(2), that the requirements of each provision ‘must be satisfied in relation to each officer who relies upon the power as having authorised his entry’ to be correct. It is apparent from Meagher JA’s construction of the provisions that this conclusion was arrived at independently of the concession made by the State in that case.

The same conclusion applies in respect of the words and syntax of s 99(3) in its form at the time of the incident involving the respondent. Section 99(3) provided that a police officer ‘must not arrest a person … unless the police officer suspects’ one of the matters specified in the paragraphs of the subsection. It is not sufficient that a police officer arrest a person on the instruction of another officer, even if that other officer had the state of mind specified in the subsection.

  1. I note that s 99 has been amended since the occasion to which these comments relate.

  2. The decision in Bouffler also clarifies that if a police officer is "assisting another police officer", these statutory requirements remain. [42]

  3. In that event, there is no legal justification for the force used by Officer Price on Mr Attalla, and it constituted an assault and battery. There is no pleaded defence to this action, and there is no evidence to satisfy the s 99 or s 21 requirements. Mr Attalla is entitled to compensation for this assault.

H. Damages

  1. Mr Attalla claims damages, including aggravated and exemplary damages, for the following conduct:

  1. the assault and battery on Bourke Street by Officers Cruikshank and Leech;

  2. the wrongful arrest on Bourke Street by Officer Cruikshank;

  3. the assault and battery by Officer Price on Bourke Street involving the wrist lock, the handcuffing to the rear, and the search;

  4. the continued unlawful imprisonment after the search, including at Kings Cross Police Station; and

  5. the strip search at Kings Cross Police Station.

  1. Item (e), the strip search, was admitted to be unlawful shortly prior to the trial, and item (d), the continued unlawful imprisonment, was admitted by the State during the trial. As for item (c), no justification for the assault by Officer Price was pleaded, the unlawfulness of the assault was never conceded, and the reliance on s 230 was, at the end of the trial, only faintly maintained. I have found that the conduct of Officer Price in searching and handcuffing Mr Attalla constituted an unlawful assault. I have also found items (a) and (b) - the wrongful arrest and also the relatively low level assault by Officers Cruikshank and Leech - to be established.

  2. Mr Attalla claimed damages according to the following schedule:

Head of damage

General

Aggravated

Exemplary

Assaults/Batteries on Bourke St

$15,000

$10,000

 

Wrongful Arrest/False Imprisonment (from arrest)

$15,000

$15,000

 

False imprisonment (after arrest)

$10,000

$10,000

 

Assault/Strip Search

$20,000

$30,000

 

Combined Exemplary damages

   

$100,000

  1. Thus, the total claim is $125,000 compensatory damages, including $65,000 for aggravated damages, plus $100,000 for exemplary damages.

  2. The State submits that damages should be assessed at $11,000 as follows:

Head of damage

Assessment

Assault (continuation of handcuffing from completion of search to St Peters Street to their removal at the police station)

$1,000

Assault (strip search)

$3,000

False imprisonment (for a period of about 35 minutes)

$2,000

Aggravated damages (for the humiliation)

$5,000

Exemplary damages

$0

Total

$11,000

(a) The arrest and initial imprisonment

(i) Relevant principles

  1. The tort of false imprisonment is a tort of strict liability focussed on the "vindication of liberty and reparation to the victim" rather than any wrongdoing on the part of the defendant. [43] Damages for the tort compensate not only for the loss of liberty, but also for the loss of dignity and reputation. [44] Thus, damages are assessed by reference to the duration of the deprivation of liberty and for the hurt or injury to feelings such as by the "injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment". [45]

  2. There is not "some kind of applicable daily rate". [46] A substantial proportion of the ultimate award is for "the initial shock of being arrested". [47] An "interference with personal liberty even for a short period is not a trivial wrong". [48] In this case, the period of imprisonment was under an hour, although the greater proportion of damages should be awarded for the initial embarrassment of arrest.

  3. Putting aside matters of aggravation, I would allow $15,000 for the wrongful imprisonment, including the arrest on Bourke Street, and a further $10,000 for the continuation of that arrest in the police wagon and at Kings Cross Police Station.

  4. Aggravated damages are compensatory, assessed from the point of view of the plaintiff, whereas exemplary damages are of a punitive or deterrent nature, and focussed on the conduct of the defendant. [49]

  5. Injury to Mr Attalla's feelings caused by the insult, humiliation and the like are a component of aggravated damages, reflecting the circumstance where the manner of the wrongful act aggravated the harm done. [50]

  6. Damages for false imprisonment are to reflect the "disgrace and humiliation" of an arrest. Yet this is also a factor of aggravation. Care must be taken not to double count an item of damage where the various categories of damages are not self‑contained. [51] Compensatory damages, including aggravated damages, must be awarded before considering whether and what exemplary damages should be awarded.

  7. I take into account the aggravating factors that the arrest occurred in the dark of night, in a public place and by multiple police officers. However, this was an arrest where there was no one else evidenced to be present, in particular, no one known to Mr Attalla. Mr Attalla rightly protested his arrest, but that protest was disregarded by Officer Cruikshank. I also take into account that the arrest involved being placed in a caged police vehicle and taken to a police station.

  8. Although the State made concessions about the lawfulness of the continued arrest, the belated and limited nature of those concessions meant that Mr Attalla was forced to undertake litigation with its concomitant stress, worry, time and cost, to establish that which the State eventually conceded. No contrition was expressed by Officer Cruikshank for any item of conduct, a matter that may impact aggravated as well as exemplary damages.

  9. I allow an additional $10,000 for aggravated damages for the wrongful arrest and imprisonment, as mentioned.

(b) The minor assault

  1. I assess $1,000 damages for the relatively minor assault by Officer Cruikshank, accompanied by Officer Leech, in laying hands upon Mr Attalla, against his will in connection with the arrest.

(c) The assault by Officer Price

  1. The assault by Officer Price comprised the wrist lock, the handcuffing, and the search. The wrist lock was designed to, and did, inflict severe pain on Mr Attalla, although it lasted for no more than 30 seconds. The handcuffing was painful. Mr Attalla gave evidence of stating at the time, "You're breaking my wrist. Is this necessary?" Mr Attalla also said that he felt threatened and gave evidence of forceful and insulting language being used. He felt hurt and embarrassment, and an invasion of privacy as his whole body was patted down.

  2. A statement of Mr Attalla, [52] unsigned but dated 4 May 2015, tendered in the proceedings records Officer Leech (the “Taller Officer”) saying to him in Bourke Street during the interaction there, "Shut the fuck up and do as you're told." "You're a fucking smart ass aren't you?" "You'll know when I break your fucking wrist you little cunt." "You're not so smart now are you, you fucking prick." When Mr Attalla asked Officer Leech, "How do you want me to do that when you have got my hands tied behind my back?", in response to being directed to get in the back of the police vehicle, she responded, "I don't give a shit, crawl in."

  3. And when Officer Leech directed Mr Attalla out of the police van, and Mr Attalla asked, "How am I supposed to do that, you have the handcuffs so tight on my wrist", as well as mentioning a knee injury he had suffered previously, Officer Leech said, "That's your fucking problem, not mine. Crawl out." It also records Officer Leech saying at the police station, "Are you a faggot?", "Look at your boobs", and other comments.

  4. I accept that the language was forceful by the police, although the insulting language of which Mr Attalla gave evidence was not initially pleaded and was not referred to in submissions. Yet there was no contrary evidence from Officer Leech and I would accept, in those circumstances, that Officer Leech did voice insulting language to Mr Attalla. But I do not find it as especially significant in aggravating his damages, for the reasons I have just noted.

  5. There is no evidence of long term consequences to Mr Attalla, no evidence of any physical or psychological disabilities occasioned by the assaults, or by other events on the day.

  6. The assaults were aggravated by being done by those in authority and by the forceful language.

  7. The assault by Officer Price was never justified on the pleadings and yet Mr Attalla was again obliged to give evidence of it and to prove it in court. That is also aggravating conduct, increasing the hurt and damage to Mr Attalla.

  8. I note that all of the statements I have referred to from Officer Leech were not just accompanying the assault of Officer Price, but from the time police officers arrived at the scene in Bourke Street, until after the arrival at the Kings Cross Police Station.

  9. I would award $6,000 for the assault by Officer Price, and $3,000 for aggravated damages.

(d) The strip search

  1. Mr Attalla was forced to undertake the degrading experience of removing his pants and underwear, displaying his genitals, lifting up his genitals to display that area of his body behind them, and squat in that state of nakedness. This was done at the direction of Officer Cruickshank in front of two male officers. The State, though not Officer Cruickshank, conceded it to be unlawful, and conceded it to be the most serious of the conduct about which Mr Attalla complained.

  2. Mr Attalla gave evidence that after this ordeal, Officer Cruickshank said, "[Y]ou see, if you just did what we asked you to do, we - this could have all been avoided." [53] Officer Cruickshank accepted that this may have been said, saying, "[I]t's quite possible that I did." [54]

  3. I find that this statement was made by Officer Cruickshank. The statement implies recognition in Officer Cruickshank of the hurt and embarrassment she had caused Mr Attalla, and an assertion, wrongly as I have found, that he, not her, was responsible for all those unlawful and damaging events.

  4. It also indicates that, at least by that stage and perhaps from much earlier, Officer Cruickshank no longer suspected that Mr Attalla possessed prohibited drugs. There was no suggestion, in her comment, of surprise that nothing had turned up on Mr Attalla, even less that what had occurred was an unfortunate mistake.

  5. The State's schedule of damages referred to the humiliation of Mr Attalla from this and other unlawful conduct, but, in my view, grossly understates the appropriate level of damages.

  6. Mr Attalla's damages for the strip search were aggravated by the absence of any evidence explaining the purpose and need for the strip search. Whilst it might be possible that a strip search could reveal drugs on Mr Attalla's person that might not have been revealed by an ordinary search, that was not explained. There was no evidence as to whether alternatives to this invasive procedure were considered.

  7. Requirements in respect of searches, generally, and strip searches, in particular, are imposed in ss 31 and 32 of LEPRA.

  8. Section 31 of LEPRA provides:

31 Strip searches

A police officer or other person who is authorised to search a person may conduct a strip search of the person if the police officer or other person suspects on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out.

  1. Section 32 provided:

32 Preservation of privacy and dignity during search

(1) A police officer or other person who searches a person must, as far as is reasonably practicable in the circumstances, comply with this section.

(2) The police officer or other person must inform the person to be searched of the following matters:

(a) whether the person will be required to remove clothing during the search,

(b) why it is necessary to remove the clothing.

(3) The police officer or other person must ask for the person’s co-operation.

(4) The police officer or other person must conduct the search:

(a) in a way that provides reasonable privacy for the person searched, and

(b) as quickly as is reasonably practicable.

(5) The police officer or other person must conduct the least invasive kind of search practicable in the circumstances.

(6) The police officer or other person must not search the genital area of the person searched, or in the case of female or a transgender person who identifies as a female, the person’s breasts unless the police officer or person suspects on reasonable grounds that it is necessary to do so for the purposes of the search.

(7) A search must be conducted by a police officer or other person of the same sex as the person searched or by a person of the same sex under the direction of the police officer or other person concerned.

  1. Officer Cruickshank admitted a lack of familiarity with the requirements of s 31. The pre-requisites in s 32(2), (3), (4), (5), (6), and (7) were not established on the evidence. Yet the State, to the conclusion of submissions, maintained that the strip search was only a technical breach. Neither of the two male police officers who conducted the strip search gave evidence of a suspicion on reasonable grounds that it was necessary to search the genital area of Mr Attalla for the purposes of the search, as s 32(6) requires. Though apparently acting at the direction of Officer Cruickshank, it seems that there nevertheless remained (unlike in s 99(2) in respect of an arrest) a statutory obligation on the police officers who actually conducted the search to be satisfied of the items in s 32 of LEPRA, even if that satisfaction arises from information supplied by the directing police officer in s 32(7).

  2. Furthermore, it appears that Officer Cruickshank directed that a strip search be conducted after an ordinary search had been conducted that Officer Cruickshank did not observe. An ordinary search had been conducted at the scene, but Officer Cruickshank gave evidence that she was unaware of it. She was thus unfamiliar with what steps had already been taken to check for drugs in Mr Attalla's possession. There was no satisfactory explanation of why Officer Cruickshank, in that belief, did not then direct that an ordinary search be first undertaken. There was no evidence that she or anyone else gave any attention to the matters in s 32 of LEPRA.

  3. Mr Attalla described his humiliation. He said he felt, "Absolutely disgusted. It was outrageous. It was something that I thought I'd never ever be in a position to be treated in such a humiliating fashion". [55]

  4. These contraventions of the requirements of ss 31 and 32 of LEPRA are matters of aggravation, increasing the humiliation of Mr Attalla.

  5. The State points to the following factors in Mr Attalla's conduct in mitigation. That he:

  1. "chose not to permit the search" (which must be a reference to the initial search);

  2. became aggressive towards the officers who were simply performing their duties”;

  3. "chose to continue to refuse a search" after being told it was an offence; and

  4. chose to resist" the handcuffing. [56]

  1. None of these matters are mitigating factors on the damages to be awarded. The officers were acting unlawfully, not "simply performing their duties", and Mr Attalla was entitled to resist the unlawful assault and arrest.

  2. The State also referred, in respect of aggravated damages, to the absence of "members of the public" and "friends or colleagues". I accept this as a matter of relevance to the award of damages, and that it tends to reduce the amount of damages.

  3. The State also said that the force applied during the arrest was minimal, and that there was no evidence of physical or psychiatric injury. The latter point is correct and I take it into account. The former is not, and I reject it. The wrist lock involved significant force and pain, and to a lesser extent, so did the handcuffing of Mr Attalla behind his back. I have taken into account Mr Attalla's inability to discuss the matter with his girlfriend for two weeks, a matter accepted by the State.

  4. The State also concedes that the strip search was "humiliating" and "difficult". The State accepted that the lack of an apology may increase the ordinary compensatory damages.

  5. I would assess damages for this at $20,000 for the strip search, and a further $10,000 for aggravated damages.

I. Exemplary damages

  1. Exemplary damages go beyond compensation, and are a punishment to deter similar future conduct, reflecting the Court's detestation of the conduct. [57] An award of exemplary damages generally requires "conscious wrongdoing in contumelious disregard of another's rights", [58] although, "[c]onduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing". [59]

  2. The State submits that an award of exemplary damages should not follow where their failure is non‑compliance with the strict requirements of LEPRA.

  3. Mr Attalla resisted the description that the unlawfulness of the police officers’ conduct was a minor non‑compliance, and referred to the concession that the continued detention was unlawful, so for that reason alone the subsequent strip search was unlawful.

  4. Mr Attalla gave evidence that whilst at Bourke Street, Officer Cruikshank required him to submit to a strip search. This was alleged to be after a short conversation where Mr Attalla had directly answered Officer Cruikshank's questions and was not "observed…to engage in any behaviour that was even vaguely unlawful". [60] However, I do not find that Officer Cruikshank proposed a strip search at the outset, at least to occur in Bourke Street, a matter of which Mr Attalla testified but which was not put to either Officers Cruikshank or Findlay.

  5. Mr Attalla also referred to the indefensible approach of Officer Cruikshank that Mr Attalla needed to be strip searched, when he had already been subject to a search by Officer Price. Officer Cruikshank had not observed the search by Officer Price, and had not asked Officer Price about it. I accept Mr Attalla's submission that these matters indicate that Officer Cruikshank had resolved to transport Mr Attalla to the police station, and have him strip searched, regardless of the existence and outcome of the previous search.

  6. This conclusion is supported by Officer Cruikshank's statement to Mr Attalla blaming him for the ordeal, quoted earlier, and her lack of familiarity with the restrictive requirements on strip searches imposed by ss 31 and 32 of LEPRA.

  7. I accept Mr Attalla's submission, as I have found above, that the officers forced "a 53 year old man to strip to a naked state, squat and expose his genitals" in the absence of any consideration of the pre‑conditions in ss 31 and 32 for the use of this extremely invasive power.

  8. Mr Attalla referred to New South Wales v Ibbett: [61]

An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government.

  1. These considerations apply at least as strongly in respect of trespasses to the person. The plurality of the High Court in Ibbett [62] endorsed what was said in Adams v Kennedy [63] in relation to the quantum of exemplary damages:

The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen.

  1. The State's concession in relation to the strip search illustrates that the police officers have used a most invasive power without the slightest justification. None of the several requirements in ss 31 and 32 of LEPRA were the subject of evidence or submissions. The grievous nature of the offensive conduct might be mitigated in circumstances of urgency or turmoil, but here the admitted worst offence, the strip search, was done in the relative peace of the police station, where there was no resistance from Mr Attalla. Even this did not produce any consideration of the requirements of the law governing strip searches by any officer, apparently because Officer Cruikshank had some time ago determined to proceed with the strip search. I am not persuaded that she retained a bona fide belief in the need for the strip search to locate the once suspected drugs.

  2. The decision to compel a strip search appeared to be a response to Mr Attalla's lack of submission at the scene. In my view, it warrants a significant award of exemplary damages.

  3. The State referred to the decision of Moses v State of New South Wales (No. 3). [64] In that case, Gibson DCJ awarded exemplary damages of $15,000 for unlawful conduct of the police, which was described thus: [65]

[315] Mr Kawenga got out of the car to go to the help of his friend, only to be pursued, arrested, taken to the police station, strip searched and subjected to a completely unnecessary police interview where he was not asked about the offences the police were investigating. He was upset by being asked questions about his racial background by the police, and is upset that he was asked this question again in interrogatory 19 (T 93). He is a young man of 23 who found the procedure of a record of interview and a strip search frightening, not least because he had no prior criminal record or experience of the police of any kind.

[316] As set out above, I have awarded Mr Kawenga $35,000 general damages. Mr Kawenga should be awarded a further $10,000 for aggravated compensatory damages and $15,000 exemplary damages, making a total of $60,000.

  1. Although the "strip search" in that case might have been of the same nature as that to which Mr Attalla was subjected, it was not described in any detail, nor was there any reference to the provisions in ss 31 and 32. Because the decision was not subject to appeal, it does not have the force of a decision approved by the Court of Appeal. [66] These matters are mentioned not to indicate a doubt about the decision in Moses, but a doubt about the applicability of the amounts awarded in that case to the present matter.

  2. The decision in Moses is in respect of conduct in 2008, some seven years before the present assault and is the subject of a judgment eight years ago. I am not satisfied I am limited to $15,000 for exemplary damages.

  3. Mr Attalla submitted that the exemplary damages of $15,000 awarded in Moses can be presumed not to have produced any change to the State's training and procedure in dealing with strip searches, for some seven or eight years later Mr Attalla was strip searched and no regard was paid to the restrictions on this power in ss 31 and 32 of LEPRA.

  4. I accept that one of the purposes of exemplary damages awards is to bring home to the State the egregious conduct of its officers that needs correction. However, I do not think that the judgment in Moses indicates that I should raise the level of exemplary damages on the basis merely that another instance of an illegal strip search has occurred some years ago.

  5. I recognise that some of the matters to which references have been made in respect of exemplary damages have also been referred to in respect of compensatory damages, including aggravated damages. But the purpose of exemplary damage is to focus on the position of the State and its officers, not on the damage done to Mr Attalla.

  6. In all the circumstances, I would award the sum of $35,000 for exemplary damages, principally in respect of the strip search, but also partly in respect of the wrongful arrest, continued detention and the unjustified ordinary search. These matters manifest an almost reckless indifference by the officers to the statutory safeguards attaching to these invasive powers.

  7. Thus, the amount of damages comprises:

Head of damage

General

Aggravated

Exemplary

Assaults/Batteries on Bourke St

$7,000

$3,000

 

Wrongful Arrest/False Imprisonment (from arrest)

$15,000

$10,000

 

False imprisonment (after arrest)

$10,000

   

Assault/Strip Search

$20,000

$10,000

 

Combined Exemplary damages

   

$35,000

  1. This produces compensatory damages, including aggravated damages, of $75,000, and total damages of $110,000.

J. Costs

  1. The parties accepted that costs should follow the event subject to any further application.

K. Interest

  1. Interest was sought, although it was not the subject of submissions. I would allow interest at 1% per annum on the compensatory component of damages, for the reasons I gave in Shalhoub v State of New South Wales, [67] namely that the rate should be the difference between the return on a secure investment and the inflation rate. [68]

  2. The interest on $75,000 from 24 March 2015 to 29 May 2018 is $2,387.67.

L. Orders

  1. The orders of the Court are therefore:

  1. Judgment for the plaintiff in the sum of $112,387.67.

  2. Defendant to pay the plaintiff's costs.

  3. Liberty to either party to make application to amend order (2), including to seek a special costs order, by notification by email to my associate within 14 days.

**********

Endnotes

1. Exhibit 3.

2. T183/29-39.

3. T70-71.

4. T71-72.

5. T72.

6. T73.

7. T77/5.

8. T189/10, 36.

9. T208/10-22, T213/35-38.

10. T184/41-43, cf T219/17.

11. T291/34.

12. T220/27-T222/8.

13. T187/17-35.

14. T191/40-T192/4.

15. T79/50-81/1.

16. T122/34-38.

17. T123/1-4.

18. T124/15-18.

19. T124/21.

20. T124/33.

21. T131/5.

22. T131/21.

23. T132/2.

24. T296/298.

25. Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; Coote v Kelly; Northam v Kelly [2016] NSWSC 1447.

26. See Watson v Foxman (1995) 49 NSWLR 315 at 318-319.

27. T221/19-20.

28. T216/31-32.

29. T217/30-34.

30. T218/1-3.

31. T185/22-26.

32. T219/33.

33. T219/5.

34. T221/25.

35. Streat v Bauer (Supreme Court (NSW), Smart J, 16 March 1998, unreported).

36. S 99(1)(a).

37. S 99(1)(b).

38. See 99(1)(b)(i), see also (iv) and (v).

39. T163/21-25.

40. T168/1-6.

41. [2017] NSWCA 185 at [47]-[49].

42. See [61], [62].

43. State of NSW v Smith [2017] NSWCA 194 at [153].

44. Goldie v Commonwealth of Australia (No 2) [2004] FCA 156 at [14], Fleming J, The Law of Torts, 8th ed, LBC (1992) at 29, Smith at [154].

45. Trindade and Cane, The Law of Torts in Australia, 3rd Edition, OUP (1999) at 302, Goldie at [14], Smith at [154].

46. Ruddock v Taylor (2003) 58 NSWLR 269 at [49].

47. Ruddock at [49], Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 at 515.

48. Watson v Marshall (1971) 124 CLR 621 at 632; [1971] HCA 33, Smith at [157].

49. State of NSW v Abed [2014] NSWCA 419 at [230], New South Wales v Zreika [2012] NSWCA 37 at [60]-[64]).

50. See Lamb v Cotogno (1987) 164 CLR 1 at 8; [1987] HCA 47, Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40, Abed at [213].

51. See New South Wales v Radford (2010) 79 NSWLR 327 at [97]; [2010] NSWCA 276, Abed at [234].

52. Exhibit J.

53. T94/29.

54. T345/36.

55. T93/31-32.

56. Defendant’s submissions, 13/3/18, at [72].

57. See Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 at 8, State of NSW v Abed [2014] NSWCA 419 at [232].

58. Gray v Motor Accidents Commission (Gray v MAC) (1998) 196 CLR 1 at [14]; [1998] HCA 70, Abed at [232].

59. State of New South v Riley (2003) 57 NSWLR 496 at [138]; [2003] NSWCA 208, Abed at [233].

60. Outline of Plaintiff’s submissions, 21/3/18, at [20].

61. (2006) 229 CLR 638 at [38]; [2006] HCA 57.

62. At [54].

63. (2000) 49 NSWLR 7.

64. [2010] NSWDC 243.

65. [315]-[316].

66. Cf Walter Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 at [93]-[95].

67. [2017] NSWDC 363 at [184].

68. MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 666; [1991] HCA 3 at [13].

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Decision last updated:16 July 2018

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